§ 1. It having been before observed in the Third Title of this Book, that no one can bequeath, nor dispose, in favor of a stranger, or for the benefit of his soul, of more than the fifth of his property, if he have necessary (forzosos) heirs, it is evident, 1st, That if there be descendants, the legacies cannot exceed the fifth, or even the third, if it be among children, L. 11. tit. 6. lib. 5. Rec. [L. 11. tit. 6. lib. 11. Nov. Rec.] 2d, That if the necessary heirs are ascendants, the legacies may amount to the third of the property, L. 1. tit. 6. lib. 5. [136] Rec. [L. 1. tit. 6. lib. 10. Nov. Rec.] Under these rules, the doctrine of legacies will be understood; which, being conformable to the Roman law, is found collected in the 9th Title, 6th Partida 24, without the necessity of repeating it here.

§2. The carrying into effect the legacies, and the last will of the testator, is wont to remain at the charge of the executors, (cabezaleros ó albaceas,) L. 1. tit. 10. P. 6., [L. 1. tit. 10. P. 6.,] who ought to conform to the rules touched upon, when there are necessary heirs; and if the property of the testator shall not be sufficient for the payment or fulfilment of the legacies, each of the legatees must suffer a deduction, pro rata, L. 4. tit. 5. lib. 3. Fuero Real.

§3. Those who cannot be executors, are, 1st, The friar, L. 7.25 tit. 5. lib. 3. Fuero Real, which differs from L. 2. tit. 10. P. 6. [L. 2. tit. 10. P. 6.] 2d, Nor the woman,26 the madman, the minor,27 the heretic, the dumb, the naturally deaf, the traitor, (traidor alevoso,) nor the person condemned to death,29 L. 8. tit. 5. lib. 3. Fuero Real. The executors ought to publish the testament within a month, under the penalty of losing their legacy; and, if there was none left them, of paying the tenth,30 (diezmo,) L. 13. tit. 5. lib. 3. Fuero Real; and, moreover, they are obliged to fulfil the will of the testator within a year, at farthest, countable from the death of the

24 Yet the citing the Roman Law is effected to be found fault with by the Spanish Law writers. See p. 3. in the preface to the text, and what is stated in p. 44. of the introduction to these Institutes, the translation of which, it is regretted, the want of time has prevented from being prefixed to the translation of the text. It is admitted that the Partidas, which are there said to be the most methodical, national, legal code known to the authors, are composed, in great part, of the Roman law. This admission was, however, quite superfluous, as the Partidas carry with them self-evident testimony of their debt to the great master code, from which they have so largely and generally borrowed. 25 The quotation is erroneous, read L. 8. ibid.

26 Although L. 8. tit. 5. lib. 3. Fuero Real, cited, excludes women, an addition to it says that, by custom, which is the best interpreter of laws, they may be executrixes; and this seems the generally received opinion. See Febrero to this effect.

Under twenty-five years of age; but again, by addition c to the law of the Fuero Real, cited, it is said that custom is, that those under twenty-five may be executors. 28 This may carry a very extensive religious exclusion.

29 Slaves, Moors, and Jews, complete the catalogue of those excluded from the office of executors by the same law.

30 The law, which is L. 14., and not L. 13. tit. 5. lib. 3., Fuero Real, intended to be cited, says, the tenth of the legacy; but it is difficult to discover how a man could be compelled to pay the tenth of nothing: the later enactment, however, L. 5. tit. 18. lib. 10. Nov. Rec., presents no such difficulty, and says that, the executor having no bequest by the will, shall pay the damage to the party injured by his omission or neglect, and two thousand maravedis to the crown (camara).

testator; the act of one, or more, in case the whole cannot be present, (personarlo,) being valid, L. 5.31 tit. 10. P. 6. [L. 5. tit. 10. P. 6.]

If it should happen that the executors are neglectful in complying with their duty or obligation, they shall be compelled to it by the bishop; and not obeying, he shall appoint other executors,32 L. 7. tit. 10 P. 6. [L. 7. tit. 10. P. 6.] In default of executors, the heir is charged with giving effect to the dispositions of the testator, L. 7. tit. 10. P. 6. Lastly, if through improper conduct or neglect, the will of the deceased be not executed, the executors shall lose what the testator may have left them, unless it be his son; for he ought not to be deprived of the lawful share (legitima) to which he is entitled by nature, L. 8. tit. 10. P. 6. [L. 8. tit. 10. P. 6.] See Carpio de Executoribus Voluntatem Ultimatum.33

31 Read L. 6.

32 Administrators would be more correct.

33 See also Febrero adicionado, tom. I. part. 1. cap. 1. § 18. p. 145; or Febrero Refor. mado, tom. I. part. 1. cap. 1. § 13. p. 160., 4th edit.

Executors are of three classes: Ist, Lawful, or those entitled by law to fulfil the will of the testator. 2d, Testamentary, or those appointed by the will of the testator. 38, Da. tivos, or those appointed by the judge or ordinary, in case of intestacy or absence of nomination by the testator, to discharge the duties of an executor, corresponding to the English administrator.

Testamentary executors are of two sorts: 1st, Universal or general, to execute entirely the testamentary dispositions, and to distribute the property of the deceased; and 2d, particular or special, appointed to carry into effect some special object or purpose of the will.

The office of executor is considered pious and private, and does not descend to the executor, or heir of a deceased executor, without express direction or leave of the ap pointing testator; and even then there are exceptions, especially when the executor has improperly executed his duty or trust. No person can be obliged to undertake the office of executor; but if one accepts or undertakes it expressly or tacitly, he may be compelled to discharge the duties.

According to Febrero Adic., 1st vol. p. 152. n. 257., an executor is not entitled to Salario or remuneration for discharging his office, as a guardian is, except by the direction or declared consent of the testator; but it seems that an allowance of this nature, having reference to the trouble or duty performed by the executor, may be granted by the judge. Vide Carpio de Exec., p. 81. n. 110. An executor cannot sell the real property of his testator, unless he be anthorised by the will, and then it appears the sale must be by public auction. Vide L. 62. tit. 18. P. 3. It would also seem, that a bequest or legacy to an exccutor, is supposed to be made comtemplatione officii, and that, therefore, if he renounce the burthen, he loses the legacy. If a legacy or bequest be left among executors, and one of them predecease the testator, or renounce the office, his share, jure ac crescendi, is divided among the surviving or acting executors. The rule of jus accrescendi may seem strictly to apply to legatees. See L 33. tit. 9. P. 6.: also Ripia de Testam. p. 37. n. 12. but see also Covarrubias, 1 vol. c. 18. § 1. p. 125. n. 4.

In the case of there being only one executor appointed, and of his predeceasing the testator, or renouncing the office, it is to be supposed that the bequest or legacy would lapse, and go to the heir, or residuary legatee or devisee.

TITLE VI.

OF SERVICES OR rights (serviDUMBRES).1

SERVICES (servidumbres) constitute the third right in the [138] thing. They are either real or personal; a real right or use is, the right and use which a person has in the buildings and lands of another, to make use of them for the benefit or advantage of his own, L. 1. tit. 31. P. 3. [L. 1. tit. 31. P. 3.] Personal service is, the right or use which a person gains in the things of another for the benefit or advantage of his person, and not especially of his lands or estate (heredad).

§ 1. Of real services, some are peculiar to cities (urbanas), and others to the country (rusticas). The first, or city services, are those which some houses have in, or with respect to others, L. 2. tit. 31. P. 3. [L. 2. tit. 31. P. 3.]; and the latter those which some estates have in, or with respect to other estates, L. 3. tit. 31. P. 3. [L. 3. tit. 31. P. 3.] Of the first kind are, 1st, The right of placing a load or burthen upon the house of one's neighbor by means of a pillar, column, beam, or other thing, which may support the building. 2d, The right of boring holes in one's neighbor's wall to place beams, or to open the windows to give light.2 3d, The right to let the water fall from one's roof, by means of gutters or spouts, upon the house of another. 4th, The right to prevent one's neighbor from building his house higher than it was at the time the right or use was created or imposed, in order that he may not obstruct one's light, view, &c. 5th, The right to have a passage through the house or yard of one's neighbors, to one's own house, and other similar rights, L. 2. tit. 31. P. 3. [L. 2 tit. 31. P. 3.] What relates to the height of buildings is governed by the municipal regulations (estatutos) of the towns.

Rural services are, 1st, The right of foot or horse path (senda), of way for narrow carts (guia),3 and of road (camino). The senda is made use of only to go on foot or on horseback, without driving carts (carros) nor beasts of burthen; the guia to go on alone or [139] accompanied with long narrow carts (carretas), &c.; and the camino,

1 Vide Halifax, Rom. Law, p. 25. cap. 3.; and Wood's Inst. Civ. Law, book 2. ch. 2. P. 145.

2 Palacios observes upon this, what is mentioned by Greg. Lop. Gl. 2. L. 2. tit. 31. P. 3., that there is a difference between these two sorts of services; that in the first (oneris ferendi), the person benefiting by the use of his neighbor's wall, to support the burthen, is obliged to repair the wall; whereas, in the second (tigni inimitendis), he is not under Buch obligation.

3 Palacios (note 1.) says, there is no such service as that of guia; but that the rural services intended to be here treated of, are "Lasenda ó derecho de senda, la carrera," which is called in the text guia, and “La via ó camino," which corresponds with the three rights of way of the Romans: iter, actus, via.

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or road to carry these and any other things on. The breadth of the road (camino) ought to be regulated by the agreement, and not having been so regulated, ought to be only eight feet wide, and sixteen, if there be a turning, L. 3. tit. 31. P. 3. 2d, The right of conducting water through another's land for the purpose of irrigation, as for mills, &c.; in which case, the person who has this right, ought to keep up, at his cost, the aqueduct, drain, pipes, or spouts, and to avoid all injury to the land through which they shall pass, L. 4. tit. 31. P. 3. [L. 4. tit. 31. P. 3.]; and the owner of the land from which the water shall be taken, cannot grant it to another, to the prejudice of him who has the right, L. 5. tit. 31. P. 3. [L. 5. tit. 31. P. 3.] 3d, The right to drink out of the spring or well of another for one's self, laborers, and beasts of labor, or cattle, by which is also understood to be granted the right of ingress and egress to and from the land, L. 6. tit. 31. P. 3. [L. 6. tit. 31. P. 3.] 4th, The right of feeding one's beasts of labor on the meadow or pasture of another L. 6. tit. 31. P. 6. 5th, The right of taking limestone, sand, stones, or other material, which may be found on the land of another, for the purpose of building on one's own, L. 7. tit. 31. P. 3. [L. 7. tit. 31. P. 3.], and many others of this

tenor.

§ 2. Every service ought to be charged or imposed upon or with respect to things which are ours, or which we possess as ours, in order that they may be of use or benefit to the posterity of another, L 13. tit. 31. P. 3. [L. 13. tit. 31. P. 3.] 2d, They ought to be established by testament, by contract, or be acquired by prescription, L. 14. tit. 31. P. 3. 3d, The service is always united or annexed to the inheritance or building upon which it was laid, and the right of using it is accessory to the thing for the benefit of which it was established, Ll. 8. and 12. tit. 31. P. 3. [Ll. 18. and 12. tit. 31. P. 3.] 4th, They are indivisible,10 L. 9. tit. 31. P. 3. [L. 9. tit. 31. P. 3.]

From the first principle it follows, 1st, That every proprietor of a thing may establish a right on or with respect to it; and if there be many owners, all ought to agree either at the time of its establishment, or by subsequent approbation, L. 10. tit. 31. P. 3. [L. 10. tit. 31. P. 3.] 2d, That the tenant in fee (feudatorio) or for life (poseedor a vida) may impose a service, L. 11. tit. 31. P. 3. [L. 11. tit. 31. P. 3.] 3d, The purchaser may impose it upon the thing which he purchases, although it may not have passed into his possession with the consent of the seller, L. 11. tit. 31 P. 3. 4th, That things are not capable of services which are incapable of dominion, as sacred things, &c., L. 13. tit. 31. P. 3. 5th, That these services benefit the

4 Made at the time the right was granted.

5 Straightways. Sce L. 3. tit. 31. Part. 3., cited.

6 He may grant to another the like right if there be sufficient water for both. See the exception at the end of the law cited in the text.

7 Right of common or pasture.

8 Or person, in the case of personal services.

9 i. e. Inseparable from, except by the consent or agreement of the party entitled. 10 See L. 9. tit. 31. P. 3., cited.

property of others, and not that of the person on which they [140] are established, L. 13. tit. 31. P. 3. [L. 13. tit. 3. P. 3.]

From the second principle it follows, 1st, That every continued or uninterrupted service, that is, which is continually made use of, as is running water, &c., is acquired by ten years' use of enjoyment" among persons present, and twenty among those absent; and discontinued rights which are only made use of now and then, as right of way, of road, water which comes or flows once a week, &c., cannot be acquired but by use of time immemorial, L. 25.12 tit. 31. P. 3. [L. 25. tit. 31. P. 3.]

From the third principle it follows, 1st, That the service or right does not cease because the thing may change its owner and pass to another, L. S. tit. 31. P. 3. [L. 8. tit. 31. P. 3.] 2d, That the owner of the service cannot sell nor aliene it without the thing or property to which it belongs or is attached, unless the owner of the thing which furnishes the service, or with respect to which it is exercised, should consent, L. 12. tit. 31. P. 3. [L. 12. tit. 31. P. 3.]

From the fourth principle it follows, 1st, That if each of the heirs of the property which has the service in its favor, should wish to make use of it entirely, he can do it. 2d, That each of the heirs of the property from which the service is due, is obliged severally to render or allow it, L. 9. tit. 31. P. 3. [L. 9. tit. 31. P. 3.]

§ 2. The modes by which services are acquired being almost the same as those by which they may be lost, it follows, 1st, That the service is extinguished, by the owner of the thing to which it was granted, surrendering it to the estate or thing from which it was due, L. 17. tit. 31. P. 3. [L. 17. tit. 31. P. 3.] 2d, By the owner of the thing which is entitled to the service or right becoming owner of the thing which owes it; and if they are again separated, the service is not renewed by this event alone, L. 17. tit. 31. P. 3. 3d, By the owner of the service authorising the owner of the thing which renders it to do something which may impede the right, L. 9.14 tit. 31. P. 3. 4th, By the use of the city service being impeded for ten years in the view or presence of him who possesses it, and for twenty years if he be absent,15 L. 16. tit. 31. P. 3. But if the service is rural, and a continued one, it will be lost by non-use for time immemorial; and if it be a discontinued one, its non-use for the space of twenty years will be sufficient to work a forfeiture of it, L. 16. tit. 31. P. 3.

11 With buena fe, without force, &c., on the part of him claiming, with knowledge, and without contradiction, &c., on the part of the proprietor against whom the prescrip tion is set up. See L. 15. tit. 31. P. 3., intended to be referred to by the text, instead of L. 25, erroneously printed.

12 Read L. 15.; and see L. 1. tit. 17. lib. 10. Nov. Rec., as to proof, &c. of time imme. morial.

13 L. 12. tit. 31. P. 3., cited, mentions another exception with regard to water for irri. gation; which, after brought from another's land to that of the owner of the service, may be, by the latter, granted to a third person.

14 Read L. 19.

15 This obstruction must be done with buena fe.