are not valued. Dote will be valued, when he who gives it says, "I give you such 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. 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. 2, Dote is assigned in order the more easily 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 dissolution 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. S. 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,9 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 to do it, but she is not deprived of the power of doing so voluntarily, L. 9. tit. 11. P. 4. [L. 9. tit. 11. P. 4.] 6th, If the mother is a heretic, Jewess, or Moor, she shall be compelled to portion her Christian

10

8 This applies 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 grand-daughter, whom they shall have under their power, if 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. grandfather, by reason of their sons having withdrawn from the paternal power, in consequence 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 those who hold that the fathers, and in default of them, the paternal grandfathers, are bound to portion their daughters or grand-daughters, 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 to 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. Rec. does say, that if the father alone shall, during marriage, give a portion, or make a donation, propter nuptias, to a common child of such marriage, such portion or donation shall be paid out of that particular species of property called gananciales, 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.

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) any 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.]

The excess (of dote, &c.) which was observed to be given on the marriage of daughters, rendered it necessary to establish, 1st, 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 maravedis11 en dote, L. 5. tit. 2. lib. 5. Rec. [L. 7. tit. 3. lib. 10. Nov. Rec.] 4th, That a third or fifth 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, 1st, That every thing may be given in dote which can be useful to the husband, Ll. 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. 11. P. 4. [L. 9. tit. 11. P. 4.]

From the third axiom it arises, 1st, 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 money which the queen of Spain gives her maids when they marry (y la saya). Vide L. 7. tit. 3. lib. 10. Nov. Rec.

12 i. e. to the husband. The example put in the law referred to in the text, is of a person promising dote to be paid at the time of the promiser's death; for his death may take place before that of the husband. This possibility makes the promised portion, or dote, valid.

13 And possession of the dote hath been delivered to him. Sce L. 25. tit. 11. P. 4.

2d, That the decrease or increase of dote valued, caused after and not before the wedding, appertains to the husband, L. 18. tit. 11. P. 4. [L. 18. tit. 11. P. 4.] 3d, That the fruits or produce enjoyed before the wedding are considered an increase of dote, although equity directs that the husband who maintains and watches over the wife during the time that he is waiting, by reason of her imperfect age, to marry her, is not bound to consider or reckon as an increase of dote the fruits which he may have received before marriage, L. 28. tit. 11. P. 4. [L. 28. tit. 11. P. 4.] 4th, That the increase or decrease also of all the dotal property which has been counted, weighed, and measured, appertains to the husband, L. 21. tit. 11. P. 4. [L. 21. tit. 11. P. 4. 5th, But of that not valued, which is received as equivalent in kind, as cattle, &c., the loss or the increase appertains to the wife; although the husband is obliged to supply the number of those that may die from those that shall be born, Ll. 18. and 21. tit. 11. P. 4. [Ll. 18. and 21. tit. 11. P. 4.] 6th, That if the election be given to the husband of returning the dote, or its value, the injury or improvement shall be the wife's, if the husband shall elect to return the thing; and the same if the election be left to the wife, L. 18. tit. 11. P. 4. [L. 18. tit. 11. P. 4.] 7th, That the increase of a quarry, not valued, is excepted, which appertains to the husband, L. 27. tit. 11. P. 4. [L. 27. tit. 11. P. 4.] 8th, That if dotal property, not valued, were lost by judgment at law, and the wife hath bound herself to warranty (salio á eviccion), she ought to be responsible for the loss; but if she gave it in good faith, without making herself responsible for it, the loss or injury will appertain to the husband:16 and in regard to dote that is valued, the wife must give him another thing equal in value, L. 22. tit. 11. P. 4. [L. 22. tit. 11. P. 4.] 9th, That it is the

referred to in the text, which law qualifies, in regard to the produce or increase of slaves, the position laid down in the text. Palacios adds to the requisite already mentioned, that the marriage must have been celebrated, and that the husband must sustain the burthens of the marriage, as laid down in L. 25. tit. 11. P. 4. He observes, that this must be understood without prejudice to what will be afterwards said in this title, and with attention to Ll. 4. and 5. tit. 9. lib. 5. Rec. (Ll. 3. and 5. tit. 4. lib. 10. Nov. Rec.), which enact, that the fruits (frutos) received during marriage, whether arising from property belonging to the husband, or to the wife, are divided, or appertain, in equal portions, to both.

14 The law (L. 21. tit. 11. P. 4.) referred to in the text, says, that the husband shall enjoy the fruits or increase of the cattle, subject to the condition of supplying the numbers which may die, from those which may be born. Palacios, on this part of the text, observes, that the increase or decrease, improvement or deterioration of dotal property appertains to the husband when it has been delivered to him valued, or when it is delivered in any of those things which consist in weight, number, or measure; and that the same appertains to the wife, when such property hath not been delivered to the husband valued, or under appraisement. The learned professor adds the substance of what is stated in the first part of this note.

15 Ex. gr. a house. Unless, says Palacios, referring to L. 18. tit. 11. P. 4. it should be proved that the loss had arisen by the fault of the husband.

16 The loss or risk, according to L. 22. tit. 11. P. 4., would belong to the wife; because, although she may not be bound, in this case, to the warranty of the dote, the injury which she suffers in its loss, is greater than that which the husband suffers; and what is more, without this explanation, it would, perhaps, be supposed, that the husband was bound to the warranty (saneamiento) of the dote; Palacios (5).

duty of the husband to recover the dole," L. 15. tit. 11. P. 4. [L. 15. tit. 11. P. 4.] 10th, Except that it be a debt due by the wife's father, grandfather, or great grandfather;18 in which case the husband is not responsible for the risk which might ensue, if any of them should arrive at a state of poverty, on account of his not being able to enforce the recovery of it from them,19 L. 15. tit. 11. P. 4. [L. 15. tit. 11. P. 4.] 11th, But if it were the debt of a stranger, and the [ 52 ] husband were able to compel the payment of it in time, he will be responsible, although the stranger should be reduced to poverty; and the wife shall be entitled to her action against the husband for it, if he should not recover it, L. 15. tit. 11. P. 4. [L. 15. tit. 11. P. 4.] 12th, This is understood if the debt due by the stranger were an onerous debt (de apremia); because, if it arose from mere voluntary obligation; as, for instance, if any one should have promised the wife to give her any certain thing, and the husband neglected to ask for it at a time when the stranger was able to pay it, then the prejudice or injury shall belong to the husband; and if it is a thing not certain or specific, the husband is not obliged to recover it; and, consequently, is not responsible for the damage which may result, L. 15. tit. 11. P. 4. ad fin. [L. 15. tit. 11. P. 4. ad fin.]

From the fourth axiom it follows, 1st, That the husband cannot alienate, sell,20 nor mispend the dote, L. 7. tit. 11. P. 4. [L. 7. tit. 11. P. 4.] 2d, But if he should, and the wife fear that he may be reduced to poverty, she will have a right to require security from him, and an allowance of aliment,21 L. 29. tit. 11. P. 4. [L. 29. tit. 11. P. 4.]

§ 6. The restitution of dote takes place in three cases. 1st, By the death of the wife. 2d, By reason of the existence of an impediment, which may dissolve the marriage. 3d, By divorce. In the first case, if the wife dies without children, the dote called profecticia

17 That is, dote which consists of the assignment of a debt that was due to the wife. See L. 15. tit. 11. P. 4. quoted in the text.

Is Palacios states, that in this case, also, it is competent to the husband to recover the dote, although it is true, that if he does not recover it, he is not responsible, for the reason assigned by the text. He refers to L. 15. tit. 11. P.

19 On account of the relationship of such persons.

20 He can dispose of dote in money, &c., but the amount must be returned out of his property, after the dissolution of the marriage. Sce L. 7. tit. 11. Part 4.; and also L. 21. ibid. Palacios has a note (1) here to the above effect. He says, that when the date is comprised of things consisting of weight, number, or measure, and when it is valued under an appraisement which produces sale or transfer, the husband may aliene it; for in such cases, an irrevocable dominion in the dote is transferred to him, with the obligation of restoring its value, or the quantity, if they are things which consist of weight, number, or measure, after the dissolution of the marriage. He refers to Ll. 7-18. and 21. tit. 11. P. 4.

21 This Law (29. tit. 11. P. 4.) gocs further, and says, that if the husband badly administers the dotal property, or be a gamester, &c., and the wife fears he will dissipate it, she may judicially require that he be compelled to deliver it up to her, or to give security that he will not dispose of it; or to deliver it into the possession of a third person, to take care of, and to apply the profits to their support or maintenance; but it seems she cannot demand the dote, being thus taken out of the possession of her husband, if his poverty or distress were occasioned by mere misfortune, and not by culpability or improper conduct. See the law referred to.

is restored to the father; and if it is dote called adventicia, to the heirs of the wife; observing, in this case, the covenants of the deed of dote, or marriage articles, (escritura de dote,) L. 30. tit. 11. P. 4.; [L. 30. tit. 11. P. 4.;] but if she leaves children, the husband 22 remains in the enjoyment of the usufruct, and the dominion (la propriedad) passes to them. If the wife dies without making a testament, and without father or relation who may inherit from her, the dote escheats to the crown, (a la real camara,) L. 12. tit. 8. lib. 5. Rec. [L. 1. tit. 22. lib. 10. Nov. Rec.,] which annuls or alters23 L. 23. tit. 11. P. 4. [L. 23. tit. 11. P. 4.] In the second case, if the dote is "profecticia," it is delivered to the father;24 and if "adventicia," to both;25 and if the father be dead, to the daughter, whether she has children or not, L. 30. tit. 11. P. 4. [L. 30. tit. 11. P. 4.] In the third case, if the dote is adventicia, it is given to the daughter, and not to her father, although he may be living, L. 30. tit. 11. P. 4. [L. 30. tit. 11. P. 4.]

Dole consisting of real property is restored immediately on the dissolution of marriage; and if it consists of personal property (meubles) restitution shall be made of it within a year, unless there be minor children,26 when the surviving consort is not obliged to deliver up the dote until the children arrive at the age of majority; but he or she shall be bound to maintain and educate them, and not to alienate nor mispend the dote, L. 31. tit. 11. P. 4. [L. 31. tit. 11. P. 4.]

[53] At the time of this restitution, the husband may require to be reimbursed the expenses which he has laid out on the dotal property which have proved beneficial; but not those which shall serve

22 Or the wife, as to donatio propter nuptias and arras, if she is the survivor. See L. 23. tit. 11. P. 4. Palacios observes in respect to this enjoyment by the husband of the usufruct of dotal property after the death of the wife, leaving issue, or this species of tenancy by the curtesy, that it only lasts while the children are under the paternal power, L. 5. tit. 17. P. 4.; for that by going, or being absolved, from it, they acquire the property and the usufruct of adventitious property, L. 9. tit. 1. lib. 5. Rec. [L. 3. tit. 5. lib. 10. Nov. Rec.] Greg. Lopez gl. 6. L. 15. tit. 18. P. 4.; but that if the release be by emancipation, the father may retain the half of the usufruct, L. 15. tit. 18. P. 4.

23 Only in this last respect, L. 23. tit. 11. P. 4., having in the case of husband or wife dying intestate, and without heirs, given the survivor of them the dotal, &c., property of the other. Palacios says, some authors are of opinion that L. 12. tit. 8. lib. 5. Rec., [L. 1. tit. 22. lib. 10. Nov. Rec.,] does not repeal or alter L. 23. tit. 11. P. 4., and that, therefore, in default of relations, the wife and the husband ought to inherit from cach other according to the survivorship respectively. The learned Professor adds, that he dares not go this length, but he will remark, that L. 23. tit. 11. P. 4., directly, positively, and expressly calls the surviving consort to the inheritance of the property of the one deceased, in default of heirs or relations; and that neither L. 12. tit. 8. lib. 5. Rec., nor the royal order (Reglamento) of 1788, in regard to escheats, excludes husband and wife from this benefit of reciprocal inheritance. Among those authors who entertain the foregoing opinion, the learned Professor might have mentioned the respectable authority of Azevedo. Vide his Com. on the Law of the Rec. under consideration.

24 i. e. to the father of the wife.

25 i. e. to the wife and to her father. Palacios says, if adventitious, it is delivered to the daughter alone; if profectitious, to the father and daughter jointly. He reiers to L. 30, tit. 11. P. 4.

26 Of the marriage.