tate, L. 12. tit. 8. lib. 5. Rec.25 [L. 1. tit. 22. lib. 10. Nov. Rec.]; if within a year, the parties interested do not appear;26 so that the cognisance (conoicimiento) of the said property belongs to the ordinary judges, Cédula of 9th October, 1766.27

§ 6. In order to remedy the abuse, which was observed when the case of succession (ab intestato) happened, by the secular or ecclesiastical judges interfering to take possession of the property under the pretence of making an inventory, or of disposing of the fifth of it for the soul of the deceased, it was ordered by Royal Ordin. of 2d February, 1766,28 [L. 14. tit. 20. lib. 10. Nov. Rec.], that thenceforward no judge should take possession of the property of intestates, but that it should be delivered entire to the heirs, conformably [122] with what is laid down in L. 10. tit. 4. lib. 5. Rec.29 [L. 13. tit. 20. lib. 10. Nov. Rec.], who are to dispose of the fifth for the abovementioned purpose; and if they omit to do it within the year, they may be compelled thereto by the judges. It is also provided by Ll. 2. and 3. tit. 9. lib. 1. Rec. [L. 3. tit. 20. lib. 10. Nov. Rec.], that the orders of "Trinidad and Merced" may not obtain the uncertain legacies (mandas inciertas), nor the fifths of the property of those who die ab intestato, leaving relations within the fourth degree.

25 L. 6. tit. 13. P. 6. says, as does also L. 23. tit. 11. P. 4., that in default of such, husband and wife may succeed to one another; vide also Paz. Prax. 1. T. p. 125, n. 1. and 2.; but the law quoted in the text is later than the laws of the Partidas referred to, although it contains no express repeal of the provision in the laws of the Partidas.

26 This does not form any part of L. 1. tit. 22. lib. 10. Nov. Rec., as it would seem to do from the text, but is part of L. 2. ibid.; which directs cosas mostrencas to be delivered to the judge of the place or jurisdiction where found; and if unclaimed within a year, de clares them forfeited to the crown (camara).

21 Nota 1. tit. 22. lib. 10. Nov. Rec.

28 See L. 14. tit. 20. lib. 10. Nov. Rec.

29 Ibid.

TITLE V.

OF SUBSTITUTIONS, ENTAILS, AND LEGACIES.

[126] THE Succession ab intestato and that by testament being already known, it remains for us to explain here the other things which, as accessary thereto, testators are wont to express or declare in their last wills.

Cap. 1. Substitute is another heir who is established by the maker of the will, in the second, third, fourth, &c., degree after the first heir, L. 1. tit. 5. P. 6. [L. 1. tit. 5. P. 6.]; this is established by substitution' vulgar, pupillar, exemplar, and fidei commissary. Vulgar substitution takes place when the substitute is appointed, in case the heir will not or cannot be such, L. 1. tit. 5. P. 6. [L. 1. tit. 5. P. 6.] Substitution pupillar) is only appointed to the male minor under fourteen and the female under twelve years of age, being under the patria potestad, Ll. 1. and 5. tit. 5. P. 6. [Ll. 1. and 5. tit. 5. P. 6.] Similar to this is the substitution exemplary or quasi pupillar, by which the father appoints an heir to his child if he dies mad, L. 1. tit. 5. P. 6. [L. 1. tit. 5. P. 6.] Substitution (fidei commisaria) is made by giving it in trust (poniendo en fe) to some one appointed heir, to hold the inheritance for a given time, that he may deliver it afterwards to another, L. 14 tit. 5. P. 6. [L. 14. tit. 5. P. 6.]

As the end or object of these substitutions is that the testator may not remain without heirs by the death or unwillingness to accept of the person named or instituted, it is understood that the first event being expressed in any substitution, the other is also considered as expressed, L. 2. tit. 5. P. 6. [L. 2. tit. 5. P. 6.]

The substitution is to be subject to the rules which, according to our laws, testators ought to observe in establishing an heir; because the former not being at liberty to establish or institute whomsoever they please, neither can they appoint a substitute but to their immediate successor.

This idea being formed, the following consequences are drawn from it: 1st, That as there are necessary, and discretionary, or arbitrary (arbitrarios) heirs, so there are also necessary and discretionary sub[127] stitutes. 2d, That necessary substitutions ought always to be appointed when there are necessary heirs; and discretionary ones only in default of them, or as to the remnant of the fifth of the pro

1 Or conditional institution. Vide Halifax Roman Law, p. 38. 39. 42. and 43. 1st Browne, Civil Law, c. 1. p. 331. note 109.; and Wood, Civil Law, Book 2. ch. 4. p. 187. to 189.

2 Has only place as to herederos extranos; vide 1st vol. Febr. ad. p. 76. n. 111.: also L. 1. tit. 18. lib. 10. Nov. Rec.

3 Trustec.

perty, the free disposal of which is left to the testator; or rather as to a third of it if he substitutes from among his children, ascendants, &c. Sd, That for the creation of the first the rules only apply which we have pointed out for the appointment of heir, and many laws of the 5th tit. 6th partida, only take place in regard of the second, as having their rise from the Roman law, which allowed to the testator more liberty as to the disposal of his property. 4th, That the substitution pupillar of the adopted child of which L. 9. tit. 5. P. 6. [L. 9. tit. 15. P.6] speaks, takes place in the case where he may succeed to his adoptive father. 5th, That although the male minor of fourteen, or female of twelve, enters into puberty or on the inheritance, in case of their death the substitute will succeed, provided he is next of kin; whence we may infer, that not only does the vulgar substitution comprehend the pupillar, as says L. 5. tit. 5. P. 6. [L. 5. tit. 5. P. 6.], but that also does the pupillar comprehend in this sense the vulgar; and thus neither the puberty of the minor nor the possession (incorporamiento) of the inheritance ought to be counted among the modes of putting an end to the necessary substitution; but as well the vulgar as the pupillar is at an end by the death of the substitute, or the nearest relation of the heir being alive. 6th, The same ought to be applied to the exemplary or quasi pupillar substitution, with the difference that, with regard to that which puberty produces in the pupillar, the prudence or sanity of the person who was mad produces in the exemplary or quasi pupillary. Discretionary or arbitrary substitutions belong to entails (mayorazgos) which being peculiar to our nation, form the principal object of this chapter.

Cap. 2. Entail (mayorazgo), is the right of succeeding to the property which is left, with the condition of its being perpetuated in the family, so that it may pass to each first born by reason of succession, Molina de Hisp. primogen. lib. 1. cap. 1. n. 22.

§1. D. Gaspar de Criales, in the referred to order, or carta, of 1646. p. 30., proves that, in his time, the most ancient private intails did not exceed three hundred years in establishment; and [128] shows, in his dissertation on it, how prejudicial their establishment has been to the state of husbandry or agriculture, and to population.

It is a common opinion, that the origin and rule of these entails must be looked for in the ancient succession of the kingdom, before

4 Vide Halifax, Rom. Law, p. 38. notes.

Did, p. 39. n. 67.

* Entails are as common, at least as well known, in England, &c. as in Spain. In the latter country, the future creation of them is prohibited; and the whole doctrine respecting their establishment rendered of little use or regard, by the alteration of the old rules, as applying to those now in existence in Spain, under a law recently passed by the Cortes on the subject. As regards Trinidad, the laws of Spain, in force in that island at its conquest by the British arms, are observed, except in so far as they have been since repealed or altered by his Majesty: but as respects the law of Mayorazgos, no change has taken place. The rules, therefore, in the text, fully apply in the case of property which may be in that situation in the island, although it is believed there is very little, if any, there so circumstanced.

N. B. This note was written in the commencement of 1821.

it was altered by Auto 5. tit. 7. lib. 5. Rec. [L. 5. tit. 1. lib. 3. Nov. Rec.], and which is laid down in L. 2. tit. 15. P. 2. [L. 2. tit. 15. P. 2. in these words: "The wise and enlightened considered it right, that no one should have the sovereignty of these kingdoms but the eldest son, after the death of his father. And, to prevent many evils which might happen, or be committed, they determined that those of the direct line should always inherit the dominion or sovereignty of the kingdom; and thence they established, that if there was a son, and he would not have it, the eldest daughter should inherit the kingdom. And they also ordered, that if the eldest son should die before he inherited, and should leave a son or daughter of his lawful wife, he or she should inherit, and no other. But if all these should fail or die, the nearest relation ought to inherit the kingdom, being a man fit for it (seyendo home para ello), and not having done any thing for which he deserved to lose it."

§ 2. Hence have resulted the two kinds of entails, regular and irregular. The regular is that in which the inheritance descends according to the ancient order of succession in the kingdom. The irregular is understood that in which the succession varies, Roxas de Incomp. Part. 1. c. 6. § 1. n. 21. and 22. Molina affirms, lib. 2. c. 2. n. 19., that entails followed the order of the succession of the kingdom, until by L. 13. tit. 7. lib. 5. Rec. [L. 8. tit. 17. lib. 10. Nov. Rec.] it was ordained, that the females of nearest lineage and kindred (de mejor linea y grado) should not be considered excluded, and should be preferred to more remote males, unless the testator disposed otherwise, excluding females clearly and distinctly, without conjectures being sufficient for the purpose.

§ 3. Entails are founded or established upon testament or by contract. The first must be reduced to writing; but this is not necessary with respect to the second, Molina, lib. 2. c. 8. It follows from this, 1st, That the entail made by way of contract cannot be revoked, if possession of the property hath been delivered, or it hath been made for an onerous cause, or consideration, as marriage, &c., nor [129] even that which is made by last will, if the writing hath been delivered (si se entrego la escritura); although under such circumstances both may be varied by the royal permission, L. 4. tit 7. lib. 5. Rec. [L. 4. tit. 17. lib. 10. Nov. Rec.] 2d, That persons who cannot contract, nor make wills, cannot found or establish entails. 3d, That the son de familias (under the patria potestas), shall not be able to do it without the permission of his father, excepting it be of property acquired by him in war (bienes custrenses). With respect to the

7 This rule of descent or succession is conformable with the laws of England. 8 Palacios on this (n. 1.) observes, that Molina, in the same chapter, 8, says, he had never seen any mayorazgo founded without writing or deed; and that with respect to those founded with the royal permission, a writing or deed is necessary for the proof of this license: that as at the present day no mayorazgo can be established without the royal license, by L. 12. tit. 17. lib. 10. Nov. Rec., it is seen that a writing or deed is necessary in all mayorazgos or entails.

power of a person of a religious order to do so, see Molina, lib. 4. c. 9. a num. 53. From what has been said in the antecedent title, with respect to the lawful share (legitima) of descendants and ascendants, it is understood that the royal permission is necessary to found or establish an entail of all a person's property by reason of the prejudice which ensues to the necessary (forzosos) heirs. Hence it is deduced, 1st, That the founder should assign to the rest of his children dote and competent aliment, Molina, lib. 2. c. 1. n. 26.; and this obligation to furnish dote and aliment passes to the successors of the entail, as Molina explains L. 2. c. 15. and 16. 2d, That if all the children give their voluntary consent (no forzado), the entail may be founded without the royal permission, Molina, lib. 2. c. 3. 3d, That the instruction or information? should precede the royal license, unless the entail already founded is approved, L. 3. tit. 7. lib. 5. Rec. [L. 2. tit. 17. lib. 10. Nov. Rec.] 4th. That in order to found an entail of the remnant of the fifth and the third, the royal permission is not necessary, L. 11. tit. 6. lib. 5. Rec.10 [L. 11. tit. 6. lib. 10 Nov. Rec.] 5th, That if the founder have only one son, as he necessarily succeeds to the third, he shall not be able to burthen it (gravarle) without the royal permission, although this exception must be understood with some limitations, which may be seen in Molina, lib. 2. c. 11. a. n. 4. al. 9. 6th, That husband and wife may institute an entail without license, of that property of which they may freely dispose, Molina, lib. 1. c. 7. 7th, That the priest (prelado) may found it of his patrimonial property, and of no other, Molina, lib. 2. c. 10.

The founder is at liberty to impose any reasonable conditions which he may think fit. And thus, 1st, If any one is ap- [130] pointed on condition of doing a specific thing, and not otherwise, if he does not perform it, he is understood not to be appointed, and must restore the fruits of the estate. 2d, That a condition that the grantee shall marry such a one of such a family may be imposed. See Molina, lib. 2. c. 12. á num. 34. and all c. 13.

§ 4. On the similitude of private entails with the succession of the crown, are founded the following principles. 1st, That every entail be indivisible, passing from one first-born to another. 2d, That this indivisibility follow the certain order of succession. 3d, That the entails be perpetual in the family of the founder. From the first principle, which is found confirmed by Molina, lib. 1. c. 11., it follows, that in the succession, or among the issue, the first-born is preferred, unless he be illegitimate (espurio), Molina. lib. 3. c. 1.; but in case of doubt, as when it cannot be declared which of two sons was first born, a division" is admitted, L. 2. tit. 33. P. 7. [L 2. tit. 33. P. 7.]

Required, it is presumed, by L. 12. tit. 17. lib. 10. Nov. Rec., respecting the value of the property to be entailed, the rank or condition of the family of the intended founder, &c. See this law.

10 See also L 12. tit. 17. lib. 10. Nov. Rec.

11 Of the estate tail.

VOL. I.-18