Me. Justice Aldeey
delivered tlie opinion of the court.
The question to be decided in this appeal is which of the litigants is entitled to exercise the patria Potestas over their [424]*424two acknowledged natural children. It was admitted in the answer to the complaint that in May, 1915, when the action was brought, one of the children was seven and the other three years of age, therefore they must have been born in 1908 and 1912 respectively. The District Court of Ponce adjudged that the former should remain under the 'patria potestas of the mother and that the latter should be placed under that of the father. The custody of another younger child is not claimed by the father on account of its infancy. Both parties appealed from the judgment and, as is natural, attack it on the ground that each is entitled to the custody of the child adjudged to the other.
Section 222 of the Civil Code, as amended in 1907, provides that the patria potestas over unemancipated legitimate children shall be exercised in the first place by the father, or in ease of his absence, legal incapacity or death, by the mother; that illegitimate children shall be under the patria potestas of the father or the mother who may have acknowledged them, and that if they have been acknowledged by both parents, the rule established for legitimate children shall apply.' Based on this statute, the judgment ordered that the younger child should be delivered to the father in the -exercise of his patria potestas. This was satisfactory to ■the father but not to the mother, who alleges that the child should remain in her custody because while it is true that the patria potestas over the child pertains to the father, its exercise is not absolute and is subordinate to the child’s interests; and that inasmuch as the plaintiff did not take the trouble to visit his children after his return from Spain, indicating abandonment and lack of affection, and as the child is only a little over three years of age and needs the care of its mother, she understands that there are reasons why the mother should have the custody of the child.
However the statute is clear. As admitted by the appellant, it grants the patria potestas in the first place to the [425]*425father if lie acknowledged the child, and the reasons alleged' by the mother for depriving the father of the patria potestas over the child are not included among those prescribed by the statute for that purpose. In discussing this matter in the case of Le Hardy v. Acosta, 18 P. R. R. 438, we said that the conditions and reservations which limit the patria potestas are those specified in our statutes; that section 236 of our Civil Code plainly states the conditions and limitations under which parents may be deprived of the parental authority over their children, or in which the same may be siispended; that to that statute, as to others, the doctrine in the maxim expressio unius est exclusio alterius applies, and that these are the only cases in which the courts can take away, for a shorter or longer period, the right of the father to the control and custody of his children. As none of the facts alleged by the mother against the father are included in section 236 of our Civil Code, it is evident that the father is entitled to the custody of the said child and the court committed no error in so holding.
With regard to the child born in 1908, the question is different.
It is acknowledged by the parties and by the court that amended section 222, to which we referred at the beginning of this opinion, is applicable; but it is contended by the mother and sustained by the court as a ground for the judgment leaving the child in the custody of the mother, that ns the child was born prior to 1911, when section 190 of the Civil Code was repealed by the substitution of another provision, under said section and according to the holding in Vargas v. Gispert, 15 P. R. R. 132, the mother acquired a right of which she would be deprived by the application of .section 222, and for that reason, in order to protect that right, the provision that the father is entitled to the patria potestas over the child should not be applied.
Said section 190 first became a part of our laws with the [426]*426'adoption of the Revised Civil Code in 1902. It reads as-follows: -
“The father of the illegitimate child shall support the mother and the child until the latter has arrived at the age of eighteen years,, including the expenses of education, .and giving the child a profession or trade, in accordance with his social conditions. If after the age-of eighteen years, the child cannot work, because of some physical or mental imperfection, his father shall continue to support 1 him. The support shall consist of a monthly pension in cash paid in. advance. ’1
In the case of Vargas v. Gispert, supra, the child under discussion was horn before the amendment of section 222 of the Civil Code, which provided that the patria potestas should be exercised by the father and mother conjointly, and it was held that as amended in 1907, giving the father preference to the patria potestas, the said section could not prejudice the rights acquired by the mother who already had the patria potestas over her child when the amendment was; enacted; and with regard to the apparent conflict between section 190 and sections 217 and 218 of the same code, the-last two prescribing that the obligation to support may be-claimed when such support is required and that the person obliged to render support may elect either to pay the amount required or to receive and maintain in his own dwelling the person having a right to such support, it was held that as section 190 is specific and section 218 is general, the specific should be followed to the exclusion of the general, and therefore the child should remain in the custody of its mother. It was held also that if section 218 were applied, the mother would be prevented from giving the child the first and most urgent1 care with the means granted to it and would not be supported as prescribed by section 190.
The appellant father contends, however, that that case is not applicable because there the mother acquired the patria potestas conjointly with the father when her child was'born,, and, therefore, was entitled to its custody, whereas in the [427]*427present ease the mother has no right of patria potestas until the father’s incapacity is shown, and that section 190 cannot have the effect of depriving the father of his patria potestas and giving it to the mother after the Legislature has conferred it so expressly upon the former.
We are of the opinion that the father is right, for inasmuch as his eldest child was horn after the Legislature had expressly enacted in 1907 that the patria' potestas pertains to the father and only in certain exceptional cases to the mother, the latter acquired no such right of patria potestas as in the case of Gispert, and that although section 190 remained in force in the code, the right granted by it may be claimed only when the father does not elect to exercise his preferred right to the patria potestas given him by the amendment of 1907, the case of Vargas v. Gispert being distinct.
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Me. Justice Aldeey
delivered tlie opinion of the court.
The question to be decided in this appeal is which of the litigants is entitled to exercise the patria Potestas over their [424]*424two acknowledged natural children. It was admitted in the answer to the complaint that in May, 1915, when the action was brought, one of the children was seven and the other three years of age, therefore they must have been born in 1908 and 1912 respectively. The District Court of Ponce adjudged that the former should remain under the 'patria potestas of the mother and that the latter should be placed under that of the father. The custody of another younger child is not claimed by the father on account of its infancy. Both parties appealed from the judgment and, as is natural, attack it on the ground that each is entitled to the custody of the child adjudged to the other.
Section 222 of the Civil Code, as amended in 1907, provides that the patria potestas over unemancipated legitimate children shall be exercised in the first place by the father, or in ease of his absence, legal incapacity or death, by the mother; that illegitimate children shall be under the patria potestas of the father or the mother who may have acknowledged them, and that if they have been acknowledged by both parents, the rule established for legitimate children shall apply.' Based on this statute, the judgment ordered that the younger child should be delivered to the father in the -exercise of his patria potestas. This was satisfactory to ■the father but not to the mother, who alleges that the child should remain in her custody because while it is true that the patria potestas over the child pertains to the father, its exercise is not absolute and is subordinate to the child’s interests; and that inasmuch as the plaintiff did not take the trouble to visit his children after his return from Spain, indicating abandonment and lack of affection, and as the child is only a little over three years of age and needs the care of its mother, she understands that there are reasons why the mother should have the custody of the child.
However the statute is clear. As admitted by the appellant, it grants the patria potestas in the first place to the [425]*425father if lie acknowledged the child, and the reasons alleged' by the mother for depriving the father of the patria potestas over the child are not included among those prescribed by the statute for that purpose. In discussing this matter in the case of Le Hardy v. Acosta, 18 P. R. R. 438, we said that the conditions and reservations which limit the patria potestas are those specified in our statutes; that section 236 of our Civil Code plainly states the conditions and limitations under which parents may be deprived of the parental authority over their children, or in which the same may be siispended; that to that statute, as to others, the doctrine in the maxim expressio unius est exclusio alterius applies, and that these are the only cases in which the courts can take away, for a shorter or longer period, the right of the father to the control and custody of his children. As none of the facts alleged by the mother against the father are included in section 236 of our Civil Code, it is evident that the father is entitled to the custody of the said child and the court committed no error in so holding.
With regard to the child born in 1908, the question is different.
It is acknowledged by the parties and by the court that amended section 222, to which we referred at the beginning of this opinion, is applicable; but it is contended by the mother and sustained by the court as a ground for the judgment leaving the child in the custody of the mother, that ns the child was born prior to 1911, when section 190 of the Civil Code was repealed by the substitution of another provision, under said section and according to the holding in Vargas v. Gispert, 15 P. R. R. 132, the mother acquired a right of which she would be deprived by the application of .section 222, and for that reason, in order to protect that right, the provision that the father is entitled to the patria potestas over the child should not be applied.
Said section 190 first became a part of our laws with the [426]*426'adoption of the Revised Civil Code in 1902. It reads as-follows: -
“The father of the illegitimate child shall support the mother and the child until the latter has arrived at the age of eighteen years,, including the expenses of education, .and giving the child a profession or trade, in accordance with his social conditions. If after the age-of eighteen years, the child cannot work, because of some physical or mental imperfection, his father shall continue to support 1 him. The support shall consist of a monthly pension in cash paid in. advance. ’1
In the case of Vargas v. Gispert, supra, the child under discussion was horn before the amendment of section 222 of the Civil Code, which provided that the patria potestas should be exercised by the father and mother conjointly, and it was held that as amended in 1907, giving the father preference to the patria potestas, the said section could not prejudice the rights acquired by the mother who already had the patria potestas over her child when the amendment was; enacted; and with regard to the apparent conflict between section 190 and sections 217 and 218 of the same code, the-last two prescribing that the obligation to support may be-claimed when such support is required and that the person obliged to render support may elect either to pay the amount required or to receive and maintain in his own dwelling the person having a right to such support, it was held that as section 190 is specific and section 218 is general, the specific should be followed to the exclusion of the general, and therefore the child should remain in the custody of its mother. It was held also that if section 218 were applied, the mother would be prevented from giving the child the first and most urgent1 care with the means granted to it and would not be supported as prescribed by section 190.
The appellant father contends, however, that that case is not applicable because there the mother acquired the patria potestas conjointly with the father when her child was'born,, and, therefore, was entitled to its custody, whereas in the [427]*427present ease the mother has no right of patria potestas until the father’s incapacity is shown, and that section 190 cannot have the effect of depriving the father of his patria potestas and giving it to the mother after the Legislature has conferred it so expressly upon the former.
We are of the opinion that the father is right, for inasmuch as his eldest child was horn after the Legislature had expressly enacted in 1907 that the patria' potestas pertains to the father and only in certain exceptional cases to the mother, the latter acquired no such right of patria potestas as in the case of Gispert, and that although section 190 remained in force in the code, the right granted by it may be claimed only when the father does not elect to exercise his preferred right to the patria potestas given him by the amendment of 1907, the case of Vargas v. Gispert being distinct. If section 190 is specific, still more specific is the amendment of 1907, and as section 236 enumerates the cases in which the right of patria potestas may be lost, we fail to understand how a person upon whom it was exclusively conferred can be deprived thereof for a reason not specified by the law. Perhaps section 190 creates a right in the mother to be supported, but we need not decide that question here. The father is. entitled to the custody of the child and there is no reason for depriving him of it.
The father also complains of that part of the judgment which holds that the mother and her child are entitled to an allowance for support in proportion to the showing made by the evidence introduced regarding the same, because the question of support was not raised and there was no evidence on that point.
In her answer the defendant only prayed for the dismissal of the complaint, without setting up anything therein, •or in a counter-claim, on which to base a pronouncement of her right to support or an allowance therefor. The evidence, in fact, did not refer to the property which the defendant might have, except in one question, which was excepted to, [428]*428and the answer thereto which showed only the plaintiff’s income derived from rents and the fruits of his labor. There was nothing regarding the needs of the child and the mother nor regarding the plaintiff’s expenses.
We understand that that question was not submitted to the court b}r the pleadings and that as the evidence mentioned was objected to by the plaintiff, the court was without jurisdiction to decide the same.
For the reasons stated the judgment appealed from should be reversed in so far as it denies to the father the custody and patria potestas of his son Jaime, who was born in 1908, and holds that the defendant is entitled to support, and confirmed as to the patria potestas of the father over his natural daughter Rosa.
Reversed in part.
Justices Wolf and del Toro concurred.
Chief Justice Hernández and Justice Hutchison dissented.