demned intercourse 16 (dañado ayuntamiento), L. 7. tit. 8. lib. 5. Rec. [L. 5. tit. 20. lib. 10. Nov. Rec.] which amends L. 11.18 tit. 3. P. 6. 4th, Illegitimate children do not inherit, but in default of legitimate children; but they must be made legitimate by a subsequent marriage, or by the royal authority,19 L. 10. tit. 8. lib. 5. Rec., and L. 9. tit. 15. P. 4. [L. 7. tit. 20. lib. 10. Nov. Rec. L. 9. tit. 15. P. 4.] § 2. The establishment of heir ought to be made in a complete or finished testament (acabado) and not in any other writing,20 L. 7. tit. 3. P. 6. [L. 7. tit. 3. P. 6.], with his express nomination, absolutely or conditinally.

Hence it follows, 1st, That the institution of heir cannot be made in a codicil, unless it takes its force or effect from some clauses expressed in the testament; but if it be declared by the testament, that a part of the testator's property shall be assigned by the codicil to the heir named in the testament, and no expression or specification of this part is afterwards made in the codicil he shall be absolute heir of the testator's property, which is not devised or bequeathed to another, L. 9. tit. 3. P. 6. [L. 9. tit. 3. P. 6.], and if there were two persons so appointed, they shall inherit equal parts, L. 9. tit. 3. P. 6. [L. 9. tit. 3. P. 6.] 2d, The heir named or appointed by the will, cannot be set aside or deprived of the inheritance by the codicil,21 although a person may be substituted by it to succeed him, L. 7. tit. 3. P. 6. [L. 7. tit. 3. P. 6.] 3d, A person being once absolutely or unconditionally instituted heir by the testament, cannot be saddled with any condition by the codicil, L. 8. tit. 3. P. 6. [L. 8. tit. 3. P. 6.] 4th, If there be two persons of the same name, some particular cir[108]cumstance should be expressed, in order that the intention of the testator may be known and clearly understood, L. 10. tit. 3. P. 6. [L. 10. tit. 3. P. 6.] 5th, That this circumstance should not be defamatory (infamatoria) because it annuls the establishment of heir; although it will not produce such effect, if the testator only speaks ill of him generally, L. 10. tit. 3. P. 6. 6th, That the nomination or appointment is not valid, if a mistake be made in the person of the heir, L. 12. tit. 3. P. 6. [L. 12. tit. 3. P. 6.] 7th, That a person being established heir of a certain part of the testator's property, if no

16 This is wrong. The law cited prohibits such from inheriting from their mothers, either ex testamento or ab intestato; but permits the mother to give during life, or to bequeath to them, the 5th part of her property, and no more, which she is allowed to dispose of for the benefit of her soul.

17 Such for which the mother is liable to suffer death. See. L 5. tit. 20. lib. 10. Nov. Rec.

18 The citation is erroneous; it is supposed L. 4. of the same title and part. is meant. 19 If legitimated by royal authority, they are excluded from inheriting by the subsequent birth of legitimate children, or by the connubial legitimation of illegitimate ones, although they are on an equal footing with both the others, as to honors and pre-emi. nences, and other things in right of their parents. See L. 7. tit. 20. lib. 10. Nov. Rec., cited.

20 i. e. codicil. See the law cited. 21 See note 14.

other heir is appointed, the first will be heir of the whole property22 (provided there be no necessary (forzosos) heirs of the testator), and if in the same manner there be two persons appointed, they shall divide the inheritance in the above case; which rule is also understood to take place in the case of one person being named heir of one portion of the property, and two persons of the other proportion, L. 14. tit. 3. P. 6. [L. 14. tit. 3. P. 6.] 8th, That if the poor people of any city be left heirs, the appointment will be understood to regard those who may be found disabled in the hospitals, and not those who ask charity in the streets; and if no particular place or city is specified, the poor of the place where the will was made, will be the heirs, L. 20. tit. 3. P. 6. [L. 20. tit. 3. P. 6.] 9th, That if the establishment of heir is made to take effect at or from a certain day, the time will be considered as not expressed,23 L. 15. tit. 3. P. 6. [L. 15. tit. 3. P. 6.] Condition is a sort of declaration which testators are wont to express in the establishment of heirs, for the purpose of extending to them the enjoyment of the inheritance, or of the bequest, until the condition be fulfilled, L. 1. tit. 4. P. 6. [L. 1. tit. 4. P. 6.] Conditions are express or tacit. Some relate to the time past, others to the present, and others to the future. Of these some are possible and others impossible. The impossible ones cannot be fulfilled, either as being contrary to nature, or to law, or to fact, or for being doubtful and obscure. Of the possible conditions some depend on the power of men, others on contingency, and others on both together, L. 1. tit. 4. P. 6.

The condition of time past, present, and future, is valid in the institution, L. 2. tit. 4. P. 6. [L. 2. tit. 4. P. 6.] Impossible conditions against nature do not vitiate the nomination of heir, and are considered as not expressed, L. 3. tit. 4. P. 6. [L. 3. tit. 4. P. 6.] The same we say as to the impossible conditions against law, under which title are comprehended those that are immoral, and [109] contrary to piety, good manners, and the law of nature, Ll. 3. and 6. tit. 4. P. 6. [Ll. 3. and 6. tit. 4. P. 6.] Conditions contrary to fact, those which are doubtful and obscure, vitiate or invalidate the institution of heir, L. 5. tit. 4. P. 6. [L. 5. tit. 4. P. 6.]

Possible conditions must be first performed before the person named heir can obtain possession of the inheritance or bequest, Ll. 7, 8, and 9. tit. 4. P. 6. [Ll. 7, 8, and 9. tit. 4. P. 6.] The tacit, or silent condition is that which is understood to be the will of the testator. See L. 10. tit. 4. P. 6.24 [L. 10. tit. 4. P. 6.]

22 It would seem that the testator's heir at law would, in this case, take or inherit the remainder, or undisposed part of the testator's property, under L. 1. tit. 18. lib. 10. Nov. Rec.; which law directs this course in the case of there being no heir at all instituted or appointed under the testator's will.

23 In other words, the appointment will take effect immediately on the death of the testator: but it is said by Palacios, in a note on this passage, that Law 1. tit. 18. lib. 10. Nov. Rec, alters this provision in L. 15. tit. 3. p. 6.; and that such an appointment will take effect according to the testamentary direction, and the intention of the testator.

24 The case put is, if testator have two sons, and leave his property equally between

But it is to be observed, 1st, That if two persons be established heirs, one conditionally, and the other purely, the first will not prevent the latter from immediately obtaining his proportion of the inheritance, L. 12. tit. 4. P. 6. [L. 12. tit. 4. P. 6.] 2d, That if there be many conditions together, or joint, all ought to be fulfilled, in order that the establishment may be valid; and if they are separate at the election of the heir, it will be sufficient that he fulfil one, L. 13. tit. 4. P. 6. [L. 13. tit. 4. P. 6.] 3d, That if the condition fails to be fulfilled by fault of him who imposed it, the nomination of heir is valid. See Ll. 14, 15, and 16. tit. 4. P. 6.25 [Ll. 14, 15, and 16. tit. 4. P. 6.]

27

§ 3. With respect to the mode in which a testator may dispose of his property, it is an indisputable principle of the laws of Castille, that if he have children or grandchildren, &c., he must necessarily institute them heirs, and can only dispose in favor of strangers,26 or other persons, of the remnant of one-fifth of his property; because, out of this, before all things, are defrayed the expenses of interment, masses, &c.; and, in the second place, he has the privilege or liberty of bettering (mejorar) any of his children or grandchildren he shall please, by the addition of the third, (that is, the third part of his property, the fifth being deducted,) L. 9. tit. 5. lib. 3. Fuero Real. L. 13. tit. 6. lib. 5. Rec. and L. 214. de Estilo. [L. 9. tit. 20. lib. 10. Nov. Rec.] In default of children and grandchildren, (descendientes,) a testator must devise or bequeath in favor of his fathers and grandfathers, or ascendants, if he should have any, with the exception of the third,TM of which he can dispose freely; and this takes place if there be no custom to the contrary, L. 1. tit. 8. lib. 5. Rec. [L. 1. tit. 20. lib. 10. Nov. Rec.]

both, with benefit of survivorship, and one son die, leaving issue, the law interprets the testator's will to be, that the children shall take their father's share, and not their surviving uncle. The interpretation is different if the devisees be two strangers, and not the sons, (or heirs forzosos of the testator,) who would take according to the real meaning of the words of the devise.

25 There is a case mentioned in L. 14. tit. 4. p. 6., in which, although the condition fails to be performed without the fault of him who imposed it, yet the establishment of heir does not take place; as if the condition should be, that such a woman should be heir of testator, if she married with such a person; then, if either should die before the fulfil ment of the condition, the appointment would not take place; and no condition can be imposed to the prejudice, or in regard, it is presumed, of the legitimate shares of the inheritance of necessary heirs.

26 Collateral relations are so considered in this respect.

27 Palacios (nota 2) on this passage says, that a parent may better (mejorar) any one of his children by the bequest or devise of the third and the remnant of the fifth (en el tercio y remnante del quinto) of his property, provided he should not dispose of the rem nant of the fifth in favor of a stranger; and that is what is said with respect to the tercio being the third part of the property, after the fifth being deducted, is understood when both mejoras of third and fifth (tercio y quinto) have been granted; and the testator should not wish the tercio to be deducted before the quinto: and sce L. 3. tit. 6. lib. 10. Nov. Rec.

29 It seems by L. 6. tit. 20. lib. 10. Nov. Rec., that a testator may bequeath in entire prejudice, or exclusion of his parents or ascendants, in favor of his natural children, provided he has no lawful children or descendants. See this law.

From this principle we conclude, 1st, That if the testator has no necessary (Forzosos) heirs who have been mentioned, he may leave his property to strangers, L. 3. tit. 5. lib. 3. Fuero Real; which title includes relations who are not of the descending or ascending line, L. 21. tit. 3. P. 6.; [L. 21. tit. 3. P. 6.;] and in such case may take place what is laid down in Ll. 16, 17, 18, and 19. tit. 3. P. 6.29 [Ll. 16, 17, 18, and 19. tit. 3. P. 6.] 2d, That the agreement between husband and wife to inherit reciprocally the property of each [110] other, if they have no children, is valid,30 L. 9. tit. 6. lib. 3. Fuero Real. 3d, That he who has no natural children, may leave his adoptive child his heir, L. 5. tit. 6. lib. 3. Fuero Real. 4th, That although the illegitimate children of the mother may not inherit her property, if she has legitimate ones, she may bequeath them a fifth, even though the offspring of condemned connection, (de dañado coito,) L. 7. tit. 8. lib. 5. Rec. [L. 5. tit. 20. lib. 10. Nov. Rec.] 5th, The father may also leave to his bastard and legitimated child the fifth of his property, [L. 3. tit. 6. lib. 3. Fuero Real; and L. 10. tit. 8. lib. 5. Rec., [L. 7. tit. 20. lib. 10. Nov. Rec.,] and in this manner must be understood, L. 8. tit. 8. lib. 5. Rec.31 [L. 6. tit. 20. lib. 10. Nov. Rec.] 6th, That neither during life nor at death, can a testator grant or bequeath in mejora more than one-fifth,32 L. 12. tit. 6. lib. 5. Rec. [L. 8. tit. 20. lib. 10. Nov. Rec.]

With respect to the third (tercio) of the inheritance, it is inferred from the aforesaid axiom, 1st, That in regard of the mejora of the third, conditions, burthens, (gravamenes,) entails, (mayorazgo,) trusts, (fideicomiso,) charges, &c., (vinculos,) may be imposed or created among the lawful descendants, and afterwards among the illegitimate; and in default of these, among the ascendants; and in default of these, among collateral relations; and lastly, among strangers, L. 11. tit. 6. lib. 5. Rec. [L. 11. tit. 6. lib. 10. Nov. Rec.] 2d, That the mejora of the third in favor of children and descendants may be revoked until the hour of death, except the possession hath been delivered, or the deed of writing executed before an escribano, or was made for an onerous cause, as marriage,34 L. 1. tit. 6. lib. 5. Rec. [L. 1. tit. 6. lib. 10. Nov. Rec.] 3d, That if fathers covenant

As to the division, into as many parts as the testator pleases, &c. of his property. 30 Palacios, in note (1) on this passage, says that this agreement between husband and wife, (hermandad,) would not be valid, although they should leave no lawful descendants or children, if they should leave ascendants or parents, if it were in prejudice of the latter; because, by L. 1. tit. 20. lib. 10. Nov. Rec., the property of the descendants is the inherit. ance and lawful right of their ascendants, excepting the third, if the former die without children or lawful descendants.

31 See Note 28, p. 104. ante.

32 See Note 27, p. 104. ante.

33 See L. 12. tit. 17. lib. 10. Nov. Rec. Neither entails, charges, nor perpetual burthens, can be established or impossd without the royal permission.

34 It is besides necessary that, in such cases, no power hath been reserved in the contract to revoke it, nor that there exist any of those causes which are considered just or sufficient in law to revoke donations. See L. 1. tit. 6. lib. 10. Nov. Rec., cited in the

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by contract to meliorate, (mejorar,) or not to do so, they are bound to fulfil the covenant, L. 6. tit. 6. lib. 5. Rec. [L. 6. tit. 6. lib. 10. Nov. Rec.] 4th, That the melioration may be made in favor of the grandchild, although the father dies, L. 2. tit. 6. lib. 5. Rec. [L. 2. tit. 6. lib. 10. Nov. Rec.] 5th, That the faculty or power of meliorating (mejorar) by tercio and quinto cannot be committed to another,35 L. 3. tit. 6. lib. 5. Rec. [L. 3. tit. 3. lib. 10. Nov. Rec.] 6th, That the heir should pay the mejora out of the property pointed out by the testator, except it cannot be divided, in which case he shall pay the value in money, L. 4. tit. 6. lib. 5. Rec. [L. 4. tit. 6. lib. 10. Nov. Rec.] 7th, That the person meliorated may renounce the inheritance, and accept the melioration, (mejora,) paying first the debts, and deducting them pro rata from the said mejora, L. 5. tit. 6. lib. 5. Rec. [L. 5. tit. 6. lib. 10. Nov. Rec.] 8th, That the value of the mejora must be considered with reference to the period of the death of the testator, L. 7. tit. 6. lib. 5. Rec. [L. 7.'tit. 6. lib. 10. Nov. Rec.] 9th, That the mejoras of the third and fifth are not taken out of [111] "Dotes," donations propter nuptias, and other donations which shall be brought into collation, (colacion,) L. 9. tit. 6. lib. 5. Rec. [L. 9. tit. 6. lib. 10. Nov. Rec.] 10th, That the mejora is valid, although the testament be set aside on account of preterition or disinherison, L. 8. tit. 6. lib. 5. Rec. [L. S. tit. 6. lib. 10. Nov. Rec.] 11th, That if the parents, by testament or by contract or deed, make a donation to one child, such child is understood to be benefited (mejorado) in the amount of the third and fifth in addition to the lawful part or share (legitima36) of the parent's property, although they may not so express it, L. 10. tit. 6. lib. 5. Rec. [L. 10. tit. 6. lib. 10. Nov. Rec.]

From all that has been said, we draw one general conclusion, that all the property of the parents is the lawful portion or right (la legitima) of the children, with the exception of a fifth; and the property of the child, who dies without issue or descendants, belongs of right, (son legitima) to the parents, with the exception of a third, for any regard to the Falcidian and Trebellian portions of the Romans, of which tit. 11 P. 6. speaks, is totally foreign from our law at this present.

Cap. 3. All that we have said with respect to necessary heirs (he

35 Rather that the power of assignment of the mejora cannot be committed to another. See L. 3. tit. 6. lib. 10. Nov. Rec. quoted; but L. 1. tit. 19. lib. 10. Nov. Rec. says, that the fidei comisario cannot mejorar without a special power for that purpose.

36 That is, such gift, with reference to its amount, shall be considered as though given to the child by way of the third and fifth, and its legitimate share of the parents' property; but if such donation should exceed in value the third and fifth, and legitima, it is presumed the excess would be void; and with respect to any gift from father to daughter, by way of dote or marriage portion, this would be reckoned as part of her legitima of her father's property; and if the amount or value of the dote should exceed her legitima, the excess would be invalid, and would not be considered as a mejora of tercio y quinto, according to Azevedo, whom see on L. 10. tit. 6. lib. 5. Rec., n. 6. and 22.; which is L. 10. tit. 6. lib. 10. Nov. Rec.