Thursday, November 20, 2014

1207 Wills of Jose Pablo Rael and Nicolas Rael his father – legal proceedings against the estate

Reference:  Spanish Archives of New Mexico, Series I, Twitchell 1207, Reel 6, Frames 662-686.
©Patricia Sanchez Rau

Public Survey Office
May 17, 1780
Will of Jose Pablo Rael, soldier of the Santa Fe Garrison and proceedings relative to the settlement of the estate.

The larger part of the document is a dispute between Diego Antonio Baca, father-in-law of Rael and doña Teodora Ortiz, his mother, over certain effects left by the deceased.  There is no decision by the Governor Juan Bautista de Anza to whom the various petitions are addressed.

(No conclusion of the lawsuit in this archive).

The latter part of the archive contains the will of Nicolas Rael, Pablo Rael’s father.  (Page 15)

In the name of Almighty God.
Know ye all who may see this letter, that I, Jose Pablo, soldier of this royal garrison, finding myself ill in bed, and in my sound mind; I order my memorandum and testament.

First:  I believe and acknowledge the ineffable mystery of the most blessed, most holy and self-existent Trinity, God the Father, God the son, and God the Holy Ghost, three distinct persons and only one true God.  I believe in the second person who is our Lord Jesus Christ, who was made flesh in the blessed womb of our Lady, the Virgin Mary, remaining a virgin in childbirth before and after.  In the same manner I believe that he suffered and died on the cross to redeem and save us.  I believe that he arose on the third day; I believe that he will come to judge the living and the dead.  Lastly, I believe and acknowledge all the mysteries which our holy mother, the Catholic Apostolic Roman Church believes and acknowledges and in which faith and belief I want to live and die.

Item:  I declare and order my soul to God who created and redeemed it.

Item:  I order my body to the earth, to be buried in the parish church of this villa, near the grave of my father, and that it be shrouded with the habit of my father St. Francis.

Item:  My funeral shall be with two tables, vigils and a funeral Mass that which may be proper in the matter being left to the pleasure of my superior.

Item:  I order that ten Masses be celebrated for my soul.

Item:  I order that each of the forced legacies (mandas forzosas) be given two reales of the land.

Item:  I declare that I have been married with church benediction according to the rites of our holy mother church, to Maria Barbara Baca, for the period of two years and five months, during which marriage we have had two children, Ana Maria and Nicolas.

Item: I declare as my property that which by the death of my father appears in his testament, it being understood to be one half of that which at present is or may be in existence, and of what may be living according to what was declared by my father; which property shall remain without controversy for the benefit of my wife and son.

Item: I declare that I have two heifers and one bull which are with the cattle of my mother. These shall be separated there from, because they belong to my wife and son.

Item: I declare that I owe to Jose Manuel Beytia, resident of Bernalillo, seven and one-half varas of unbleached muslin, worth three pesos. I order that it be paid.

Item: I declare that I owe to Juan Antonio Salazar, resident of la Cañada, one vara of unbleached muslin or Rouen linen. I order that it be paid.

Item: I declare that I owe to don Jose Ortiz one piece of medium wide unbleached muslin and two pesos in money. I order that they be paid.

Item: I declare that the soldier, Jose Ignacio Alari, owes me three one-year-old heifers, as appears from his note. I order that they be collected.

Item: I declare that the soldier, Jose Vegil, owes me two reales in silver. I order that they be collected.

Item: I declare that the soldier, Santiesteban, owes me two reales in silver. I order that they be collected.

Item: I declare that the soldier Garviso owes me two reales in silver. I order that they be collected.

Item: I declare that Corporal Juan de Jesus Beitia owes me two reales in silver. I order that they be collected.

Item:  I declare that Manuel Enzinas, resident of this villa, owes me thirty-seven pesos and four reales that I have given him; and he is repaying them with his work at the rate of the prices of the products of the land.

Item: I declare that Vicente Baca, resident of Atrisco, owes me fifteen pesos of the land. I order that they be collected.

Item:  I declare that Bartolome Lovato owes me twenty-two pesos of the land, which he may serve and repay with his work.

Item: I declare as my executor and the custodian of my property, don Diego Antonio Baca, my father-in-law, in the first place, and my wife in the second, that they may fulfill and keep this memorandum, testament and last will, that I may be enjoyed by my wife and son with God’s blessing and mine. In order that it may have due effect and fulfillment, I request my Ensign to interpose his authority and judicial sanction; and I, the said Ensign, by the power that has been conferred upon me by my Lieutenant Colonel don Juan Bautista de Anza, Governor and Commander General of this kingdom, did interpose it; acting with the undersigned assisting witnesses with whom I act for the lack of notaries, of which there is none of any kind in this government, to which I certify. The grantor signed it with me on the 17th day of May, 1780. Done as above stated, etc. I signed it.
Jose Pablo Rael (rubric);
Jose Maldoñado (rubric) and Sergeant Juan de Abrego (rubric).

Señor Governor and Captain General:
Diego Antonio Baca, resident of this villa of Santa Fe, executor for my son Joseph Pablo Rael, as appears by his testament which I present here to your Excellency, say Sir, that I went to see doña Teodora Ortiz, mother of my said son-in-law, so that she might deliver to me the property belonging to my said son, Joseph Pablo, may he rest in peace, in order that I may deliver to my daughter Maria Barbara Baca, wife of the said Joseph Pablo Rael, deceased, that the afore-mentioned doña Teodora Ortiz replied in the presence of witnesses that she did not have to give her anything, but rather that she should demand from her that which her son had given my daughter during their marriage.  I request your Excellency be pleased to have the testament of her deceased husband, don Nicolas Rael exhibited and likewise that your Excellency be pleased to order that all the cattle under the care of herders be examined.  I ask and request your Excellency to be pleased to provide what may be found according to justice: I swear that this is not done in malice, but is necessary, etc.

            Diego Antonio Baca (Rubric)
Villa of Santa Fe on May 14th 1782

Whereas occupations of greater importance to the service of the King and public do not give me time to hear the demand contained in the foregoing petition; and considering that the defendant is the sister of the present Alcalde Mayor of the said villa, therefore, I confer the authority and commission which may be necessary and most proper according to the law to don Manuel Garzia Parejas, resident of the said villa, in order that he may hear the said parties in everything which they may have to allege, admitting the proofs and witnesses which they may present, until these proceedings may be ready for decision, which he shall return the original to me in order that, in consideration thereof, I may determine what may coincide with the best administration of justice; which decree I, the undersigned political and military Governor of the province of New Mexico, issued on said day, month and year before my assisting witnesses to which I certify, to present, written between the lines is valid.
            Juan Bautista de Anza (Rubric)
Witnesses: Francisco Perez Serrano (Rubric)
            Vicente Troncoso (Rubric)

In the villa of Santa Fe, on the 20th day of May, of the present year 1782, by virtue of the commission conferred upon me by his Excellency, Lt. Colonel don Juan Bautista de Anza, political and military governor; in obedience to what was ordered by his Excellency, I executed the proceeds until the same were put into the state ordered; and that it may so appear, I wrote it down and recorded it as a judicial proceeding, which I signed with my assisting witnesses, with whom I act for want of a public or royal notary of which there is none of any kind in this government.  I certify.
            Manuel Garzia Pareja (Rubric)
            Juez Receptor (Receiving Judge)
Witnesses:  Julian de Armijo (Rubric)
Pablo de Sena (Rubric)

Immediately on said, day, month, and year, in obedience to what has been commanded by the foregoing writ, for the purpose of following the same I ordered that a copy thereof be referred to doña Teodora Ortiz, who, in consideration thereof, may allege what may be favorable to her right.  I so provided, ordered, and signed with my assisting witnesses, with whom I act as stated to all of which I certify.
Manuel Garzia Pareja (Rubric)
            Juez Receptor (Receiving Judge)
Witnesses:  Julian de Armijo (Rubric)
Pablo de Sena (Rubric)

Honorable Manuel Garcia Parejas, judge commissioner, I Teodora Ortiz, widow of Corporal Nicolas Real, appear before your honor in the best form and manner favorable to my right; and answering the petition presented by don Diego Antonio Baca, the father-in-law and executor for my son Jose Pablo Rael, I say that he is mistaken regarding the answer which he says I gave him when he came to request from me one-half of my property, because my answer was that I was not delivering from what I have; on the contrary, that I had to claim what my son carried into his marriage, but avoiding  extra judicial words and going into legalities, I will say that no testament can deprive me of the right which I have to take from the capital of the property existing at the time of the death of  my deceased husband, all that I have inherited from my parents and brought to the marriage, and which are the following:  nineteen head of cattle from my mother’s side, which is a number equal to what all my brothers received; and from my father’s side two hundred and ninety five pesos in cattle and other effects, according to the appraisal, besides one hundred and fifty pesos more, that my deceased husband received for the portion of the house and agricultural lands which was my share in the ranch of Pojoaque which he sold to doña Josefa Bustamante.  Neither can any testament deprive me of the right which I had and have to one-half of the property acquired during our marriage.  Wherefore, if the plaintiff believes that the testament of my deceased husband can favor him, let him search for it, for it will not fail to be in the archives.  This being understood, I say that no one can make a bequest of anything in his testament but property which may be his own and not someone else’s; wherefore, the one that my said son made to his wife in his testament, but not include more than that which was his own by inheritance from his father, and that was one half of the property acquired during our marriage; and it being his will to bequeath one half to his wife and son, it results by forcible consequence that what my daughter-in-law has to receive by virtue of said clause is the fourth part of the property acquired during their marriage, because the other fourth part belongs to me as legitimate heir of my said son, as my two grandchildren have died.  Only in the stated manner do I agree to the said order and clause of the testament of my said son, and not in any other.  In order to integrate it, the following goods which my aforesaid son took out of the bulk of the estate and put into his marriage shall be included in the count; eleven good horses, one mule, the full equipment of a soldier, that is:  shotgun, pistols, new leather jacket, shoulder belt, sale, two bridles, one of which cost fifteen pesos, some new saddle pads of half a caparison, one pair of spurs with silver buckles, two swords, one with silver chaps and ring, one full cartridge box, one small leather trunk of cartridges; one pair of silver shoe buckles, one pair of large silver buttons that cost one bull; besides one horse and mare delivered to him by my brother, Juan Ortiz at Tome; a shield painted in oil colors, one lance with oak handle, a cow and a calf which he sold to Tomas, my brother, a fat cow that he butchered at his house, one bull that he sold to Jose Miguel Tafoya; another one which he sold to soldiers when he was herding the horses.  When the fourth part of the community property, which is the share that legally belongs to my daughter-in-law, and the total amount of the above mentioned property are determined, if the latter is not sufficient to fill the claim, I am ready to make up what is lacking.  If it is more, then I request that the surplus be returned to me.  Also, when that which it may be proved was spent on the funeral, the shroud, debts paid, Masses mentioned in the testament, etc. have been taken out of the property which my son had at the time of his death, such is the fund which the soldiers leave in the treasury, the new uniform and whatever else there may have been, if there is anything left, it shall be returned to me because I am, without contraction, the general heiress of my son and my daughter-in-law is not, save in the share my son could lawfully leave her and in nothing more.  I argue in my favor the protection which his Majesty (May God Protect him) grants me as a widow; for all of which and the rest which conforms to my right, I request and entreat your Honor to be pleased to decree and order as I have asked, for it is justice and I swear in the best form that it is not of malice.  I protests costs and whatever is necessary.  “Belongs” between lines is valid.
            Teodora Ortiz (Rubric)

Then immediately for the purpose of following these proceedings, having examined the answer given by doña Teodora Ortiz, I order that a copy thereof be referred to don Diego Antonio Baca, on this 30 day of May 1782.   I so decreed and ordered and signed with my assisting witnesses, with whom I act for want of a public or royal notary of which is there is none of any kind in this government, to which I certify.
            Manuel Garzia Pareja (Rubric)
            Juez Receptor
Witnesses:  Pablo de Sena (Rubric)
            Julian de Armijo (Rubric)

Señor Commissioner, don Manuel Garzia Parejas (sic)
I, Diego Antonio Baca, resident of said villa of Santa Fe, executor for my son-in-law Jose Pablo Rael, in pursuit of the action which I am following against Theodora Hortis (sic), the mother of my son-in-law, in defense of the property belonging to my daughter Maria Barbara Baca, which she must inherit from her son, Nicolas Rael, who survived his deceased father Jose Pablo Rael and having seen the allegations and charges that she makes and the writ issued by the honorable Judge Commissioner say, that in proof of my good procedure and the justified right that assists me, it is false, that I have proceeded with equivocation in my first petition presented to his Excellency, don Juan Bautista de Anza, Governor of this kingdom; but I have proceeded with the truth and Christian simplicity referred to in said petition, as I can prove by Miguel Barranca who was present; and even when the mother of my son-in-law may want to retract (her statements) in the same document with a few different terms, she acknowledged it.  Second:  I say that although it is true that no testament or public instrument can deprive any person of the right that legally belongs to him, unless it is presumed that the said person has virtually surrendered it by failing to protest it, even though present at the executing of the instrument and able to see that his rights  were being damaged, (it is also true that she cannot be deprived of that right) to take out of the bulk of the property that which she put into it at the time of the marriage which my said ‘consuegra’ contracted with Nicolas Rael, not having spent it according to her desire after his death; still it is not evident to me that my said ‘consuegra’ put any property into the said marriage, other than those things she mentioned in the preceding allegation I consider suppositious and imagined, for if they were true, it would be probable that it would appear from the testament of her husband and he would have declared them before everything, to ease his conscience and avoid litigations in the future, as any Christian does.  And assuming that he did not do this, nor did my ‘consuegra” being present at the execution of the testament referred to, make any protest to the clause whatever, it is to be presumed that she had spent them on herself, or given them liberally to other persons, therefore, testaments should always be followed to the letter.  Third:  I say that no testament can deprive my said ‘consuegra’ of one half of the property acquired during their marriage, which the law calls “community property”, neither is there a law that can deprive my daughter of the other one half which belonged to my son-in-law Jose Pablo Rael, of whom she is a lawful heir by the death of her legitimate son, Nicolas Rael, because according to every law, the children are the general heirs of their parents and parents of their children and not the grandparents as they are in a degree more remote from their grandchildren.  Thus, not one-fourth part, as stated by my ‘consuegra’ but everything inherited by my said son-in-law was handed down to his son Nicolas, as is just and from his son to my daughter as the legitimate mother and most immediate heir as appears by his will.  Fourth:  I say that concerning the charges that she makes of the property that my said son-in-law put into the marriage contracted with my daughter, I can only say that there are not as numerous nor as my ‘consuegra’ exaggerates, as of the eleven horses I knew only six that exist, and one that my ‘consuegra’ said was given to Father Burgos for Masses; another one that died in royal service, and an old gray horse that was sold to Vicente Baca for fifteen pesos in products of the land.  The mule and one of the horses mentioned by my ‘consuegra’ were given for one of those now existent.  It is also true and evident that my son-in-law butchered the fat cow mentioned for the support of his family and sold a yearling bull which had been hurt in the shoulder to the soldiers that were herding the horses; but it is also true that he was taking care of them and the servants who were herding were paid by him, whose services are worth more than the cow and the bull mentioned.  Of the other bull, mare and horse that she mentions, I have had no knowledge whatever, nor of the cow and calf she says that he sold to her brother Tomas, but I will say also that she has in her possession two cows and one bull that I gave to my son-in-law and it appears it in his testament; and it is evident to me that my aforesaid ‘consuegra’ ate the said bull.  It is natural also that some of the said cows may have increased, as he has had them for some years.  I wills say, also that I have delivered to my said ‘consuegra’ one cart of corn which would make about fifteen sacks which was delivered by Andres Martin, a resident of this villa.  I have also delivered to her one fanega of frijoles, twelve strings of chile and seven weathers (carneros) by the hand of my said son-in-law.  I would have never thought of referring to the goods above mentioned and I still omit many small things that I could mentioned, had she not charged me for her son, my son-in-law, even with buckles, buttons and cartridges, and I am surprised that she does not claim even the shirt, stockings, etc, when she must know that it is the obligation of the parents to support and dress their children, and no one has ever heard of this being deducted from his legitimate inheritance, nor should she deprive his of his legitimate inheritance of his firearms which she mentions in her allegations, for in a country like this, surrounded by enemies, they must not be estimated as superfluous expenditures, but as very necessary and every prudent father must furnish his sons with firearms when they may become of an age to be able to handle them, and especially  here when everyone must be prepared for the service of his Majesty (May God Protect him) and the defense of his country.  With regard to the fund and new uniform, it was distributed in the funeral and Masses, both for himself and his son, and it was not sufficient to pay for the shroud, wax candles and debts, for this I, myself paid and is still due me.  Wherewith, I answer all allegations and charges made against me.  For my part, I charge her now with the eight months that my son-in-law served the king before his marriage to my daughter, which amounts to the sum of one hundred and ninety two pesos in silver, and was used by my ‘consuegra’ besides eighty-eight pesos, three reales and four granos more, which remained in his favor from what is called “the fund” after the death of her deceased husband, Nicolas Rael, and which were delivered to my ‘consuegra’ as it appears from his soldier’s book of memorandums; and it does not appear that my son-in-law inherited any of this, as he should have received one-half as the legitimate heir that he was, and it is now my daughter who represents the person of her son, Nicolas Rael.  I also charge her with fifty or more pesos in silver paid by my son-in-law to covered a debt contacted by his mother with her brother Josef Hortis (sic) for some goods he sold her on credit, besides seventeen pesos in silver for a piece of medium width unbleached muslin, which she took out of the house of her brother, and the other two which she owed for said debt, and I paid them as can be proven by the said don Josef Hortis, to whom I delivered them into his own hand.  This and much more I could say in defense of the right that assists me without any law being broken hereby which may favor widows, and  as these laws will be understood, if they have any right without lacking any justice in damage to a third party.  Furthermore, when this action was instituted, my said daughter had the same state.  Therefore, in view of the reasons of both parties and the greater weight of what I allege, I ask and request that your Honor be pleased to order that all the inheritance belonging to my son-in-law and now belonging to my daughter, as lawful heir of her son Nicolas, be delivered to me, as what I ask in justice, with costs and I swear whatever is necessary, etc.
            Diego Antonio Baca (Rubric)

In this capital villa of Santa Fe, on the 17th of June, 1782, I, don Manuel Garzia Pareja, having seen the answer given by don Diego Antonio Baca, for the purpose of continuing these proceedings, did order that it be referred for the second time to doña Teodora Ortiz, that she may answer the charges made by don Diego Antonio Baca.  I so decreed, ordered and signed with my assisting witnesses, with whom I act for want of a public or royal notary of which there is none in this kingdom. 
            Manuel Garzia Pareja (Rubric)
Witnesses:  Pablo de Sena (Rubric) and Julian de Armijo (Rubric)
They cover eight useful leaves and a plain blank one.

(To be continued)

Reference:  Spanish Archives of New Mexico, Series I, Twitchell 1207, Reel 6, Frames 662-686.
©Patricia Sanchez Rau

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