Reference: Spanish Archives of New Mexico, Series I,
Twitchell 1207, Reel 6, Frames 662-686.
©Patricia
Sanchez Rau
-continuation
Señor
Commissioner, don Manuel Garcia
Parexas (sic)
I,
Teodora Ortiz, widow, the defendant in these proceedings, answering the
petition presented by my opposing party, don
Diego Antonio Baca, do say: that neither virtual, actual, nor interpretive
surrender of property nor of any right which I may have to do it, should be
attached to me for not having opposed the clauses of the testaments, because we
women are ignorant of the points of law, and because the time when the
testaments are made, is not time for litigation, for the testator and justice
who acknowledge it should know their obligations; and if, because of not
knowing it, they should commit some error, no damage can devolve upon the
injured party; and the wives being present of the making of the testament, and
the husbands being present at those of the wives, they are sufficiently
suspicious because either love or fear or some other emotion can procure this
effect. My opposing party says that it
is not evident to him that I bought property to my marriage, let it pass for
ignorance. But to consider it
suppositious and imagined is a known injury for which I shall demand an apology
as soon as I may prove that it is true, not suppositious or imagined. If my deceased husband did not declare it in
his testament, it was probably a lack of understanding of these matters, and
not ignorance of having received it, for in this country, what the husband
received from his wife, he keeps and uses as his own, from which suits and
disturbances are originated every day, but I have stated that these faults will
not injure me, assuming the proof which I shall give in time. He also says that no law can deprive his
son-in-law and my own son, from one-half of the property which was acquired
during marriage and I have said so also, and do say it. But there is one by which my daughter-in-law-
may not be an heir of my son, her husband, except in the bequest which he
designates for her in the clause of his testaments, nor can she be the heir of
my grandson who died, and his inheritance must return to the principal, which I
am. Don Diego Antonio Baca, cannot
forgotten what happened to his father in a similar case, in the litigation
followed by contradictory judgment and definitive decision with the opinion of
the Assessor. They may be sufficient
answer for everything he alleges in regard to the inheritance. He also says that my son paid all the
servants who herd the cattle. He paid
one, and not in full, for the period of six months. The others, before and
after the death of my said son, I have paid and do pay. With regard to whether the property my son
took to his marriage is as much and as such as I stated in my first
answer. I cite the proofs that I shall
give in due time. I acknowledge that I
butchered and ate the bull that my son brought, but he did not collect any
cows, except the tenth part of one or two years which he did not claim, nor did
I pay. I received the cart of corn,
beans and one wether (carnero) which he sent me after the death of my son,
because four wethers (carneros) were sent to be by Sergeant Guerrero were on
account of my son and not on his, but in payment of rent for work of my oxen,
cart and servant who helped him in carrying the tithes until my son died, and
afterwards only the oxen, which are two yokes.
I do not know who made my ‘consuegro’ (father-in-law of my son) and
advisor of what parents must do with their children. For my part, I am obliged to him because I do
not have other children. He charges me
with the smallest trifles; with the salary for the eight months that my son
served as a soldier, prior to his marriage, as well as for the fund which my
deceased husband had when he died. I do
not have to answer the first charge, because as we resided together and the
expenses for provisions and other necessities were common, no charge should be
made to me. In regard to the second
charge, I will say that if the said fund should go in as community property,
only one-fourth part could pertain to my daughter-in-law and no more. With regard to the debt which he said that I
occasioned with my brother, don
Antonio Jose Ortiz, he is mistaken, because the one who caused the debt was my
son and no myself, although it is true that from the goods brought by my son,
he gave me three pairs of shoes, a silk handkerchief, two hoes, three pounds of
chocolate, three of sugar, eight varas of narrow unbleached muslin, one blanket
from Nexapa and a piece of unbleached muslin of two thirds width; to which
charge I answer what I have said in my first document, that is: I will prove that this was expended in
funeral, shroud and Masses, in accordance with the testament and payment of
debts and I will admit it in exoneration and not in any other manner. My opposing party having made all the charges
that he has been able to, and I mine, I ask and request your honor to come and
designate to us the period of proof, so that when the plaintiff has given those
favorable to him, I may give mine, because if any more copies are referred back
and forth, there will be more confusion and the time will be drawn out
excessively, for just to answer one has taken from the 30 May to the 17th
of June.
For
all of which, and all the rest which may be favorable to my right, I ask and
request that your Honor be pleased to decree and order as I have requested, as
it is justice and I swear in the best form that this is not of malice. I protest costs, which is necessary, etc.
Teodora
Ortiz (Rubric)
Santa
Fe, June 20, 1782
The
second answer given by doña Teodora
Ortiz, having been seen by me, don Manuel
Garcia Pareja, and attending to what she requests in the same, as Judge of
these proceedings I was obliged to order and did order that they may be
transferred to don Diego Antonio
Baca, who, having been fully informed concerning them, shall give the proofs
requested therein, within the period of six days, and shall return them to me
in order that I may give them the necessary decision. I so ordered and signed, together with my
assisting witnesses, to which I certify.
Manuel Garcia Pareja (Rubric)
Jues Receptor
Witnesses: Pablo Sena (Rubric)
Julian de Armijo (Rubric)
It
is on ten useful leaves.
To
the Señor Commissioner, Manuel Garcia Parejas
I,
Diego Antonio Baca, in the name of my daughter, Maria Barbara Baca, in
pursuance of the case which I follow in defense of my right against doña Teodora Ortiz, my “consuegra”
appear before your honor in the best form of law and say that in obedience to
the foregoing writ which I am required to answer the new allegations of my
“consuegra” within the period of six days, I will say, that basing my position
always as I must upon the clauses of the testament of Nicolas Rael, ‘consuegro’
and the husband of my aforementioned ‘consuegra’ and upon the one of Jose Pablo
Rael, my son-in-law and her son, who refers in the declaration of his property
to that mentioned in the testament of his father, Nicolas Rael, to which he
leaves to Nicolas Rael his and my daughter’s legitimate son; as heir; and being
certain as I have stated in the foregoing allegation that children are the
legitimate heirs of their parents and the parents of their children and that
only for want of parents should the grandparents inherit from the parents of
their grandchildren; and it being evident that from the marriage contracted by
my said son-in-law with my daughter that they had two children Ana Maria and
Nicolas, although the first one died prior to my son-in-law, her father and the
second one, called Nicolas survived him for about seven months, I will repeat
again that all the inheritance, after deducting one half of the property
acquired during the marriage of the grandfather and father, must devolve upon
said Nicolas, her grandchild and mine, he being the nearest descendant, and I
will never agree that this may return to his grandmother who supposes herself
to be the stock of the family instead of my daughter, his true mother, as the
most intimate and immediate ancestor.
What she says happened to don
Antonio Baca, my father, cannot injure the case; on the contrary, it is in my
favor, for don Juan Bautista
Bachicha, at the death of a son of his first marriage, inherited, as the
legitimate parent and most immediate ancestor, two hundred head of cattle and
household furniture, second, I will say that the testaments, have been made
with the formality, required by law, are the most authentic instruments which
must serve us for proofs of right in points of law and inheritance; and since
it does not appear from any clause that my said ‘consuegra’ brought to the
marriage the property that she mentions in her first answer, but rather her
deceased husband mentioned it all as his own property, I do her no injury
whatever in supposing that it is imagine, or if that is true that she brought
it, what did she spend it on? On things
of her pleasure and desire. Neither do I injure her in saying that the virtual
surrender of (her) right may be resumed because she was present and failed to
make an claim or protest, even though she could see that her rights were in
jeopardy; nor will it serve her as a defense to allege ignorance, for in
matters so obvious and clear, (the idea) would occur to anyone of limited
mental capacity, as everyone knows that the dowry or paraphernalia brought by
women to the marriage is the first thing declared and must be taken out of the
bulk of the estate, as it is the property and profit of the wives, and when it
did not occur to my said ‘consuegra”, it would have occurred to her deceased
husband, or to the Judge or witnesses who assisted in the execution of the
testament, therefore, it must be inferred that she did not bring any property,
or that she expended it voluntarily, making donation thereof. With regard to what she says about the time
in which the testaments are made not being the time for litigation, I answer
that although it is not the time to litigate judicially, it is the most
opportune time to make declarations, protests and administrations of things
that may be conducive to the welfare of the soul of the testator and to avoid
disputes and litigations in the future, for to avoid all this making of the
testaments was wisely ordered.
Third,
I will say that since it appears in the testament that Bartolome Lovato was
indebted for twenty-six pesos of the products of the land which had to be
deducted from his service, the payment of the service is prove, although I do
not know the length of time for which he paid it. Two heifers and a bull also appear in the
testament of my son-in-law, which he declares were with the original herd of
cattle, and he ordered the same to be separated, which I said in my prior
petition I delivers to my said ‘consuegra’ through my son-in-law.
Fourth,
I say that in charging me with the property that her son, my son-in-law brought
to his marriage, I, with greater right am compelled to charge her with one hundred
ninety pesos in silver earned by my son-in-law during the eight months that he
served as a soldier to the king, as these are her son’s own property nobody
else having any dominion or right to them as they are military property, and he
could well have repaid them with what his mother says he brought into the
marriage.
Fifth,
I will say that it is true that I delivered the cart of corn, beans and seven
wethers (carneros) and the freight is paid, she took advantage of my oxen to do
her plants. Without __edding with the four wethers (carneros)
that she says were delivered to her by Sgt. Guerrero, I say to her charging me
with buckles, buttons, cartridges, firearms, etc, that it is the obligation of
parents to support and dress their children, etc. and the necessary
expenditures should not enter into the discount of the inheritance of my
son-in-law. There is no reason for my
aforesaid ‘consuegra’ to answer with courteous words, treating me as a counselor,
and saying that for her part she tenders me her gratitude. Said words sound in one and signify something
in the manner in which they are said.
They seem to be words of praise; but they are known as contempt for
which she must give me the satisfaction corresponding to my honor and good
procedure, because she did not need to use insulting words nor evil motives, in
order to defend her right. In regard to
the fund of her deceased husband, I do not conform to the fourth part, for when
property acquired during marriage is estimated, only one half can belong to my
said ‘consuegra’ and the other half comes by right to my son-in-law Jose Pablo
and from him to his son and from his son to my daughter, who are the legitimate
heirs and all succeed to them directly.
Sixth,
I will say that with regard to the debt which she caused with her brother, don Antonio Jose Hortiz, and which I
charged her in my prior petition, I did not suffer the slight misapprehension,
but it is a manifested truth that she caused it as her own brother could
state. From the eighty-two pesos which
was the total amount, my said son-in-law took to my daughter only three pairs
of shoes, four pounds of chocolate, one silk handkerchief, eight cones of maple
sugar and two and one half varas of plush for a suit for my son-in-law. With regard to what belongs to the fund which
my son-in-law left after his death, I will answer in the first place that all
of it belongs to his son and his wife, and in the second place I will say that
form the same I delivered to the Reverend Father Chaplain of this garrison twenty-two
pesos for the funeral, also six pesos for four pounds of wax which Father gave
me for the funeral and ten pesos more which I also delivered for the ten Masses
which he requested in his testament, which amounts to thirty-eight pesos;
further more twenty-five pesos in silver that she mentioned, I delivered to
Father Fray Juan Llanos for the funeral of my grandson; and seven pesos four
reales more which I paid to the said priest for the wax and seventeen pesos in
silver that I mentioned in the foregoing allegation which I delivered to her
brother Antonio Jose Hortiz, besides four pesos that I gave to Bernardo
Bustamante for a debt contracted by my deceased son-in-law, which, with
four pesos more I paid to don
Jose Maria Cordero, totals ninety five pesos in silver.
Therefore,
all the charges that my said ‘consuegra’ has been able to make are answered;
and now for my part I will charge her with a serge dress pattern which at the
request of my son-in-law was loaned to her by doña Maria Ignacia Lucero, my deceased mother-in-law, and that it
is on record in her testament, that it shall be recovered and given for Masses
and I as executor, must recover it and execute her pious will. I also charge her with all the household
furniture left by her deceased husband; also the debts in his favor which he
declared in his testament. It is evident
to me that some of them have been collected, from all of which, one half should
have been received by my son-in-law as the legitimate heir and now by my
daughter as the heir of her son Nicolas.
I also paid to Francisco Chabes four varas of wide unbleached muslin for
some varas of native woven cloth (sabanilla) that my son-in-law brought for his
mother, and because the testament of Nicolas Rael, my ‘consuegro’ agrees with
my right for the justification of what assists me should be attached to these
proceedings. Therefore I ask and request
that your Honor be pleased to so provide and order, and after this proceeding
has been finished that you demand of my said ‘consuegra’ one half of all the
estate, which she should deliver to my daughter Maria Barbara Baca, as the
legitimate heir of her son, Nicolas without admitting any new charges to avoid
greater confusion, for what I request is justice with costs and I swear what is
necessary.
Furthermore,
I have not answered the first answer any sooner because no period of time was
designated to me, and it was delayed by this time by permission of the Jues
Receptor, on account of my necessary occupation.
Diego Antonio Baca (Rubric)
The
third document presented by the plaintiff, don
Diego Antonio Baca, having been examined by me, don Manuel Garzia Pareja, Jues Receptor, of these proceedings,
mindful of that which he requests in writing, I was obliged to order and did
order doña Teodora Ortiz, on account
of the forgoing instrument, to allege that which may be favorable to her right
and exhibit the testament of her deceased husband don Nicolas Rael, in order to attach it to these proceedings. I so decreed, ordered and signed, acting with
my assistance to which I certify.
Manuel Garzia Pareja (Rubric)
Juez Receptor (Receiving Judge)
Witnesses: Julian de Armijo (Rubric) and Pablo Sena
(Rubric)
Señor
Commissioner, don Manuel Garcia
Parejas
I,
Teodora Ortiz, widow, the defendant in these proceeding appear before your
Honor in the most proper form and say:
That your Honor should be pleased to order by ‘consuegro’ don Diego Antonio Baca, to exhibit the
copy of the testament of my deceased husband, Nicolas Rael, as it is in his
possession as is evident to your Honor who had it in your hands, and my
‘consuegro’ sent to my house to ask for it, in order to make the one of my son
Jose Pablo, by it, and I in person brought it to his house. I sent for it after the death of my son, and
he answered that he did not have such testament and until the same may come
into my possession I will not make any answer to the charges that he makes and
afterwards I will answer all the charges and give the proofs which I have
mentioned.
For
all of which I ask and request your Honor, to be pleased to do and order as I
have requested, and I swear it is not from malice, but necessary, etc.
Teodora
Ortiz (Rubric)
Villa
of Santa Fe, Jun 27, 1782
The
foregoing petition as presented, having been examined by men, don Manuel Garzia Pareja, as Judge in
these proceedings, I was obliged to order and id order don Diego Antonio Baca to present the copy of the said testament,
for it is evident to me that it is true that he had it in his possession. I so decreed, ordered and signed, acting by
appointment with those who assist me; to all of which I certify.
Manuel Garzia Pareja (Rubric)
Juez Receptor
Witnesses: Julian Armijo (Rubric) and Pablo de Sena
(Rubric)
Señor
Juez Receptor, don Manuel Garzia
Parejas
Diego
Antonio Baca, having seen the writ which you as commissioned judge, sent to me
to answer, which was sent forth by doña
Teodora Ortiz, in which she says that I should manifest or present the copy of
the testament of don Nicolas Rael,
charging that I sent for it at the time her son made his will, and I Diego
Antonio say that it is untrue that I requested, as her own son was the one who sent for it and said
Teodora personally brought it and left the said copy at my house. I did not need nor use the said copy and what
I ask and have requested is the original, and that said original be attached to
these proceedings. I deliver herewith
the copy requested by doña Teodora
Ortiz and ordered by you. Although, in
her allegations she said the copy was requested as a model for the testament
made by Jose Pablo, he did not conform to it because it was not entirely
complete. This is what I ask of your
Honor and request that you pleased to do as I have requested, and I swear that
it is not from malice, but necessary withal.
Diego Antonio Baca (Rubric)
Villa
of Santa Fe, June 28, 1782
On
this said, day, month and year, don
Diego Antonio Baca, having presented the copy of the testament requested by doña Teodora Ortiz, I delivered it to
the said doña Teodora Ortiz; and in
consideration of what don Diego
Antonio Baca requests in regard to the original of the said testament, I, as
Jues Receptor, was obliged to order and did order the said Señora doña Teodora to take it out and manifest
the said original for the purpose of concluding these proceedings. I so decreed, ordered and signed with those
who assist me; to which I certify.
Manuel Garzia Pareja (Rubric)
Jues Receptor
Witnesses: Julian de Armijo (Rubric) and Pablo Sena
(Rubric)
Presented
between the lines is valid.
Page
24 of the archive
WILL OF NICOLAS
RAEL
Know
all you who may see this letter, that I Nicolas Rael, corporal of this royal
garrison of Santa Fe, finding myself ill in bed and in my sound mind; if God
our Lord should be pleased to take me unto himself, I order my testament in the
following manner:
First: I believe in the ineffable mystery of the
most Blessed Trinity, God the Father, God the Son and God the Holy Ghost, three
distinct persons and only one true God.
I believe that the second person, who is God the Son, was made flesh in
the most pure womb of the Most Blessed Mary.
I believe that he suffered death and passion 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. I believe, finally,
everything that our holy mother Catholic Church believes and confesses and in
this faith and belief I want to live and die.
Item: I declare that if God should remember me, I
commend my soul to God who created it and redeemed it.
Item: I order my body to the earth and that it be
buried at the foot of the altar of the souls, with the shroud of my father
Saint Francis, and a funeral according to regulations in the parish church of
this villa.
Item: I order that forty Masses be said for the
welfare of my soul.
Item: I bequeath two reales of the land to each one
of the forced legacies (mandas forzosas).
Item: I declare that I was married according to the
rites of the Church to doña Teodora
Ortiz, and we have been married for the period of twenty-one years, during
which matrimony, we have had two children; the first one died immediately after
she was born and her name was Theresa de Jesus.
The second named Joseph Pablo is nineteen years old.
Item: I declare as my property, the equipment with
which I serve the king, which consists of seven horses, one mule, a gun,
pistols, a sword, a lance, leather jacket, saddle and one stirrup.
Item: I declare as my property, my house of
residence with a portion of land that is contiguous to it, which will be
recognized by its instrument.
Item: I declare as my property, the clothing which
I use, trousers, jacket, cloak and hat.
Item: I declare that I have five horses and one
more male mule of the troops.
Item: I declare as my property forty head of
cattle, eight oxen, and one burro, fully equipped.
Item: I declare that Fernando Ulibarri, resident of
this villa is indebted to me for one half of an arroba (an arroba is equal to
25 lbs) of fine chocolate, a loaf of sugar which weighs one arroba, and six
varas of Spanish ribbon, two work hats, eight dishes from the pueblo.
Item: I declare that Santiago Saiz, resident of the
local of Pajarito, owes me two hundred ewes with the shares of their issue for
four years.
Item: I declare that Juan Gonzales, resident of
Alameda owes me sixty wethers (carneros)
Item: I declare that Antonio Joseph Lopez owes me
fifteen pesos of the land in goods, I order them collected.
Item: I order and declare as my executor and
guardian of my property, my wife doña
Teodora Ortiz, that she may fulfill this, my testament, and that this, my last
will, may have the validity required, I requested the second Sergeant of this
Royal Garrison, Salbador Rivera, to authorize it. And I said Sergeant, by the authority conferred
upon me by the Señor don Pedro Fermin
de Mendinueta of the Order of Saint James, Colonel of the Royal Armies,
Governor and Captain General of this kingdom, did sanction it, acting with two
assisting witnesses; and the grantor signed it with me, in this villa of Santa
Fe on the twenty-fifth day of December of the year of one thousand seven
hundred and seventy-six.
Nicolas
Rael
Salbador
Rivera
Witnesses: Cayetano Unanue
Diego
Antonio de la Peña
Antonio
Jose Ortiz (Rubric)
NOTE: There is no conclusion to the law suit.
Reference: Spanish Archives of New Mexico, Series I,
Twitchell 1207, Reel 6, Frames 662-686.
©Patricia
Sanchez Rau
No comments:
Post a Comment