Reference: Spanish Archives of New Mexico, Series I,
Twitchell 1207, Reel 6, Frames 662-686.
©Patricia
Sanchez Rau
ARCHIVE 1207
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
No comments:
Post a Comment