An  action by the plaintiffs to  recover of the defendant the sum of P17,325.42, with interest at the rate of 5 per cent from the 1st of January, 1907, and costs.

The plaintiff, Francisca Palet y de Yebra, and Agustin Palet y Roca  (the latter now  deceased) were legally married, and as a result of said marriage there were born to them Rosa, Montserrate,  Agustin and Dominga Palet y Palet.  Agustin Palet y Roca died at Barcelona in Spain on the 15th of March,  1900.

Agustin Palet y Roca had been a member  of  the defendant company from the 31st of December, 1896.   After the death  of Agustin Palet y Roca a liquidation was  had of his interests in the defendant company, in accordance with the provisions of the copartnership agreement, dated the 31st of December,  1896,  As a result of this  liquidation and in accordance with a public document (No. 364) dated the 8th of May,  1900, there was found  to be due  to the estate  of  Agustin Palet y Roca from the said defendant company the sum of P115,502.56, which sum the defendant company promised to pay to the heirs of Agustin Palet y Roca,  in  seven  annual installments,  in  accordance with paragraph 5 of the said liquidation, which paragraph 5  is as follows:

"Fifth.  Messrs. Aldecoa & Co.,  and Mr. Sixto Jesus Alvarez Perez on their  behalf, declare that the capital paid into the partnership by Mr. Agustin Palet y Roca, deceased, on January 1, of the  present year, amounts to the sum of P100,000, to which the corresponding amount of the reserve fund, belonging to him, and amounting to P15,502.56, must be added.  They bind themselves  to pay  the said sums to the heirs of Palet  in yearly installments  at  the rate of P16,500.36 each,  except  the last, which will amount to P16,500.40, plus interest at  the rate of 5 per cent per annum, from March 16,  of the present year; the  first installment to be paid on December 31 of the current year, and the other payments on the same date in the years following, and they declare that, according to the agreements entered into in the contract of partnership, the said obligation has a preference over any other obligation which the  partnership might assume during the term of its existence, taking into account, for such purpose, the nature and character thereof."

The  defendant company, in accordance with said  agreement, made the first  payment on the 31st of December, 1900, and each of the successive payments or installments up to the one which fell due on the 31st of December, 1906. The installments' or payments which had been made  by the defendant company prior  to the 31st of December, 1906, had been made to Fernandez Hermanos, as the representative of Francisca Palet y Yebra and her said minor children. The demand for the payment which was due  on  the 31st of December,  1906, was  made by one Joaquin Mustaroz, who represented himself as the  "apoderado de Da. Francisca Palet y Yebra de Oliver."   By the power of attorney which the said Joaquin Mustaroz presented, showing his authority  to collect the said payment  or installment, the defendant discovered that the said plaintiff, Francisca Palet y de" Yebra had contracted a second marriage with  Jose Oliver y  Bauza.  The defendant  company refused to pay the said agent  the said installment (the one due December 31, 1906)  upon the ground that he had no  authority or right to collect the said sum as the agent of Francisca Palet y Yebra de Oliver, in the name of the heirs of Agustin Palet y Roca.

The second marriage of Francisca Palet y de Yebra with Jose Oliver y Bauza is fully admitted  and proved.   (See Exhibit A.)

The theory of the defendant upon which it denied the payment of the said sum  to the  said agent of Francisca Palet y de Yebra is based upon the provisions of the Civil Code, which deprive the mother of her natural guardianship of the minor children by virtue of a second marriage.  The defendant  does not deny  its obligation to the heirs of Agustin Palet y Roca under the contract of liquidation of the 8th of May, 1900.   It  simply denies that the parties demanding payment now have authority to collect the same. The only reply which the plaintiffs and appellees  make to this argument of the defendant is that the defendant had already paid the other installments to the plaintiffs.

Article  159 of the Civil Code provides that "the father, or, in his absence, the mother, is the legal administrator of the estate of the children who are under their authority."

Article  168  of the same  code  provides that "a mother who contracts a second marriage loses her parental authority over her children unless the deceased husband the father of the latter - shall have in his  will made express provision  for the  remarriage of his widow, and  ordered that in such case she .was to preserve and exercise parental authority over their children."

Together with these provisions of the Civil Code, others of the Code of Civil Procedure  are also in force, section 553 of which prescribes that -

"Father or mother natural guardian and  to be appointed guardian  of the estate, if competent. - The father, or, in case of his death or legal disqualification,  the  mother, of a minor child,  is to be deemed the natural guardian of the child, and as such is entitled  to  the custody, and care for the education,  of the minor, but not of his estate, unless so ordered by the court.   It shall be the duty of the judge, in the appointment of a guardian of the estate  of a minor child, to appoint the father or mother or near  relative of the child, preference being given in the order just named; but the court shall have the power to  set aside the  order of preference here provided,  and to appoint any  suitable person as guardian, either of the person or of the estate of the minor, or both, as the best interests of the child may require.   The authority  of the guardian shall  not be extinguished or affected by the marriage of the guardian."

Under the Civil Code in force  in these Islands, which is the same as the present code in Spain, Francisca Palet lost the right  of guardianship over her children because of her second marriage, unless  it be  shown  that her  deceased husband, father of the children,  stipulated in his will that his widow, although she married again, should  retain  and exercise such guardianship over the children by the first marriage; as the existence of such condition is  not shown, as prescribed by article 168, it is clear that Francisca Palet, widow of  Agustin Palet and  mother  of the  said minor children, has at present no right to represent them as  guardian,  and  therefore she  has  no  authority to  collect  any money corresponding to the estate of the children.

Even supposing that the provisions of the section of the Code  of Civil Procedure  above quoted  were applicable in her favor, it would still be necessary that she be appointed tutor  by a competent judge; in the absence of such appointment  she  could not be considered as the  natural guardian of the said children with the right to represent them personally and judicially  before the courts.

It might be argued that the  plaintiff,  Prancisca Palet y de  Yebra,  in  the  present  action might be  permitted to collect that portion of the  said indebtedness  to which she is entitled,  inasmuch as she sues  for herself and in representation of her minor children.   There is nothing in the record which shows to what portion of said indebtedness she is entitled.

The plaintiff,  Francisca  Palet  y de Yebra, having  lost her power to administer the  estate of her minor children, was without authority, conjointly with her  second husband, Jose Oliver y  Bauza,  to confer upon Joaquin Mustaroz y Portell power to administer such estate or to collect moneys due the  estate of  such minor  children, or  to  collect  the same  herself,  unless she had been duly appointed by  the court.

The judgment of the lower  court is,  therefore, hereby reversed, without prejudice to the right of Francisca Palet y de Yebra, if she  is entitled to any portion of  said claim, and  the  proper legal representative of  the said  minor children, to commence another action against the defendant for  the  purpose of collecting  the said  installments, and without any findings as to costs, it is so ordered.

Arellano, C. J.,  Torres,  Mapa, Carson, Moreland, and Elliott, JJ., concur.