by the diocesan for the redemption of captives. 10th, Finally ", the person who abandons the catholic religion 2 may be disinherited, L. 7. tit. 7. P. 6. [L. 7. tit. 7. P. 6].

42

§ 3. For the same causes, and under the same disposition of law, with the exception of the 2d, 4th, 6th, and 7th, may children disinherit their parents and other ascendants as expressed by L. 11. tit. 7. P. 6. [L. 11. tit. 7. P. 6.]

43

§ 4. Brothers may disinherit expressly or tacitly; that is, naming their brothers and other relations of the collateral line with cause or without it; but there is this difference, that in disinheriting them without cause, if the testator appoint as heir a man of infamous or bad character, this appointment will not be valid, and the brother or relation shall inherit; but if there be a just cause expressed, the will cannot be set aside. These just causes are reduced to the attempting or the committing something against the life of the testator, or in deterioration of his property,44 L. 12. tit. 7. P. 6. [L. 12. tit. 7. P. 6.]

§ 5. Besides what has been mentioned, there are other causes for which generally an heir ought to lose the inheritance of the deceased, which are, 1st, If the heir should enter on the inheritance before pre[113] ferring a charge or accusation (querella) to the judge of the death of the deceased testator, caused by those of his family; or if it were committed by a stranger, and he should not prefer the charge within five years, L. 13. tit. 7. P. 6. [L. 13. tit. 7. P. 6.], and L. 11. tit. S. lib. 5. Rec.45 [L. 11. tit. 20. lib. 10. Nov. Rec.], which is not understood with regard to minors, L. 11. tit. 8. lib. 5. Rec. [L. 11. tit. 20. lib. 10. Nov. Rec.], nor as to the heir who, after having made the complaint or accusation, should desist from it, L. 15. tit. 7. P. 6. [L. 15. tit. 7. P. 6.] 2d, If it be evident who killed the testator, and the heir should open the will without accusing them, L. 13. tit. 7. P. 6. [L. 13. tit. 7. P. 6.] 3d, The alleging the will in which he was established heir to be a false instrument, whether he do it as party or advocate, unless it be in his quality of fiscal, or as the guardian of any minor, L. 13. tit. 7. P. 6. 4th, The delivering the inheritance to one prohibited by law to receive it, although it be at the request of

41 L. 5. tit. 7. P. 6. mentions, as causes of disinherison by father, his son's fighting with another man, or with beasts, for money.

42 Or becomes heretic. It is to be hoped that the severity of this law is not enforced, but that it is obsolete in practice, and will not in the present state of liberal feeling in Spain be long allowed to remain on the statute book: the last part of the law gives the property of a lay person who is, and whose relations to the tenth degree are heretics, to the crown; and if such person be a clerigo to the church, if it should claim within a year after the person is declared a heretic, and on default of such claim by the church, the property goes to the crown. See L. 7. tit. 7. P. 6. N. B. This note was written during the existence of the Cortes in Spain.

43 Or had been a slave of the testator, or one that he had emancipated; and it seems the difference mentioned, only takes place with respect to brothers of the testator, and not other collateral relations; for the latter cannot, in any case, prefer a complaint against the will. See L. 12, tit. 7. P. 6., cited, and L. 2. tit. 8. P. 6.

44 That is to say, the greater part of it. See L. 12. tit. 7. P. 6., cited.

45 Which last cited law requires, in order to produce such effect, the murderer to be known to the heir, and that he be in the country; and the heir to be able or wealthy enough (poderoso) to prosecute for the murder. See L. 11. tit. 20. lib. 10. Nov. Rec.

the testator, because he then loses the right which he may have, L. 13. tit. 7. P. 6. [L. 13. tit. 7. P. 6.]

When for any of these causes the heir loses or forfeits the inheritance, it devolves to the exchequer (camara), L. 13. tit. 7. P. 6., and L. 11. tit. 8. lib. 5. Rec. [L. 13. tit. 7. P. 6., and L. 11. tit. 20. lib. 10. Nov. Rec.], the collector (recaudador) of which shall be obliged to fulfil the will of the testator in regard of the other part of the will, reserving the fourth for the king, which must be paid out of the legacies (mandas) when the rest of the property shall not be sufficient, L. 16. tit. 7. P. 6. [L. 16. tit. 7. P. 6.]; see L. 17. tit. 7. P. 6. [L. 17. tit. 7. P. 6.] We are not aware that this is practised in the present day.

Cap. 4. As the persons who are established heirs are bound to prove the cause which intervened or existed to justify the disinherison, it follows; 1st, That the necessary (forzosos) heirs have a right to allege before the judge their complaint inofficiosi testamenti; which is nothing more than a complaint, preferred against the testament made contrary to the duties of piety and affection, L. 1. tit. 8. P. 6. [L. 1. tit. 8. P. 6.] 2d, That parents may be wanting in their duty either by improperly disinheriting their necessary heirs or by omitting them in their will, L. 1. tit. S. P. 6. [L. 1. tit. S. P. 6.] 3d, That in either case all those we have mentioned may complain, L. 1. tit. 8. P. 6. 4th, That brothers can only do it when the person appointed heir is of bad character; although it will be sufficient to leave a legacy to collateral relations to prevent their being able to complain against such an appointment," L. 2. tit. 8. P. 6. [L. 2. tit. 8. P. 6.]

This complaint cannot be preferred, 1st, after the expiration [114] of five years from the period the heir entered on the inheritance, unless the complainant be under twenty-five years of age, when he is allowed four years after his coming of age to prefer it, L. 4. tit. 8. P. 6. [L. 4. tit. S. P. 6.] 2d, In the case where the necessary heir approves the testament by which he was disinherited, L. 6. tit. 8. P. 6. [L. 6. tit. S. P. 6.]

The effect of this suit is to deprive the person established heir of the inheritance, and to give to him who hath preferred a just com

46 It may be well here to notice the difference between express and tacit disinherison or omission, which last is termed præterition, as clearly pointed out in L. 1. tit. 8. P. 6. here cited. It would appear by this law, and also by L. 10. tit. 7. P. 6., that it is not necessary for the heir forzoso, actually passed by, præteritus, to prefer the complaint inofficiosi testamenti; but that on account of such preterition, the will is, ipso jure, null and void in respect of the legitima of such necessary heir, although the bequests, &c. in the will would hold good, in so far as they did not trench on the legitima of the necessary heir, the institution of this complaint being only requisite on the part of the heir forzoso, who is expressly disinherited with or without cause. See Gr. Lop. Gl. 9. and 10. L. 1. tit. 8. P. 6.; and also Gom. var. res. Cap. 11. de suc. cont. Test. numb. 1. 35. 36. &c. L. 1. tit. 18. lib. 10. Nov. Rec. Azevedo on L. 1. tit. 4. lib. 5. Rec. numb. 94. to 97. and numb. 106. L. 7. tit. 8. P. 6. and Gl. 7. Greg. Lop. on said last law.

47 This is not required by the law cited in the text, nor by any other that has come within my research; nor yet does it in any way affect the right of brothers to the advantage given them in the law cited, and in the case mentioned in the text.

plaint; unless the former be brother of or related in the same degree to the latter, who in such case must have his proportion, but in other respects the will remains valid, L. 7. tit. 8. P. 6. [L. 7. tit. 8. P. 6.] The reason of this last is, that the institution or appointment of an heir is not an indispensable circumstance to the validity of a will or testament, L. 1. tit. 4. lib. 5. Rec. [L. 1. tit. 18. lib. 10. Nov. Rec.] whence it arises that if the testator hath omitted any child or necessary heir, the testament is invalid or set aside in that part which may relate to such heir and subsists in regard to the other parts, L. 1. tit. 4. lib. 5. Rec. [L. 1. tit. 18. lib. 10. Nov. Rec.]

TITLE IV.

OF THE DELIVERY AND DIVISION OF THE INHERITANCE, AND OF SUCCESSION AB INTESTATO.

In order to know to whom delivery of the inheritance is to [116] be given, publication of the will is made, for which purpose those interested appear before the judge presenting a petition, praying, that the witnesses may be ordered to acknowledge their signatures: immediately the will is opened' by the escribano, and those who are found to be interested accept plainly with benefit of inventory, or reject the inheritance. The testament or will must be presented before the judge within a month after the death of the testator, L. 14. tit. 4. lib. 5. Rec.3 [L. 5. tit. 18. lib. 10. Nov. Rec.]; but if it was not executed before an escribano, and only before seven witnesses, as prescribed by Ll. 1. and 2. tit. 4. lib. 5. Rec. [Ll. 1. and 2. tit. 18. lib. 10. Nov. Rec.], the will or writing is presented to the judge; and the witnesses being examined it is ordered to be protocoled.

Cap. 1. Delivery is the corporal seisin or possession which the heir receives of the property that belongs to him, L. 1. tit. 14. P. 6. [L. 1. tit. 14. P. 6.] The delivery of property or dominion (propiedad) is distinct from that of possession; and this last is never denied or refused, when it is demanded in virtue of the hereditary appointment, although there may be another who opposes it, unless the possessor shall desire to allege his reasons; or provided the other produces an equal hereditary appointment; in which case they ought to be heard, and the possession adjudged to him who has best right, Ll. 2. and 3. tit. 14. P. 6. [Ll. 2. and 3. tit. 14. P. 6.] The delivery of property or dominion comprehends not only the property which the testator possessed when he died, but also the existing fruits or produce (frutos), which ought to be ordered to be restored to the heir, Ll. 4, 5, 6, and 7. tit. 14. P. 6.4 [Ll. 4, 5, 6, and 7. tit. 14. P. 6.]

1 By the Judge, before the witnesses and the escribano, and read and published by the latter, according to Palacios. In regard to Trinidad, vide additional rules, Court of First Instance of Civil Jurisdiction on Testamentary proceedings, March 22d, 1823; and as to testification of wills, vide Order in Council, 8th June, 1816, Append. N. and M.

2 Or may demand time to consider and advise whether they will accept or reject it. See Pre. tit. 6. P. 6. and Ll. 1. and 2. ibid. which last points out the time allowed for such deliberation.

3 And for this law, the executor who omits to do so, loses any bequest or legacy that may be bequeathed to him by the will. And in case of there not being any, he is liable in damages to the party injured by his neglect, and to the payment of 2,000 maravedis for the use of the crown (camara), L. 5. tit. 18. lib. 10. Nov. Rec.

The first three of these laws apply and point out the different consequences as to such restitution with regard to the person who possessed bona fide, and him who possessed mala fide; the last cited law relates to prescription as against the heir entitled.

§ 2. The things belonging to the inheritance are verified by the inventory, which is an account in writing taken of the property of the deceased, L. 5. tit. 6. P. 6.; [L. 5. tit. 6. P. 6.;] all those must make it who are obliged to give an account of the inheritance before an escribano and witnesses within thirty days after notice hath been had of the inheritance, and must be finished within three months at [117] most, if the property be in the same place; but if it should be at a distance, the term may be prorogued to a year or more according to the circumstances, L. 5. tit. 6. P. 6., and L. 100. tit. 18. P. 3. [L. 5. tit. 6. P. 6., L. 100. tit. 18. P. 3.]

This instrument, or account in writing, may be well termed a benefit, because many are the benefits which the heir derives from it; the most remarkable among them are, 1st, That the heir cannot be sued for more than the amount or value of the property which he inherits, Ll. 5, 7, and 10. tit. 6. P. 6. [Ll. 5, 7, and 10. tit. 6. P. 6.] 2d, That no suit can be instituted during the time it is forming, L. 7. tit. 6. P. 6. [L. 7. tit. 6. P. 6.]

If the renunciation be made, the inheritance cannot be demanded; but if the heir were a minor, he has a term of three years to retract, Ll. 18. and 20. tit. 6. P. 6.8 [Ll. 18. and 20. tit. 6. P. 6.]

Cap. 2. As there are oftentimes two or more persons appointed heirs by a testament, between whom a division of the inheritance must be made, it is necessary to know that partition is a division which men make among them of the things which they have in common by inheritance, or by any other cause, L. 1. tit. 15. P. 6. [L. 1. tit. 15. P. 6.]

This partition, 1st, Ought to be made between the heirs named in the will. 2d, Of the things which were the property of the testator. 3d, Before a competent judge.

From the first it is deduced, 1st, That either of the heirs may require partition of the property, L. 2. tit. 15. P. 6. [L. 2. tit. 15. P. 6.] 2d, That all the property, except the fifth and the third, if there should be any, is divided between them in equal parts. This appears from the whole of Tit. 6. lib. 5. Rec." [Tit. 6. and 20. lib. 10. Nov. Rec.] 3d, That the papers or deeds be in the possession of the principal heir, or of whomsoever the testator shall name, Ll. 7. and 8. tit. 15. P. 6. [Ll. 7. and 8. tit. 15. P. 6.]

To the second principle belongs the collation or manifestation (colacion) of property; which the Partidas call amojonamiento,10

5 That is, it must be begun within that time.

6 Beyond or exclusive of the three months first allowed; and the inventory must be signed by the heir. L. 100 tit. 18. P. 3., cited, gives the form of such inventory, &c. 7 It would seem secus for funeral expenses, &c. See Greg. Lop. Gl. 7., or L. 7. tit. 6. P. 6.

8 Quære, If he be a minor, if he have not four years after he come of age. L. 20. tit. 6. P. 6., says, that he has three years allowed him to retract, if the renunciation be made after he is twenty-five, provided the property be not in the meantime alienated.

9 See Ll. tit. 21. lib. 10. Nov. Rec.

10 Palacios on this, (nota,) says, that no where does he find that amojonamiento signifies