Friday, November 21, 2014

Pablo Rael and his settlement of estate, Nicolas Rael's will ~ 1776

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


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

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

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