« PreviousContinue »
Marriage being so advantageous to the welfare of the state, our laws favor it in various ways, and thus 1st, The L. 5. tit. 1. lib. 3. Rec. (L. 26. tit. 2. lib. 5. Nov. Rec.] annuls entirely L. 13. tit. 1. lib. 3. del fuero real, and L. 3. tit. 12. P. 4., (L. 3. tit. 12. P. 4.,] which prohibited widows from marrying within a year after the death of their husbands, and the civil penalties which they incurred thereby; and L. 4. tit. 1. lib. 5. Rec., [L. 7. tit. 4. lib. 10. Nov. Rec.,] reserves to the children of the first marriage the dominion of the property which the wife shall have belonging to the first husband, which reservation is also understood to apply to the husband. 2d, All married persons are exempted from corporation or city burthens and offices (cargas concegiles) the first four years of their marriage; and, the first two, from royal31 taxes (pechos reales) and tributemoney," (moneda forera,) which exemption they will enjoy for life if they come to have six sons, L. 14. tit. 1. lib. 3. Rec. (L. 7. tit. 2. lib. 10. Nov. Rec.] 3d, If they marry before eighteen they may administer their own property when they arrive at that age, L. 14. tit. 1. lib. 3. Rec. [L. 7. tit. 2. lib. 10. Nov. Rec.] 4th, Sons married or betrothed (velados) have the usufruct of adventitious34 property, (adventicios, Ll. 8. and 9. tit. 1. lib. 5. Rec. [L. 3. tit. 5. lib. 10. Nov. Rec
LARVA Polish reference, it is greumed, should Be L. 3. tit. 1. lib. 5. Rec.; or L. 4. tit. 2. lib. 10. Nov. Rec., 30 See
Law 7. tit. 2. Tib. 31 Also porpprate or city imposts, game Law.
* A tripte 84B dia in Spain to the king every seven years, in token or acknowledg. ment of sovereignty or vassdlage. Vide Cornejo Diccionario Real de España, tom. 1. pal. moneda forere.
33 * And,” according to the law cited (L. 9. tit. 1. lib. 5. Rec.; L. 3. tit. 5. lib. 10. Nov. Rec.) Palacios (2).
34 Property acquired by industry or right of inheritance, independent of paternal for. tune. By marriage, a son is emancipated from paternal power. Vide L. 3. tit. 5. lib. 10. Nov. Rec., referred to in the text.
OF MARRIAGE PORTIONS (DOTES) JOINTURES (ARRAS), GIFTS OF AUS
BANDS (DONADIOS DE ESPosos), AND GAINS DURING MARRIAGE, (GANANCIAS ENTRE MARIDO Y MUGER.)
CAP. 1. As we have explained in the preceding chapter what mutual promise of marriage is, as being necessary to the understanding what marriage is, in the same way it is necessary here to explain what is marriage portion (dole), jointure (arras), what donation of husband (donadio de esposo), and finally, what are gains (ganancias) between man and wife, because they are things which have their proper place, where they serve to complete the due understanding of matrimony.
Doles and arras are given before and after the celebration of matrimony, their ends or objects being, that those who marry may [ 48 ] have wherewithal to live and to support matrimony properly and faithfully, Princip. tit. 11. P. 4.
§ 1. Dote is the property which the wife gives to the husband on account of marriage, L. 1. tit. 11. P. 4. (L. 1. tit. 11. P. 4.] It is divided first into profecticia and adventicia. The latter (adventicia) is that which the wife herself gives, of what belongs to her, to her husband, or that which her mother gives for her, or any other of her relations, provided they be not those of the right descending or ascending line, but others, as uncle, cousin, or other relation, or a stranger. Profecticia is the dote which the father or grandfather, or other of the ascendants in the direct line give of their own property to the husband, L. 2. tit. 11. P. 4. [L. 2. tit. 11. P. 4.]
Hence it is in the first place, that if the father owes any thing to his daughter, and gives it as dote to the husband, although he pay it from his own property, it will be “ dote adventicia,” because he does not give it as a father, but as a stranger would, L. 2. tit. 11. P. 4. [L. 2. tit. 11. P. 4.] In the second place, for the same reason, that will be dote adventicia which is assigned by a stranger and given to the father, in order that he may deliver it to the daughter, L. 2. tit. 11. P.4. [L. 2. tit. 11. P. 4.)
§ 2. Dote is divided in the second place into necessary and voluntary. The first is that which the father is obliged to give to his daughter who is under his power. Voluntary is that which the wife
1 But vide order in council, 16th September 1822, on this subject, Appendix K.
4 That is, I apprehend, if she hath no property of her own for the purpose, and he hath the means of giving her a portion. See L. 8. tit. 11. P. 4. referred to in the text.
gives of her own accord, or any other person in her name, L. 8. tit. 11. P. 4. [L. 8. tit. 11. P. 4.] $ 3. Dole may be established in many ways.
1st, By solemn promise, which is called in Latin Stipulatio; as, for instance, if a man should say to a woman with whom he would marry,“ Do you promise to give me in dote such a vineyard belonging to you, or such an estate, or so many maravedis which such a man has to give you?” and she should answer “ I promise.” 2d, By mere or simple promise, or pollicitatio. 3d, By promising to give it to the husband, or to any other in his name, for in this case it is the same as if the husband were to receive it, and he is bound to make it good if he accepted and approved the promise, Ll. 10. and 13. tit. 11. P. 4. [LI. 10. and 13. tit. 11. P. 4.] 4th, Dole may be constituted purely, or absolutely and conditionally; and it is to be observed, that the condition," if the murriage be fulfilled," although it may not be expressed, must be always understood. 5th, Dole may be given immediately, after being promised, or at a stipulated time [ 49 ] (u plazo). The former is called giving dote in hand or down (dar la dote a mano), and of this species is that which at the time or act of promising is delivered to the husband, or to some other in his name appointed or approved by him. Of this description also is the dote which the husband gives to the wife of a debt she owed him, saying to her, “ Do you acknowledge or agree that you give me in dole so many maravedis, or such a thing that I was to have paid to you?” and she answers, “ I acknowledge or agree and consider it as firm, and that I am paid as though I had received the money.” The same holds if the husband were a debtor to another, and his creditor should assign as dote to the wife the debts due to him by the husband, L. 13. tit. 11. P. 4. [L. 13. tit. 11. P. 4.) To give dote at a stipulated or future time á plazo) is to assign a day and time certain by which it is to be given. A day certain is, when the dote is promised on a day appointed; and time certain is, when it is promised to be given, for instance, within the year; and when promised in a time certain, as within the year, this must begin to run, or be counted from the day of the wedding, L. 12. tit
. 11. P. 4. (L. 12. tit. 11. P. 4.] § 4. The things which are assigned or given in dote are real? or personal (raices ó muebles), L. 14. tit. 11. P. 4. (L. 14. tit. 11. P. 4.] Dole may also consist of a debt in favor of the wife, and in order that this species of dote may be valid, it is necessary that the debtor acknowledge the debt, and promise to pay it to the husband, L. 15. tit. 11. P. 4. [L. 15. tit. 11. P. 4.] These things are either valued, or are not valued. Dole will be valued, when he who gives it says, “I give you sucli a thing in dote, and I value it at so many maravedis." It will be not valued when he only says, “I give you such an estate or property in dote." Dote that is valued possesses this privilege, that restitution or relief against injury suffered by error in its valuation may be obtained at all times, as well by him who gives, as by him who receives it, L. 16. tit. 11. P. 4. [L. 16. tit. 11. P. 4.]
5 A gratuitous promisc, or nudum pactum, and here means a promise, accompanied with delivery of the dole, or gist. See L. 10. tit. 11. P. 4. referred to in the text.
6 And not from the period of the promise. Vide law referred to in the text.
? It may be here added, that in the case of a female minor, she is not allowed to assign or deliver to husband, dote, in regard of real property, without judicial knowledge and consent, in addition to the authority or consent of her guardian; but she is permitted to do so, in respect of personal property, having only the consent of her guardian.
§ 5. From all that has been said, the following axioms may be deduced, 1st, The father and grandfather are bound to portion (dotar) their daughter and grand-daughter according to their means. 211, Dote is assigned in order the more casily to support the charge or burthen of matrimony. 3d, The husband is owner of the dote during marriage, L. 7. tit. 11. P. 4. [L. 7. tit. 11. P. 4.] 4th, On the dissoTation of marriage it ought to return to the wife, or to whomsoever it may belong, L. 7. tit. 11. P. 4. [L. 7. tit. 11. P. 4.]
( 50 ) From the first axiom it results, 1st, That the father, when he marries his daughter, must portion her whether she have property of her own or not, L. 8. tit. 11. P. 4. [L. 8. tit. 11. P. 4.] 2d, That if the father do not, he may be compelled thereto by the judge of the place in which he may be, L. 9. tit. 11. P. 4. [L. 9. tit. 11. P. 4.) 3d, That the grandfather is not obliged to portion his grand-daughter, who is under his power or protection (en su poder), if she have property of her own for the purpose, L. S. tit. 11. P. 4. [L. 8. tit. 11. P. 4.] 4th, That, under the like circumstances, the great-grandfather ought to portion his great grand-daughter under his power or care,' L 8. tit. 11. P. 4. [L. 8. tit. 11. P. 4.] 5th, That the mother cannot be compelled to portion her daughter when the father has wherewith 10 do it,10 but she is not deprived of the power of doing so voluntarily, L 9. tit. 11. P. 4. (1. 9. tit. 11. P. 4] 6th, If the mother is a heretic, Jewess, or Moor, she shall be compelled to portion her Christian daughter, L. 9. tit. 11. P. 4. [L. 9. tit. 11. P. 4.] 7th, The same obligation is imposed on the guardian, or person who may have under his power (en su poder) ary woman; and he shall be compelled to portion her in proportion to her means, and the condition or rank of the person with whom she marries; in which case, if the guardian should give a greater portion of what the woman possesses, the excess will not be valid, L. 9. tit. 11. P. 4. (L. 9. tit. 11. P. 4.]
8 This applics equally to arras or jointure, or donatio propter nuptias, which will go to the husband, or his heirs, on the dissolution of the marriage.
9 Palacios here observes, that the father and grandfather are bound to portion their grand, or great granddaughter, whom they shall have under their power, is she be poor, according to L 8. tit. 11. p. 4. cited in the text; but that as, at present, the patria potestad, in respect to the grand and great-grand children, no longer exists in the grand and great. grandiather, by reason of their sons having withdrawn from the paternal power, in con. sequence of having married (L. 8. tit. 1. lib. 5. Rec. L. 3. tit. 5. lib. 10. Nov. Rec.), the obligation to portion them no longer exists; unless we adopt the opinion of tho-e who hold that the fathers, and in default of them, the paternal grandfathers, are bound to portion their daughters or grand-danghters, although they may not be under their power, on the ground that this is more a natural than a civil obligation. The learned professor refers 1o Covarrub. P. 2. de matrim. cap. 8. $ 6. n. 15.
10. The law (9. tit. 11. P. 4.) referred to in the text, makes no such distinction; but states generally, that the mother cannot be compelled to portion her daughter. L. 4. tit. 3. lib. 10. Nov. Rec. which is L. 8. tit. 9. lib. 5. Rcc does say, that if ihe father alone shall, during marriage, give a portion, or inake a donation, propter nuptias, to a common child of such marriage, such porsion or donation shall be paid out of that particular species of property called gananciules, which will be explained hereafter, provided there shall exist such' gains; but that if there be no such description of property of the marriage, then such portion or donation shall be paid out of the particular or exclusive property of the husband, and not of the wife. See the law here referred to.
The excess (of dote, &c.) which was observed to be given on the marriage of daughters, rendered it necessary to establish, ist, That he who may have from two hundred to five hundred thousand maravedis of rent or income, can only assign to each of his daughters a portion of a million of maravedis: he who may have less, only six hundred thousand: he whose income should exceed five hundred thousand up to one million and four hundred thousand maravedis, may only give a million and a half, and he who may have a rent or income of a million and a half maravedis or more may assign as a portion to each of his daughters one year's rent or income and not more; so that it cannot exceed two millions maravedis, L. 1. tit. 2. lib. 5. Rec. [L. 6. tit. 3. lib. 10. Nov. Rec.] 2d, This is so firmly established that Philip the 4th declared null the dispensations which the council might make or grant contrary to the tenor of this law, L. 5. tit. 2. lib. 5. Rec. (L. 7. tit. 3. lib. 10. Nov. Rec.] and its observance hath been repeated in the ordinance respecting the dresses of women, de trages de 1723, al cap. 24. and 25. 3d, That the ladies of honor cannot have more than a million of maravedisil en dote, L. 5. tit. 2. lib. 5. Rec. [L. 7. tit. 3. lib. 10. Nov. Rec.] 4th, That a third or fisth of one's property cannot be promised in dote, L. 1. tit. 2. lib. 5. Rec. [L. 6. tit. 3. lib. 10. Nov. Rec.]
From the second axiom it follows, Ist, That every thing may be given in dole which can be useful to the husband, LI, 14. 15. 21. and 22. tit. 11. P. 4. [Ll. 14. 15. 21. and 22. tit. 11. P.4.] 2d, and therefore the promise of dote to be given at the death of the husband will not be valid, L. 12. tit. 11. P. 4. [L. 12. tit. 11. P. 4.) 3d, But if any other except the wife promise the dote at a time uncertain, it will be valid, as the person promising it may happen to die during the [ 51 ] marriage, and the dote may be useful,12 L. 12. tit. 11. P. 4. (L. 12. tit. 11. P. 4.] 4th, That dote must be proportioned to the riches of the wife, and the condition or rank of the husband, L. 9. tit. 1l. P. 4. [L. 9. tit. 11. P. 4.]
From the third axiom it arises, Ist, That the husband acquires and gains the fruits or produce of dote, when once the marriage has taken place, 13 Ll. 18. and 25. tit. 11. P. 4. [Ll. 18. and 25. tit. 11. P. 4.]
11 And a certain sum of moncy which the queen of Spain gives her maids when they marry (y la saya). Vide L. 7. tit. 3. lib. 10. Nov. Rec.
e to the husband. The example put in the law referred to in the text, is of a per. son promising dote to be paid at the time of the promisor's death; for his death may take place before that of the husband. This possibility makes the promised portion, or dote,
12 i. e.
13 And possession of the dote hath been delivered to him. See L. 25. tit. 11. p. 4.