TITLE III.

OF TESTAMENTS AND INHERITANCES.

[104] THE second right in the thing is that by inheritance; which is no more than the right of succeeding to the property which a deceased person had at the time of his death: an inheritance is gained by testament, or ab intestato, Prolog. tit. 13. P. 6. [Prol. tit. 13, P. 6.]

Cap. 1. § 1. Testament is a testimonial in which is contained and set forth the will of him who makes it, establishing or appointing his heir, and disposing, as he thinks fit, of his property after his death, L. 1. tit. 1. P. 6. [L. 1. tit. 1. P. 6.]

It is of two sorts, open (abierto) and closed (cerrado). The open, or nuncupative will, ought to be executed before a public escribano and three witnesses,1 inhabitants of the place; and if the testator is blind, five are necessary; and if there is no escribano, five witnesses of the place are requisite, unless they cannot be met with, and then three inhabitants of the place, or seven strangers or non-residents (forasteros) will be sufficient, L. 1. tit. 4. lib. 5. Rec. [L. 1. tit. 18. lib. 10. Nov. Rec.] The closed, or written will, which is made in secret (en poridad), according to L. 2. tit. 1. P. 6., [L. 2. tit. 1. P. 6.] is delivered to the escribano, signed on the outside by the testator and seven witnesses, with the attestation of the escribano, L. 2. tit. 4. lib. 5. Rec. [L. 2. tit. 18. lib. 10. Nov. Rec.]

§ 2. All those whom the laws do not expressly prohibit, may make a testament, L. 13. tit. 1. P. 6. [L. 13. tit. 1. P. 6.] Wherefore 1st, The child who is under the power of the father, if a male above fourteen, or if a female, above twelve years of age, may make a testament, L. 4. tit. 4. lib. 5. Rec., [L. 4. tit. 18. lib. 10. Nov. Rec.] which alters in this respect, L. 13. tit. 1. P. 6. 2d, The madman cannot make a testament, nor the spendthrift (degastador), who shall be prohibited by the judge from aliening his property, L. 13. tit. 1. P. 6. [L. 13. tit. 1. P. 6.] 3d, Nor they who are deaf and dumb from

1 By order of his Royal Highness the Prince Regent in Council, 8th June, 1816, proclaimed in Trinidad 9th August, 1816, all wills, testaments, and codicils made within the Island of Trinidad, shall be attested by three male witnesses, domiciliated inhabitants of the place and quarter wherein the same shall be made, or of two such witnesses, and the Commandant of such quarter. Vide Appendix M.

2 Although an open or nuncupative will may also be in writing, according to L. 1. tit. 1. p. 6.

3 L. 4. tit. 18. lib. 10. Nov. Rec. does not alter L. 13. tit. 1. P. 6., it only declares, that a son or daughter, although under parental power, may make a testament, if of legitimate or competent age to make such; which age is fixed by the law of the 6th Partida cited; and sce Azevedo on L. 4. tit. 4. lib. 5. Rec. n. 1.

birth, but those who should become so from sickness, are permitted to make a testament if written with their own hand, L. 13. tit. 1. P. 6. [L. 13. tit. 1. P. 6.] 4th, The person condemned3 for crime may dispose by testament of his property, with the exception of that confiscated, L. 3. tit. 4. lib. 5. Rec., [L. 3. tit. 18. lib. 10. Nov. Rec.] which alters L. 15. tit. 1. P. 6. 5th, The heretic convict, or the adjudged traitor, cannot make a testament, L. 16. tit. 1. P. 6. [L. 15. tit. 1. P. 6.] 6th, They who embrace a religious order, may make a testament before they take the vow, but not after (antes de la [105] profesion), &c., L. 17. tit. 1. P. 6. and L. 11. tit. 6. lib. 3. [L. 17. tit. 1. P. 6.] Fuero Real. 7th, A clergyman may dispose of any of his property by way of last will, L. 3. tit. 21. P. 1. [L. 3. tit. 21. P. 1.] Sth, The pilgrim may freely dispose of his property by testament, L. 2. tit. 12. Lib. 1. Rec. [L. 2. tit. 30. lib. 1. Nov. Rec.]

§ 3. The persons who cannot make a testament, cannot be witnesses to one, nor can women, Ll. 9. and 10. tit. 1. P. 6. [Ll. 9 and 10. tit. 1. P. 6.]

§ 4. As the will of man is of such a nature that it varies in many ways, L. 25. tit. 1. P. 6., [L. 25. tit. 1. P. 6.] the testator is at liberty to change his testament as often as he pleases up to his death, L. 25. tit. 1. P. 6. [L. 25. tit. 1. P. 6.] This may happen in two ways, either by making another testament, or by tearing up or destroying that already made.

Hence it is, in order that the testament last made may revoke or annul antecedent ones, it must be complete; that is, with the same solemnities and requisites we have before spoken of, [Ll. 21. and 23. tit. 1. P. 6. [Ll. 21. and 23. tit. 1. P. 6.] 2d, That if in the last testament the heir is changed for a certain or assigned reason or motive which shall prove to be false, it shall not deprive the first heir of the inheritance, although the second or last testament may take effect as to the bequests or legacies, L. 21. tit. 1. P. 6. [L. 21. tit. 1. P. 6.] 3d, That the cancellation of the testament ought to be made inten

4 That is, if such person be without understanding; otherwise he is not prohibited, it would seem. See Gr. Lopez. Gl. 11. on L. 13. tit. 1. P. 6.

5 To natural or civil death; by which last is meant banishment or transportation.

6 That is, so declared by law, as attaching to the commission of the crime; or shall be declared confiscated by the sentence of the judge. See Azevedo on L. 4. tit. 4. lib. 5. Rec.; and see L. 3. tit. 18. lib. 10. Nov. Rec.

7 Nor by L. 16. tit. 1. P. 6. cited, can persons convicted of libels charging others with infamous offences.

There

Members of religious orders (religiosos), observes Palacios, cannot make a will, and yet there is no statute or law, which prohibits them from being witnesses to one. are others, also, on the contrary, who are prohibited from being witnesses, and are not prohibited from making a will. Such, in the first place, are women, those adjudged thieves or robbers, persons guilty of homicide, and those who have committed similar offences, L. 9. tit. 1. P. 6. Such persons labor under an absolute disability, differing from those who are subject to a relative disqualification. Such are children in respect of the will of their parents, &c. Ll. 14. tit. 16. P. 3.

Women are mentioned in the text as an exception; and the remaining persons set forth in the note of the learned professor, are incompetent as witnesses, by reason of infamy, relationship, interest, &c. See further Ll. 9, 10. and 11. tit. 1. P. 6.

tionally, and not accidentally, L. 24. tit. 1. P. 6., [L. 24. tit. 1. P. 6.] which says, that it is enough to tear part of the writing in order to render it invalid.9

From the liberty which every one possesses to make a will, it follows that whoever shall impede or restrain it by fraud or force, shall be deprived of that part which he was entitled to inherit or take from the testator, and which shall be applied to the exchequer (camara), Ll. 26. and 27. tit. 1. P. 6.; [Ll. 26. and 27. tit. 1. P. 6.] and even if any injury results from his conduct, he shall be obliged to make satisfaction to the injured party in double the amount, L. 29. tit. 1, P. 6. [L. 29. tit. 1. P. 6.]

§ 5. Hence it also arises, that another person may be authorised to make a testament for the principal, L. 6. tit. 5. lib. 3. Fuero Real, who is called delegate or substitute (comisario), whose powers are established under these laws. 1st, That the delegate 106] cannot meliorate (mejorar), substitute, nor name an heir without special power,10 L. 5. tit. 4. lib. 5. Rec. [L. 1. tit. 19. lib. 10. Nov. Rec.] 2d, That having only a general power, he can merely discharge the conscientious duties of the testator; as paying debts, disposing of the fifth for the benefit of his soul, dividing the remnant between the heirs ab intestalo, and if there be none, disposing of it for pious uses, L. 6. tit. 4. lib. 5. Rec. [L. 2. tit. 19. lib. 10. Nov. Rec.] 3d, That without special power, he cannot revoke the testament, nor any disposition made by it, Ll. 8. and 9. tit. 4. lib. 5. Rec. [Ll. 4. and 5. tit. 19. lib. 10. Nov. Rec.] 4th, That the heir being appointed by the testator, the comisario can only dispose of the fifth, L. 11. tit. 4. lib. 5. Rec., [L. 6. tit. 19. lib. 10. Nov. Rec.] and not doing it, the heirs12 are to distribute the fifth for the benefit of the testator's soul, L. 10. tit. 4. lib. 5. Rec. [L. 13. tit. 20. lib. 10. Nov. Rec.] 5th, The time he has for making the necessary dispositions is four months; if he be out of the place, six months; and one year if he be absent from the kingdom, L. 7. tit. 4. lib. 5. Rec. [L. 3. tit. 19. lib. 10. Nov. Rec.] 6th, If there be many delegates (comisarios), and some die, the power remains entire to the survivor; and if there be a disagreement,13 they must have recourse to the judge to determine it, [L. 12. tit. 4. lib. 5. Rec. [L. 7. tit. 19. lib. 10. Nov. Rec.] 7th, The power that is given to the delegate must contain or be

11

9 Provided it be not proved to have been done accidentally, L. 24. tit. 1. P. 6. ad fin. 10"The testator," says Palacios, "naming therein the person whom he directs, the trustee, or fidei commissary, to institute heir, L. 9. tit. 19. lib. 10. Nov. Rec.

"That is to say," observes Palacios, “that when the testator hath appointed an heir, and hath given power to another to complete his will, or the disposal of his property, the trustee (comisario) cannot dispose of, or bequeath, after payment or discharge of the debts and burthens of the testator, more than the fifth part of his property," unless, L. 6. tit. 19. lib. 10. Nov. Rec., cited by the learned professor, adds, the trustee is specially authorised to do more.

12 And not being necessary (forzosos) heirs. See L. 13. tit. 20. lib. 10. Nov. Rec. cited. 13 It must be determined by the majority; and if no majority, recourse must be had to the assistance of the judge or alcalde, who forming one of the majority, will decide. See L. 7. tit. 19, lib. 10. Nov. Rec. cited.

executed with the same solemnity as the testament, L. 13. tit. 4. lib. 5. Rec. [L. 8. tit. 19. lib. 10. Nov. Rec.] 8th, The power of assigning the third and fifth by way of melioration (mejora), can never be delegated to another, L. 3. tit. 6. lib. 5. Rec. [L. 3. tit. 9. lib. 10. Nov. Rec.]

§ 6. The wills of soldiers who are on actual service (en guerra actual), do not require such solemnity, and it is sufficient that the will be proved by two witnesses, or by a simple writing under the hand (de puño) of the soldier, Orden Milit. trat. S. tit. 11. Art. 1,2. 3, and 4.

§ 7. A codicil is also a species of will, that is, a short writing which some men make after or before their testaments are made, L. 1. tit. 12. P. 6. [L. 1. tit. 12. P. 6.] Codicils are made with the same solemnity as the open or nuncupative testament, L. 2. tit. 4. lib. 5. Rec.; [L. 2. tit. 18. lib. 10. Nov. Rec.]; and are made use of to bequeath, to substitute an heir,14 and to correct the testament, L. 1. tit. 12. P. 6. [L. 1. tit. 12. P. 6.]

Cap. 2. The most principal part of the will is the institution or appointment of an heir, the establishment of whom and other things relating thereto, we are about to explain.

The institution of an heir is the establishment by one man of another as his heir, so that he remains proprietor after the testator's death of his property, or some part of it, in the place of the testator, L. 1. tit. 3. P. 6. [L. 1. tit. 3. P. 6.]

To understand this, it is necessary to consider three things [107] 1st, Who may or may not be heirs. 2d, How and in what manner they ought to be established or appointed. 3d, How the testator may dispose of his property.

1. As to what relates to the first point, we say, that every person, community, or corporate body, church, &c. may be heir, whom our laws do not prohibit from being so,15 L. 2. tit. 3. P. 6. [L. 2. tit. 3. P. 6.] They prohibit, 1st, apostates, renegados, persons condemned to the mines, and associations, or bodies of men which have been formed contrary to law, or without the permission (voluntad) of the prince, L. 4. tit. 3. P. 6. [L. 4. tit. 3. P. 6.] 2d, The incestuous children of the clergy, who are not only rendered incompetent to inherit, but cannot enjoy any bequest from their father nor their paternal relations, L. 4. tit. 3. P. 6. and L. 6. tit. 8. lib. 5. Rec. [L. 4. tit. 3. P. 6. L. 4. tit. 20. lib. 10. Nov. Rec.] 3d, Illegitimate children, if there be lawful children or ascendants of the father; but they shall be able to inherit from their mother in preference to ascendants, and this, notwithstanding they may be the offspring of an incestuous or a con

14 An heir cannot be substituted directly, nor can a condition be imposed upon him by a codicil; neither can an inheritance be given or taken away directly by it, although it may indirectly by means of a fidei-commissary; not, however, it is presumed, in the case of a necessary heir. See L. 2. tit. 12. P. 6. and L. 7. tit. 3. P. 6.

15 Confirmed by L. 5. ibid. which see.

demned intercourse16 (dañado ayuntamiento)," L. 7. tit. 8. lib. 5. Rec. [L. 5. tit. 20. lib. 10. Nov. Rec.] which amends L. 11.18 tit. 3. P. 6. 4th, Illegitimate children do not inherit, but in default of legitimate children; but they must be made legitimate by a subsequent marriage, or by the royal authority,19 L. 10. tit. 8. lib. 5. Rec., and L. 9. tit. 15. P. 4. [L. 7. tit. 20. lib. 10. Nov. Rec. L. 9. tit. 15. P. 4.]

§ 2. The establishment of heir ought to be made in a complete or finished testament (acabado) and not in any other writing,20 L. 7. tit. 3. P. 6. [L. 7. tit. 3. P. 6.], with his express nomination, absolutely or conditinally.

Hence it follows, 1st, That the institution of heir cannot be made in a codicil, unless it takes its force or effect from some clauses expressed in the testament; but if it be declared by the testament, that a part of the testator's property shall be assigned by the codicil to the heir named in the testament, and no expression or specification of this part is afterwards made in the codicil he shall be absolute heir of the testator's property, which is not devised or bequeathed to another, L. 9. tit. 3. P. 6. [L. 9. tit. 3. P. 6.], and if there were two persons so appointed, they shall inherit equal parts, L. 9. tit. 3. P. 6. [L. 9. tit. 3. P. 6.] 2d, The heir named or appointed by the will, cannot be set aside or deprived of the inheritance by the codicil,21 although a person may be substituted by it to succeed him, L. 7. tit. 3. P. 6. [L. 7. tit. 3. P. 6.] 3d, A person being once absolutely or unconditionally instituted heir by the testament, cannot be saddled with any condition by the codicil, L. 8. tit. 3. P. 6. [L. 8. tit. 3. P. 6.] 4th, If there be two persons of the same name, some particular cir[108]cumstance should be expressed, in order that the intention of the testator may be known and clearly understood, L. 10. tit. 3. P. 6. [L. 10. tit. 3. P. 6.] 5th, That this circumstance should not be defamatory (infamatoria) because it annuls the establishment of heir; although it will not produce such effect, if the testator only speaks ill of him generally, L. 10. tit. 3. P. 6. 6th, That the nomination or appointment is not valid, if a mistake be made in the person of the heir, L. 12. tit. 3. P. 6. [L. 12. tit. 3. P. 6.] 7th, That a person being established heir of a certain part of the testator's property, if no

16 This is wrong. The law cited prohibits such from inheriting from their mothers, either ex testamento or ab intestato; but permits the mother to give during life, or to be. queath to them, the 5th part of her property, and no more, which she is allowed to dispose of for the benefit of her soul.

17 Such for which the mother is liable to suffer death. See. L 5. tit. 20. lib. 10. Nov. Rec.

18 The citation is erroneous; it is supposed L. 4. of the same title and part. is meant. 19 If legitimated by royal authority, they are excluded from inheriting by the subsequent birth of legitimate children, or by the connubial legitimation of illegitimate ones, although they are on an equal footing w th both the others, as to honors and pre-eminences, and other things in right of their parents. See L. 7. tit. 20. lib. 10. Nov. Rec., cited.

20 i. e. codicil. See the law cited. 21 See note 14.