I GENERAL LIBRARY UdO University of Mi'chigan dPresentcd by 19O I I I L AI S (1 l..a. Il-1 ( ) I I( ():\ND ItE I TJ I I T 'I MES. WAR DEPARTMENT, )DIVISION OF (CIUS'rO'MS AN]) INSULIAR AFFAIRS, 1 99. -VOI-CLTE.TISEE I \\.ASI1NT(( )N: (}VE-E.!,;NT PIRINTIN( OFFICE. 1 899. : a; I CONTENTS-VOLUME I. / Civil code for Cuba, Puerto Rico, and the Philippines. (~ Code of commerce in force in Cuba, Puerto Rico, and the Philippines, including the commercial registry regulations, exchange regulations, and other provisions of a similar character. Constitution establishing self-government in the islands of Cuba and Puerto Rico, promulgated November 25, 1897. 4 Municipal and provincial laws in force in the island of Cuba. Provincial and municipal laws of Puerto Rico. ~ Laws relating to the civil administration and government of the island of Puerto Rico. 7 Electoral law for the election of councilors and provincial deputies in Puerto Rico. Adaptation of the electoral lam1 of June 26, 1890, to the islands of Cuba and Puerto Rico. III TRANSLATION OF THE CIVIL CODE IN FORCE IN CUBA, PORTO RICO, AND THE PHILIPPINES. DIVISION OF CUSTOMS AND INSULAR AFFAIRS. WAR DEPARTMENT. October, 1899. WASHINGTON. GOVERNMENT PRINTING OFFICE. 1899. TABLE OF CONTENTS. Page Royal Decree.............................................................. CIVIL CODE. Preliminary Title. Laws, their effect, and general rules for their application. 6 Book First. Persons................................................... 7 Title I. Spaniards and foreigners................................... 7 Title II. Birth and extinction of civil personality........................ 9 Chapter First. Natural persons...................................... 9 Chapter Second. Judicial persons.................................. 9 Title III. Domicile..................................................... 10 Title IV. Marriage...................................................... 10 Chapter First. General provisions.......................... 10 Section First. Forms of marriage...... -............ 10 Section Second. Provisions common to both forms of marriage... 11 Section Third. Proof of marriage............................... 13 Section Fourth. Rights and obligations of husband and wife.... 13 Section Fifth. Effects of annulment of marriage and divorce.. 14 Chapter Second. Canonical marriage............................16 Chapter Third. Civil marriage..............17 Section First. Capacity of the contracting parties............. 17 Section Second. Celebration of marriage.................... 18 Section Third. Annulment of marriage.......................... 20 Section Fourth. Divorce.......................... 21 Title V. Paternity and filiation......-..-................. 22 Chapter First. Legitimate children.................... 22 Chapter Second. Proofs of the filiation of legitimate children...... 23 Chapter Third. Legitimized children.................... 23 Chapter Fourth. Illegitimate children...................... 24 Section First. Acknowledgment of natural children........ 24 Section Second. Other illegitimate children........... 25 Title VI. The support of relations........................... 26 Title VII. The parental authority.......................28 Chapter First. General provisions........................... 28 Chapter Second. Effects of parental authority with regard to the persons of the children............................................... 28 Chapter Third. Effects of parental authority with regard to the property of the children..................-............... 29 Chapter Fourth. Manner of termination of the parental authority... 30 Chapter Fifth. Adoption........................................ 31 Title VIII. Absence................ —........-...-..... -.. 32 Chapter First. Provisional measures in cases of absence............ 32 Chapter Second. Declarations of absence................... 32 Chapter Third. Administration of the property of an absentee....... 33 Chapter Fourth. Presumption of the death of an absentee........ 33 Chapter Fifth. Effects of absence upon the eventual rights of the absentee.......-.....34 Title IX. Guardianship.................................................. 34 Chapter First. General provisions..................... 34 Chapter Second. Testamentary guardianship....... 35 Chapter Third. Legitimate guardianship...................... 36 Section First. Guardianship of minors..................... 36 Section Second. Guardianship of the insane and of the deaf and dumb.................................................... 36 Section Third. Guardianship of prodigals......... 37 Section Fourth. Guardianship of persons suffering interdiction... 38 Chapter Fourth. Guardianship by appointment.................. 38 Chapter Fifth. Protutors........................................... 39 Chapter Sixth. Persons disqualified to be guardians and protutors and removal of the same..3................................. 39! TABLE OF CONTENTS. Book First. Persons-Continued. Page. Title IX. Guardianship-Continued. Chapter Seventh. Excuses tor not accepting guardianship and protutorship........................................................ 41 Chapter Eighth. Bonds of guardians................................. 42 Chapter Ninth. Exercise of guardianship............................ 43 Chapter Tenth. Accounts of the guardianship....................... 46 Chapter Eleventh. Registration of guardianships.................... 47 Title X. The family council. ---........................................... 48 Section First. Manner of constituting the family council......... 48 Section Second. Method of procedure by the family council -—... --- 49 Title XI. Emancipation and majority.................................... 50 Chapter First. Emancipation....................................... 50 Chapter Second. Majority..-......................................... 51 Title XII. Registry of civil status......-................. 51 Book Second. Property, ownership, and its modifications.................... 53 Title I. Classification of property............... --—....................... 53 Chapter First. Real property....-.................................... 53 Chapter Second. Personal property................................ 54 Chapter Third. Property with regard to ownership................ 54 Title II. Ownership...................................................... 55 Chapter First. Ownership in general............................... 55 Chapter Second. Right of accession............................... 56 Section First. Right of accession with regard to the production of property................................................. 56 Section Second. Rights of accession with regard to real property.. 56 Section Third. Right of accession with regard to personal property. 58 Chapter Third. Surveys and demarcations........................... 60 Chapter Fourth. Right of inclosing agricultural property........... 60 Chapter Fifth. Unstable buildings and trees about to fall............ 60 Title III. Community of property....................................... 60 Title IV. Some special properties...........................62 Chapter First. Waters.............................................. 62 Section First. Ownership of waters............................. 62 Section Second. Use of public waters............................ 63 Section Third. Use of waters of private ownership...64 Section Fourth. Subterranean waters........................... 64 Section Fifth. General provisions............................... 64 Chapter Second. Minerals.-.......................................... 65 Chapter Third. Intellectual property........................ 65 Title V. Possession —.. —.-..-........ ----........... —.-.- 65 Chapter First. Possession and its kinds.............................. 65 Chapter Second. Acquisition of possession.......................... 66 Chapter Third. Effects of possession................................ 67 Title VI. Usufruct, use, and occupancy -—.. —. --- —.-.. ---. ---.,........ 69 Chapter First. Usufruct............................................. 69 Section First. Usufruct in general............ 69 Section Second. Rights of the usufructuary..................... 70 Section Third. Obligations of the usufructuary.................. 72 Section Fourth. Ways of extinguishing a usufruct............... 76 Chapter Second. Use and occupancy................................. 77 Title VII. Easements................................................... 78 Chapter First. Easements in general................................ 78 Section First. Different kinds of easements which may be established on estates.-..-. --- —................-................ - 78 Section Second. Manner of acquiring easements................. 79 Section Third. Rignts and obligations of owners of dominant and servient estates-............................................... 79 Section Fourth. Ways of extinguishing easements............... 80 Chapter Second. Legal easements............................ 81 Section First. General provisions................. --- —--- 81 Section Second. Easements with regard to waters.......... ---.. 81 Section Third. Right of way-................................. 82 Section Fourth. Easements of party walls and fences......... — 83 Section Fifth. Easement of.light and view...................... 85 Section Sixth. Drainage of buildings................ 86 Section Seventh. Intermediate distances and works for certain constructions and plantings................................... 86 Chapter Third. Voluntary easements......................... 87 Title VIII. The registry of property............................... 88 TABLE OF CONTENTS. III Page. Book Third. Different ways of acquiring ownership........................ 89 Preliminary provision..................................................... 89 Title I. Retention....................................................... 89 Title 11. Gifts- -........................................................... 90 Chapter First. Nature of gifts.. —.... —.. —............. 90 Chapter Second. Persons who can bestow or receive gifts............ 91 Chapter Third. Effects and limitations of gifts.. --- —.. —........... 91 Chapter Fourth. Revocation and reduction of gifts.................. 93 Title III. Successions —general provisions... —.......-........... 94 Chapter First. Wills --—.... ---.......-. —.. —..... —.-. ----...-. 95 Section First. Capacity to depose by will....................... 95 Section Second. Wills in general.- --—. --- ——. --- —- 95 Section Third. Form of wills..-....-.......-.....-..-........... 96 Section Fourth. Holographic wills 1-. —.,-.-..-. —. —. ----. ---.. 97 Section Fifth. Open wills —.. ----... —.......... —........... 98 Section Sixth. Closed wills -1......-... ---..... ---- ---- —.-..... 100 Section Seventh. Military wills.-..,....-......-.-......-....... 102 Section Eighth. Maritime wills.-.-.... ---..-.............. 103 Section Ninth. Wills made in foreign countries.................. 105 Section Tenth. Revocation and inefficiency of wills.............. 105 Chapter Second. Inheritances - -—................ —.................. 106 Section First. Capacity to succeed by will aund in the absence thereof..................................... 106 Section Second. Designation of heirship................ 109 Section Third. Substitution..................................... 110 Section Fourth. Designation of heirs; and conditional legacies or for a term..-................................................ 112 Section Fifth. Legal portions..-................................. 113 Section Sixth. Betterments (omejoras)......-........... ---.. 116 Section Seventh. Rights of the surviving spouse................ 117 Section Eighth. Rights of illegitimate children.. ----............ 118 Section Ninth. Disinheritance.. —............................... 118 Section Tenth. Legacies and bequests. ---...... ---.............. 120 Section Eleventh. Executors... --- —..... —...................... 124 Chapter Third. Intestate succession. —.......-... —.................. 126 Section First. General provisions............................... 126 Section Second. Relationship................................... 126 Section Third. Representation.. ---..................... 127 Chapter Fourth. Order of succession according to diversity of lines. - 128 Section First. Descending direct line............................ 128 Section Second. Ascending direct line..-........-........ 128 Section Third. Acknowledged natural children..........-........ 129 Section Fourth. Successions of collaterals and of spouses. —..... 129 Section Fifth. Snccession by the State........................... 130 Chapter Fifth. Provisions common to inheritance by or without will. 130 Section First. Precautions to be adopted when the widow remains pregnant..-.....-.-.. --- —.................................... 130 Section Second. Property to be set apart........................ 131 Section Third. The right of accretion............................ 133 Section Fourth. Acceptance and repudiation of the inheritance. 134 Section Fifth. Benefit of inventory and right to deliberate ----.. 136 Chapter Sixth. Collation and division............................... 139 Section First. Collation......................................... 139 Section Second. Division ---- -..-......-..-.................... 141 Section Third. Effects of division................................ 142 Section Fourth. Rescission of the division....................... 143 Section Fifth. Payment of hereditary debts..................... 144 Book Fourth. Obligations and contracts..................................... 145 Title I. Obligations-..................................................... 145 Chapter First. General provisions................................... 145 Chapter Second. Nature and effects of obligations.................. 145 Chapter Third. Different kinds of obligations....................... 147 Section First. Pure and conditional obligations.................. 147 Section Second. Obligations with definite periods................ 149 Section Third. Alternative obligations.......................... 150 Section Fourth. Several and joint obligations................... 151 Section Fifth. Divisible and indivisible obligations.............. 152 Section Sixth. Obligations with a penal clause.................. 153 IV TABLE OF CONTENTS. Book Fourth. Obligations and contracts-Continued. Page. Title I. Obligations-Continued. Chapter Fourth. Extinction of obligations-general provisions....... 153 Section First. Payment........................ 153 Application of payments.-................................. 155 Payment by assignment of property...................... 155 Tender of payment and consignation........................ 155 Section Second. Loss of the thing due........................... 156 Section Third. Remission of debts............................... 156 Section Fourth. Confusion of rights............................. 157 Section Fifth. Compensation.................................. 157 Section Sixth. Novation.........................-............. 158 Chapter Fifth. Proof of obligations-general provisions........... 159 Section First. Public instruments............................... 159 Private instruments............................... 160 Section Second. Confession...............-................ 161 Section Third. Personal inspection by the judge............ 162 Section Fourth. Expert evidence................................ 162 Section Fifth. Evidence of witnesses................. 162 Section Sixth. Prescriptions.................................. 163 Title II. Contracts............................................. 164 Chapter First. General provisions............................... 164 Chapter Second. Essential requisites for the validity of contracts.... 164 Section First. Consent........................................... 165 Section Second. Objects of contracts............................ 166 Section Third. Consideration of contracts....................... 166 Chapter Third. Effectiveness of contracts........................... 166 Chapter Fourth. Interpretation of contracts........................ 167 Chapter Fifth. Rescission of contracts............................. 168 Chapter Sixth. Nullity of contracts............................... 169 Title III. Contracts relating to property by reason of marriage......... 171 Chapter First. General provisions................................... 171 Chapter Second. Gifts by reason of marriage............... 173 Chapter Third. Dowry.............................................. 174 Section First. The creation and guarantee of dowry......... 174 Section Second. Administration and usufruct of the dowry...... 177 Section Third. Restitution of the dowry.................... 178 Chapter Fourth. Paraplernal property...... -...................... 180 Chapter Fifth. Conjugal partnership................................ 181 Section First. General provisions....................... 181 Section Second. Property belonging to each of the spouses...... 181 Section Third. Property of the conjugal partnership.... 182 Section Fourth. Charges and obligations of the conjugal partnership.......................................................... 183 ship L-~~~~~~~-~ --- —~~~.~~~II~~~~~~~ ----. ~ ~~~183 Section Fifth. Administration of the conjugal partnership....... 184 Section Sixth. Dissolution of the conjugal partnership.......... 184 Section Seventh. Liquidation of the property of the conjugal partnership................................................... 184 Chapter Sixth. Separation of the property of the spouses and its administration by the wife during the marriage................ 186 General provisions............................................. 188 Title IV. Contract of purchase and sale.......................... 188 Chapter First. Nature and form of this contract..................... 188 Chapter Second. Capacity to purchase or sell.................... 190 Chapter Third. Effects of the contract of purchase and sale when the thing sold has been lost...................................... 190 Chapter Fourth. Obligations of the vendor......................... 191 Section First. General provisions................................ 191 Section Second. Delivery of the thing sold...................... 191 Section Third. Warranty.................... -193 ~1. Warranty in case of eviction............................ 193 ~2. Warranty against hidden defects of or burdens on the thing sold............................................ 194 Chapter Fifth. Obligations of the vendee....................... 196 Chapter Sixth. Rescission of the sale......................... 197 Section First. Conditional redemption.......................... 197 Section Second. Legal redemption......................... 199 Chapter Seventh. Assignments of credits and other incorporeal rights............................................................ 199 Chapter Eighth. General provision.................................. 200 TABLE OF CONTENTS. V Book Fourth. Obligations and contracts-Continued. Page. Title V. Exchange...................................................... 201 Title VI. Contracts of lease............................................. 201 Chapter lirst. General provisions................................... 201 Chapter Second. Leases of rural and town property................. 201 Section First. General provisions............................... 201 Section Second. Rights and obligations of the lessor and lessee.. 202 Section Third. Special provisions for leases of rural property... 204 Chapter Third. Hiring of work and services......................... 205 Section First. Services of paid servants and laborers........... 205 Section Second. Works at a price agreed upon or for a lump sum. 206 Section Third. Transportation by water and land of persons as well as of things............................................. 207 Title VII. Annuities (censos).................................. 208 Chapter First. General provisions................................... 208 Chapter Second. Emphyteutic annuities............................ 211 Section First. Provisions referring to emphyteusis............... 211 Section Second. Special annuities (foros) and other contracts analogous to that of emphyteusis.............................. 214 Chapter Third. Transferable annuities (censos consignativos).... 215 Chapter Fourth. Reservative annuities.............................. 216 Title VIII. Partnership................................................. 216 Chapter First. General provisions................................... 216 Chapter Second. Obligations of partners............................ 217 Section First. Obligations of the partners among themselves.... 217 Section Second. Obligations of partners with regard to third persons.......................................................... 220 Chapter Third. Manners of dissolving partnership............ 221 Title IX. Agency........................................... 222 Chapter First. Character, form, and kinds of agency................ 2212 Chapter Second. Obligations of the agent............................223 Chapter Third. Obligations of the principal......................... 224 Chapter Fourth. Manner of terminating the agency............ 224 Title X. Loans-general provisions...................................... 225 Chapter First. Commodatnm........................................ 225 Section First. Nature of commodatum.................. 225 Section Second. Obligations of the bailee........................ 226 Section Third. Obligations of the bailor........................ 226 Chapter Second. Simple loan........................................ 227 Title XI. Depositum................................................. 227 Chapter First. Depositum in general and its different kinds......... 227 Chapter Second. Depositum properly speaking...................... 227 Section First. Nature and essence of the contract of depositum.. 227 Section Second. Voluntary depositum........................... 227 Section Third. Obligations of the bailee........................ 228 Section Fourth. Obligations of the bailor........................ 229 Section Fifth. Necessary depositum............................. 229 Chapter Third. Sequestration....................................... 230 Title XII. Aleatory contracts or those depending on chance.............. 230 Chapter First. General provisions................................... 230 Chapter Second. Insurance contracts................................. 23 Chapter Third. Gambling and betting.............................. 231 ChapterFourth. Life annuities.......................... 232 Title XIII. Compromises and arbitrations.......... 233 Chapter First. Compromises........................................ 233 Chapter Second. Arbitration........................................ 234 Title XIV. Security.................................................... 234 Chapter First. Nature and extent of security........................ 234 Chapter Second. Effects of security................................. 235 Section First. Effects of security between surety and creditor... 235 Section Second. Effects of security between the debtor and the surety.................................................... 236 Section Third. Effects of security as between the cosureties...... 237 Chapter Third. Extinguishment of security......................... 237 Chapter Fourth. Legal and judicial security........................ 238 Title XV. Contracts of pledge, mortgage, and antichresis................ 238 Chapter First. Provisions common to pledge and mortgage.......... 238 Chapter Second. Pledge..................................... 239 Chapter Third. Mortgage........................................... 240 Chapter Fourth. Antichresis........................................ 241 VI TABLE OF CONTENTS. Book Fourth. Obligations and contracts-Continued. Page. Title XVI. Obligations contracted without agreement................... 242 Chapter First. Quasi contracts........... 242 Section First. Management of another's business........ 242 Section Second. Collection of what is not due.......... 243 Chapter Second. Obligations which arise from fault or negligence 211 Title XVII. Concurrence and preference of credits.. —.... ---..-.. 245 Chapter First. General provisions ---—.............. ---. 245 Chapter Second. Classification of credits............................ 246 Chapter Third. Priority of payment of credits ---.........-..-. 248 Title XVIII. Prescription.-......................-......-.... 249 Chapter First. General provisions.-...................... 249 Chapter second. Prescription of ownership and of other property rights............................................................. 250 Chapter Third. Prescription of actions......................... 252 Final provisions............... 254 Transitory provisions.......................................... 254 Additional provisions -—..... ----...... ---. ----. --- 256 Appendix I. Requisites or formalities necessary before consent by the family council to contract marriage may be given..-............................... 259 Appendix II. Record of canonical marriage in the civil registry... 260 Appendix III. Before whom and how opposition to marriage shall be made.. 266 Appendix IV. Preliminary proceedings in trials for divorce or annulment of civil marriages...................................................... 267 Appendix V. Rules containing the modifications which may be considered indispensable in proceedings relating to guardianship in accordance with the provisions of the code.................................................... 269 Appendix VI. Alienation, incumbrance, etc., of property of minors....... 271 Appendix VII. Method of procedure of the family council..................... 273 ROYAL DECREE. At the suggestion of the colonial secretary, in accordance with tlhe council of secretaries, etc., I hereby decree the following: ARTICLE 1. The Civil Code now in force in the Peninsula, drafted in accordance with the provisions of the law of May 11, 1888, and approved by royal decree of the 24th instant, is hereby extended to the islands of Cuba, Porto Rico, and the Philippines. ART. 2. This Code shall go into effect in the said islands twenty days after its publication in the official newspapers of the same. ART. 3. In accordance with the provisions of article 1 of the said Code, the laws shall go into effect in the colonial provinces twenty days after their promulgation, it being understood that this shall be the day on which their publication in the official newspapers of the islands shall end. Given at San Ildefonso, July 31, 1889. MARfA CRISTINA. MANUEL BECERRA, Colonial Secretary. 3 1 CIVIL CODE. PRELIMINARY TITLE. LAWS, THEIR EFFECT, AND GENERAL RULES FOR THEIR APPLICATION. ARTICLE 1. Laws shall be binding in the Peninsula, in the adjacent islands, in the Canaries, and in the territory of Africa, which is subject to Peninsular legislation, twenty days after their promulgation, if not otherwise provided therein. The promulgation shall be understood as having taken place the day of the termination of the publication of the law in the Gaceta. ARiT. 2. Ignorance of the law does not excuse from compliance therewith. ART. 3. Laws shall not have a retroactive effect unless otherwise prescribed therein. ART. 4. Acts executed against the provisions of law are void, excepting the cases in which said law orders their validity. Rights granted by the laws may be renounced, provided this renunciation is not contrary to public interest or public order, or to the prejudice of a third person. ART. 5. Laws are repealed only by other subsequent laws, and disuse or any custom or practice to the contrary shall not prevail against their observance. ART. 6. Any tribunal which refuses to render judgment on the pretext of silence, obscurity, or insufficiency of the laws shall incur liability therefor. When there is no law exactly applicable to the point in controversy, the customs of the place shall be observed, and, in the absence thereof, the general principles of law. ART. 7. If in the laws months, days, or nights are referred to, it shall be understood that the months are of thirty days, the days of twenty-four hours, and the nights from the setting to the rising of the sun. If the months are indicated by their names, they shall be computed by their actual number of days. ART. 8. Penal laws, police laws, and those of public security are binding on all those who reside in Spanish territory. ART. 9. The laws relating to family rights and obligations, or to the status, condition, and legal capacity of persons, obligate Spaniards even though they reside in a foreign country. ART. 10. Personal property is subject to the laws of the nation of the 5 6 owner thereof; real property to the laws of the country in which it is situated. However, legal and testamentary successions, with regard to the order of succession, as well as to the amount of the successional rights and to the intrinsic validity of their provisions, shall be regulated by the laws of the nation of the person whose succession is in question, whatever may be the nature of the property and the country where it may be situate. Biscayans, even though they reside in towns, shall continue subject, with regard to the property they possess in the level lands, to law 15, title 20, of the Fuero de Vizcaya. ART. 11. The forms and solemnities of contracts, wills, and other public instruments are governed by the laws of the country in which they are executed. When said instruments are authenticated by diplomatic or consular officials of Spain abroad, the formalities required by Spanish laws for their execution shall be observed. Notwithstanding the provisions of this and of the preceding article, prohibitive laws concerning persons, their acts or property, and those which relate to the public order and to good morals, shall not remain without effect by virtue of laws issued or judgments rendered, or by regulations made or conventions agreed upon in a foreign country. ART. 12. The provisions of this title, in so far as they determine the effects of the laws, statutes, and general rules for their application, are binding inl all the provinces of the Kingdom, as well as the provisions contained in title 4, book 1. In all other matters the provinces and territories in which the law of the forum is in force shall preserve it for the present, no change being made in their actual judicial administration, whether written or customary, by the publication of this code, whlich shall be enforced only as a supplementary law in the absence of that which is such by their special laws. ART. 13. Notwithstanding the provisions of the foregoing article, this code shall go into effect in Aragon and in the Balearic Islands at the same time as inl the provinces not under the law of the forum, in so far as not conflicting with those provisions of the forum or customary ones which are actually in force. ART. 14. In accordance with the provisions of article 12, those of articles 9, 10, and 11, with regard to persons, acts, and property of Spaniards abroad and that of foreigners in Spain, are applicable to persons, acts, and property of Spaniards in territories or provinces having different civil legislation. ART. 15. Family rights and duties, those relating to the status, condition, and legal capacity of persons, and those of testamentary or intestate succession declared in this code, are applicable: 1. To persons born in the common-law provinces or territories of parents subject to the law of the forum, if the latter, during the minority 7 of the children, or the said children, within the year following their majority or emancipation, declare it is their desire to submit themselves to the civil code. 2. To the children of a father, and, should the latter not exist or be unknown, of a imother belonging to provinces or territories subject to the common law, even when born in provinces or territories where the law of the forum is in force. 3. To those who, proceeding from provinces or territories subject to the law of the forum, should have acquired a residence in other ones, subject to the common law. For the purposes of this article, residence is acquired by a residence of ten years in provinces or territories subject to the common law, unless the interested party, before the termination of this period, expresses his wishes to the contrary, or by a residence of two years, provided that the interested party states that this is his wish. Either declaration should be made before the municipal judge for the proper record in the civil registry. In any case, the wife shall follow the condition of the husband; and the children, not emancipated, that of their fiather, and in his absence that of their mother. The provisions of this article are of reciprocal application to the Spanish provinces and territories having different civil legislation. ART. 16. In matters which are governed by special laws. the deficiency of the latter shall be supplied by the provisions of this Code. BOOK FIRST. P'ERSO(NS. TITLE I. Spa hniards an d Foreigners. AR'r. 17. The following are Spaniards: 1. Persons born in Spanish territory. 2. Children of a Spanish father or mother, even thoughl they were born out of Spain. 3. Foreigners who may have obtained naturalization papers. 4. Those who, without said papers, may have acquired a residence in any town in the Monarchy. ART. 18. Children, while they remain under the parental authority, have the nationality of their parents. In order that those born of foreign parents in Spanish territory may enjoy the benefits granted them by No. 1 of article 17, it shall be an indispensable requisite that the parents declare, in the manner and before the officials specified in article 19, that they choose in the name of their children the Spanish nationality, renouncing all others. ART. 19. The children of a foreigner born in Spanish possessions must state, within the year following their majority or emancipation, whether they desire to enjoy the citizenship of Spaniards, granted them by article 17. 8 Those who are in the Kingdom shall make this declaration before the official in charge of the civil registry of the town in which they reside; those who reside abroad before one of the consular or diplomatic agents of the Spanish Government, and those who are in a country in which the Government has no agent addressing the secretary of state of Spain. ART. 20. The citizenship of a Spaniard is lost by acquiring the nationality of a foreign country, or by accepting employment from another Government, or by entering the armed service of a foreign power without the permission of the King. ART. 21. A Spaniard who loses his citizenship by acquiring the nationality of a foreign country can recover it upon returning to the Kingdom by declaring to the official in charge of the civil registry of the domicile which he elects that such is his wish, in order that the proper entry may be made, and by renouncing the protection of the flag of said country. ART. 22. A married woman follows the condition and nationality of her husband. A Spanish woman who marries a foreigner may, upon the dissolution of the marriage, recover the Spanish nationality by complying with the requisites mentioned in the preceding article. ART. 23. Any Spaniard who loses his citizenship by accepting employment from any other government, or by entering the armed service of a foreign power without the King's permission, can not recover the Spanish nationality without previously obtaining the royal authorization. ART. 24. A person born abroad, of a Spanish father or mother, who may have lost the Spanish nationality on account of the parents having lost it, may also recover it by complying with the conditions required by article 19. ART. 25. In order that foreigners who have obtained naturalization papers or acquired a residence in any town in the Monarchy may enjoy Spanish nationally, they must previously renounce their former nationality, swear to the constitution of the Monarchy, and record themselves as Spaniards in the civil registry. ARIT. 26. Spaniards who change their domicile to a foreign country, where they may be considered as natives without other conditions than that of residence therein, shall be required, in order to preserve the Spanish nationality, to state that such is their wish before the Spanislh diplomatic or consular agent, who must record them in the registry of Spanish residents, as well as their spouses, should they be married, and any children they may have. ART. 27. Foreigners enjoy in Spain the rights which the civil laws grant to Spaniards, with the exception of the provisions of article 2 of the constitution of the State or in international treaties. ART. 28. Corporations, institutions, and associations recognized by law and domiciled in Spain shall enjoy the Spanish nationality pro 91 vided they possess the character ofjudichi:dl ersois in accordance with the provisions of this code. Associations domiciled abroad shall have in Spain the consideration and the rights fixed in treaties or special laws. TITLE 11. Birth and extinction of civil personality. CHAPTER FIRST. Natural persons. ART. 2!9. Birth determines personality, but the conceived child is considered as born for all favorable purposes, provided that it be born with the conditions mentioned in the following article. ART. 30. For civil purposes the foetus shall only be considered as born which has a human form and lives twenty-four hours entirely separated from the mother's womb. ART. 31. Priority of birth, in case of twins, gives to the firstborn the rights which the law recognizes in primogeniture. ART. 32. Civil personality is extinguished by the death of persons. Minority, insanity, or idiocy, the state of being (leaf and dumb, prodigality, and civil interdiction are only restrictions upon the judicial personality. Those who are in any of these conditions may have rights and even obligations when they arise from the facts or from the relations between the property of the incapacitated person and a third person. ART. 33. Should there be doubt between two or more persons called to succeed each other as to which of them died first, he who alleges the prior death of one or the other must prove it; in the absence of proof it shall be presumed that they both died at the same time, and the transmission of rights from one to the other shall not take place. ART. 34. With regard to the presumption of the death of an absentee and its effects the provisions of title 8 of this book shall govern. CHAPTER II. Judicial persons. ART. 35. The following are judicial persons: 1. The corporations, associations, and institutions of public interest recognized by law. Their personality begins from the very instant in which, in accordance with law, they are validly established. 2. The associations of private interest, be they civil, commercial, or industrial, to which the law grants proper personality, independent of that of each member thereof. ART. 36. The associations referred to in No. 2 of the foregoing article, shall be governed by the provisions of their articles of association, according to the nature of the latter. 10 ART. 37. The civil capacity of corporations shall be governed by the la ws which have created or recognized them[; that of associations by their by-laws, and that of institutions by the rules of their establishment, duly approved by an administrative act, when this requisite is necessary. ART. 38. Judicial persons may acquire and possess property of all kinds, as well as contract obligations and institute civil or criminal actions in accordance with the laws and rules of their establishment. The church shall be governed, in this particular, by what has been agreed upon by both powers, and educational and charitable institutions by the provisions of special laws. ART. 39. When corporations, associations, and institutions have *ceased to act, by reason of the termination of the period during which they legally acted, or on account of having attained the ends for which they were established, or because it has become impossible to apply thereto the activity and the means which were at their disposal, the property shall be disposed of as may have been determined upon by the laws or by-laws or articles of their establishment. If nothing has been previously fixed, the property shall be used for similar purposes in the interests of the region, province, or municipality which may have principally reaped the benefits of the extinct institutions. TITLE III. Dom icile. ART. 40. For the exercise of rights and the fulfillment of civil obligations the domicile of natural persons is the place of their usual residence; and, in a proper case, that determined by the law of civil procedure. The domicile of resident diplomats who, by reason of their office abroad, enjoy the rights of extraterritoriality shall be the last one they had in Spanish territory. ART. 41. When neither the law which lhas created or recognized them, nor the statutes or rules of their establishment fix the domicile of judicial persons, it shall be understood that it is at the place where their legal representation is established or where they exercise the principal duties of their institution. TITLE IV. Mlarriage. CHAPTER FIRST. General provisions. SECTION FIRST.-Forms of marriage. ART. 42. The law recognizes two forms of marriage-the canonical, which all who profess the Catholic religion must celebrate, and the civil, which shall be celebrated in the manner prescribed in this code. 11 SECTION SECOND. —Prorisiof:s (commoni to bothJforms oj mrr 'iage. ART. 43. Future espousals do not give rise to an obligation to contract marriage. No tribultal shall admit a complaint inl which their fulfillment is demanded. ART. 41. If the promise has been made in a public or private instru mient by a person of age, or by a minor iln the presence of the person whose consent is necessary for the celebration of the marriage, or when the banns have been published, the person who refuses to marry, without just cause, shall be obliged to indemnify the other party for the expenses which he or she may lhave incurre(l by reason of the promised marriage. An action to recover indemnity for the expenses to which the foregoilg article refers may be instituted only within a year, counted from the day of the refusal to celebrate the marriage. ART. 45. Marriage is forbidden1. To a minor who has not obtained permission and to a person of age who has not requested the advice of the persons whose right it is to authorize one or the other in the cases provided for by law. 2. To a widow during the three hundred and one days following the death of her husband, or before childbirth if she should have been left pregnant, and to the woman whose marriage has been declared void in the same condition and for the same periods, to be counted from the date of her legal separation. 3. To the guardian and his descendants with the persons whom he may have or may have had under charge, until the guardianship has termlinated and the accounts of his administration have been approved, except in case the father of the person subject to guardianship has authorized the marriage in a will or in a public instrument. ART. 45. (Cuba and Porto Rico.) The following are forbidden to marry in the islands: Males under 20 years of age and females under 17, natives of the Spanish Antilles, who have not obtained the proper permission, and those over said ages who have not requested the advice of the persons whose legal right it is to authorize one or the other. (There is no change in Nos. 2 and 3.) ART. 46. The permission referred to in No. 1 of the preceding article must be granted the legitimate children by the father; in his absence or where he is prevented from giving it the power to grant it devolves upon the mother, the paternal and maternal grandparents, and, in the absence of all of them, upon the family council, in the order fixed here. If acknowledged natural children or children legitimized by royal concession are in question, such consent must be asked of those who acknowledged or legitimized them, of their ascendants, and df the family council, in the order established in the preceding paragraph. If adopted children are in question, the consent shall be asked of the adopting father, and in his absence of the proper members of the natural family. 12 Other illegitimate children shall obtain the consent of their mother, when she is legally acknowledged, that of the maternal grandparents in the same case, and, in the absence of either, that of the family council. It is the duty of the heads of foundling institutions to give consent for marriage to those educated therein. ArT. 47. Childrenl of age are obliged to ask the advice of their father, and in his absence that of the mother. If they should not obtain it, or it should be unfavorable, the marriage can not be celebrated until three months after the petition is made. ART. 47. (Cuba and Porto Rico.) Children over the ages referred to in number 1 of article 45 are obliged to request the advice of the father, and in his absence of the mother. Should they not obtain it, or should it be unfavorable, the marriage can not take place until three months after the petition was made. ART. 48. The consent and the favorable advice for the celebration of a marriage must be proven, if requested, by means of an instrument authenticated by a civil or ecclesiastical notary or by the municipal judge of the domicile of the petitioner. When the advice has been asked in vain the lapse of time to which the preceding article refers shall be proven in the samie manner. ART. 49. None of those called upon to give their consent or advice is obliged to state the reasons for granting or refusing it, nor is there any remedy against their dissent. ART. 50. If, notwithstanding the provisions of article 45, the persons mentioned therein are married, their marriage shall be valid; but the contracting parties, without prejudice to the provisions of the penal code, shall be subject to the following rules: 1. Tile marriage slhall be understood as contracted with the absolute separation of property, and each spouse shall retain the ownership and administration of tlhat which belongs to him or her, the income therefrom being his or hers, although with the obligation of proportionally defraying the marriage expenses. 2. Neither of the spouses shall receive from the other anything by gift or by will. The provisions of the two preceding rules shall not be applicable to the cases of number 2 of article 45, if dispensation has been obtained. 3. If one of the spouses is a minor, not emancipated, he or she shall not administer his or her property until attaining majority. In tle meantime he or she shall only be entitled to support, which shall nlot exceed the net income from his or her property. 4. In the cases of number 3 of article 45 the guardian shall, besides, lose the administration of the property of the ward during her minority. ART. 51. Civil or canonical marriage shall produce no civil effects when either of the spouses is already legally married. ART. 52. Marriage is dissolved by the death of one of the spouses. 13 SECTION THIRD.-ProQt of marriage. ART. 53. Marriages celebrated before this code went into effect shall be proved by the means established by prior laws. Those contracted subsequently shall be proved only by a certificate of the record in the civil registry, unless the books thereof never existed or have disappeared, or a question is pending before the tribunals, in which cases all kinds of evidence is admissible. ART. 54. In the cases referred to in the second paragraph of the foregoing article, the uninterrupted status of the parents, together with the certificates of the birth of their children as legitimate, shall be one method of proof of the marriage of the former, unless it is shown that one of the two was bound by another prior marriage. ART. 55. A marriage contracted in a foreign country, where such acts do not require a regular or authentic registration, may be proven by any of the methods of proof admitted by law. SECTION FOURTH. —Rights and obligations of husband and wife. ART. 56. The spouses are obliged to live together, to be faithful to and mutually assist each other. ART. 57. The husband must protect the wife and the latter obey the husband. ART. 58. The wife is obliged to follow her husband wherever he may establish his residence. The tribunals, nevertheless, may, with just cause, exempt her from this obligation when the husband removes his residence beyond the seas or to a foreign country. ART. 59. The husband is the administrator of the property of the conjugal partnership, except when the contrary is stipulated and in the case of article 1384. If he is under 18 years of age, he can not administer without the consent of his father; in the absence of the latter, that of the mother, and in the absence of both without that of his guardian. Neither may he appear in a suit without the appearance of said persons. In no case, until he has attained majority, may the husband, without the consent of the persons mentioned in the preceding paragraph, borrow money, encumber or alienate the real property. ART. 60. The husband is the representative of his wife. The latter can not, without his permission, appear in a suit in person nor through a solicitor. Nevertheless, she does not require such permission to defend herself in a criminal suit, or to proceed against or to defend herself in suits with her husband, or when she may have obtained the rights in accordance with the provisions of the law of civil procedure. ART. 61. Neither may the wife, without the permission or power of her husband acquire property for a good or valuable consideration, alienate her property or bind lherself, except in the cases and with the limitations established by law. 14 ART. 62. Acts executed by the wife contrary to the provisions of the preceding articles are void, except wlien they involve things which by their nature are to be applied to the ordillary use of the family, in which case purchases made by the wife shall be valid. Purchases of jewels, furniture, and precious objects made without the permission of the husband shall only be valid when the latter may have consented to his wife using and enjoying such things. ART. 63. The wife, without permission of her husband, may1. Execute a will. 2. Exercise the rights and fulfill the duties which appertain to her with regard to the legitimate and acknowledged natural children she may have had by another, and with relation to the property of the same. ART. 64. The wife shall share the honors of her husband, except those which are strictly and exclusively personal, and shall retain them as long as she does not contract a new marriage. ART. 65. Only thehusband and his heirs may enforce the nullityof the acts executed by his wife without proper permission or authorization. ART. 66. The provisions of this section are understood to be without prejudice to those of this code relating to absence, incapacity, prodigality, and interdiction of the husband. SECTION FIFTH.-1Effects of annullment of marriage and of divorce. ART. 67. The civil effects of suits and decrees concerning annullment of marriage and divorce can only be obtained before the ordinary tribunals. ART. 68. After the suits referred to in the preceding article have been instituted and admitted, the following measures shall be adopted during the plendency thereof: 1. The separation of the spouses in every case. 2. The protection of the wife in the cases and in the manner prescribed by the law of civil procedure. 3. The placing of the children under the care of one or both of the spouses as may be proper. 4. The provision for the support of the wife and of the children who do not remain under the authority of the father. 5. The adoption of the necessary measures to prevent the husband, who may have given cause for the divorce, or against whom the suit for annulment of the marriage has been instituted, from injuring the wife in the administration of her property. ART. 69. A marriage contracted in good faith produces civil effects, although it may be declared void. If good faith existed on the part of only one of the spouses it shall produce civil effects only with regard to said spouse and to the children. Good faith is presumed if the contrary does not appear. 15 When bad faith existed on the part of both spouses, the marrialge shall only produce civil effects with relation to the children. ART. 70. After the annulment of a marriage has been finally decreed, the sons over three years of age shall remain under the care of the father, and the daughters under the care of the mother, if there should have been good faith on the part of both spouses. If good faith existed on the part of one of the spouses only, the children of both sexes shall remain linder the authority and care of said spouse. If both were guilty of bad faith, the tribunal shall decide as to the disposition of the children inl the manner prescribed in the second paragraph of No. 2 of article 73. The sons and daughters, under three years of age, shall in all cases remain under the charge of the mother, until they attain this age, unless on account of special reasons the decree has ordered otherwise. ART. 71. The provisions of the first and second paragraphs of the preceding article shall not be made use of if the parents, by common consent, shall provide otherwise for the care of the children. ART. 72. The final decree of annulment shall produce, with regard to the property of the marriage, the same effects as a dissolution by death; but the spouse who has acted in bad faith shall have no rights to the profits of the conjugal partllership. When both have acted in bad faith, one shall be set off by the other. ART. 73. A decree of divorce shall produce the following effects: 1. The separation of the spouses. 2. The children to remain or be placed under the authority and protection of the innocent spouse. When both are guilty, a guardian shall be provided for the children in accordance with the provisions of this code, and if the decree lcas not provided otherwise, the mother in every case shall have the children under three years of age in her charge. Upon the death of the innocent spouse, the guilty one shall recover the parental authority and his or her rights, when the cause which gave rise to the divorce should have been adultery, violence to the person, or grave insult. When the cause is different, a guardian shall be appointed for the children. The deprivation of the parental authority and of its rights does not exempt the guilty spouse from the fulfillment of the obligations which this code imposes upon him or her with regard to the children. 3. The guilty spouse shall lose all that may have been given or promised him or her by the innocent one or by any other person in consideration for the latter; and the innocent spouse shall keep all that he or she has received from the guilty one, being permitted, besides, to claim forthwith all that may have been promised by the same. 4. The separation of the property of the conjugal partnership, and the loss of the administration of that of the wife, if the husband should have it, and is the one who gave cause fio' the divorce. 16 5. The retention by the innocent husband of the administration, if he should have it, of the property of the wife, who shall only be entitled to support. ART. 74. Reconciliation terminates the suit for divorce and leaves the decree issued in regard thereto without subsequent effects; but the spouses must give notice thereof to the tribunal which has or may have taken cognizance of the suit. The effects of the decree shall be enforced with regard to the children, without prejudice to the provisions of the foregoing article, when it is founded on the attempt or connivance of the husband or of the wife to corrupt their sons or to prostitute their daughters, in which case, if either still continue under the parental authority, the tribunals shall adopt the proper measures in order to protect them from corruption or prostitution. CHAPTER SECOND.-Canonical marriage. ART. 75. The requisites, form, and solemnities for the celebration of canonical marriages shall be governed by the provisions of the Catholic Church and of the Holy Council of Trent, accepted as laws of the Kingdom. ART. 76. Canonical marriage shall produce all the civil effects with regard to tlhe persons and property of the spouses and their descendants. ART. 77. A municipal judge or other official of the State shall be present at the celebration of the canonical marriage for the sole purpose of making the immediate record thereof in the civil registry. For this purpose the contracting parties are obliged to give notice in writing to the proper municipal court twenty-four hours at least in advance, of the day, hour, and place where the marriage is to be celebrated, incurring, should they not do so, a fine of from 5 to 80 pesetas. The municipal judge shall give a receipt for the notice from the contracting parties. Should he refuse to give it, he shall incur a fine, which shall not be less than 20 nor exceed 100 pesetas. The celebration of the canonical marriage shall not be proceeded with without the presentation of said receipt to the parochial priest. If the marriage is celebrated without the presence of the municipal judge or his delegate, notwithstanding that the contracting parties may have advised him thereof, the record of the certificate of the canonical marriage in the civil registry shall be made at his expense, and he shall pay,-besides, a fine which shall not be less than 20 nor exceed 100 pesetas. In such case, the marriage shall produce all its civil effects from the moment of its celebration. If the contracting parties should be at fault for not having given notice to the municipal judge, they may remedy the defect by asking for the record of the marriage in the civil registry. In this case, the marriage shall produce no civil effects, except from the time of its record. 17 ART. 78. Those who contract canonical marriage in articulo mortis may give notice to the person in charge of the civil registry, at any time before its celebration, and prove, in any manner whatsoever, that they have fulfilled this duty. The penalties imposed upon contracting parties who omit this requisite shall not be applicable to the case of marriage in articulo mortis, when it is shown that it was impossible to give proper notice. In every case, in order that the marriage may produce civil effects from the date of its celebration, the sacramental certificate shall be entered in the registry within the following ten days. ART. 79. The secret marriage of conscience, celebrated before the church, is not subject to any formality in the civil order, nor shall it produce any civil effects, except from the time of its publication through its entry in the registry. This marriage shall nevertheless produce civil effects from the time of its celebration if both contracting parties, by common consent, ask the bishop who authorized it, for a copy of the entry made in the secret register of the bishopric, and if they send it directly, with the proper secrecy, to the general direction of the civil registry, requesting its entry. For this purpose the general direction shall keep a special and secret registry with the necessary precautions, in order that the contents of said records may not be made known until the interested parties request that they be made public by transferring the same to the municipal registry of their domicile. ART. 80. The cognizance of suits for annulment and divorce, in case of canonical marriages, appertains to the ecclesiastical tribunals. ART. 81. When a suit for divorce or annulment of marriage has been instituted before the ecclesiastical tribunal, it is the duty of the civil tribunal to order, at the instance of the party interested, the provisions referred to in article 68. ART. 82. A final decree of annulment or divorce of a canonical marriage shall be entered in the civil registry, and shall be presented to the ordinary tribunal for the purpose of requesting its enforcement in the part relating to the civil effects. CHAlPTER THIRD. Civil marriage. SECTION FIRST.-Capacity of the contracting parties. ART. 83. The following can not contract marriage: 1. Males under the age of fourteen and females under the age of twelve. Marriage contracted by persons who have not arrived at the age of puberty, shall, nevertheless, be, ipso facto validated, without the necessity of an express declaration, if one day after having attained legal 6433 -2 18 puberty they should have lived together without having given rise to a suit against its validity, or if the woman should have conceived before legal puberty or before the institution of said suit. 2. Those who were not in the full enjoyment of their reason at the time of contracting marriage. 3. Those who suffered from absolute or relative physical impotency for the purposes of procreation, prior to the celebration of the marriage, in a patent, perpetual, and incurable manner. 4. Those ordained in sacris and those professed in an approved religious canonical order, bound by a solemn pledge of chastity, unless either have obtained the proper canonical dispensation. 5. Those who are already bound in marriage. ART. 84. Neither can the following contract marriage with each other: 1. The ascendants and descendants by legitimate or natural consanguinity or affinity. 2. Collaterals by legitimate consanguinity up to the fourth degree. 3. Collaterals by legitimate affinity up to the fourth degree. 4. Collaterals by natural consanguinity or affinity up to the second degree. 5. The adopting father or mother and the adopted; the latter and the surviving spouse of the former, and the former and the surviving spouse of the latter. 6. The legitimate descendants of the adopter with the adopted, while the adoption lasts. 7. Adulterers who have been condemned by a final judgment. 8. Those who have been condemned as authors, or as the author and accomplice, of the death of the spouse of either of them. ART. 85. The government, with sufficient cause, may, at the instance of a party, waive the impediment mentioned in No. 2 of article 45; the third and fourth degrees of collaterals by legitimate consanguinity; the impediments arising from legitimate or natural affinity between collaterals, and those relating to the descendants of the adopter. SECTION SECOND.-Celebration of marriage. ART. 86. Those who, in accordance with article 42, desire to contract marriage in the manner determined in this code, shall present to the municipal judge of their domicile a declaration signed by both contracting parties, in which there shall be stated: 1. The names, surnames, age, profession, domicile or residence of the contracting parties. 2. The names, surnames, profession, domicile or residence of the parents. Certificates of birth and of the status of the contracting parties, the consent or advice, if proper, and the dispensation, when it is necessary, shall accompany this declaration. ART. 87. Marriages shall be celebrated in person, or by a proxy to whom a special power has been given; but the presence of the contract 19 ing party who is domiciled or resides in the district of the judge who is to authorize the marriage shall always be required. The name of the person with whom the marriage is to be celebrated shall be mentioned in the special power, and the marriage shall be valid if, before its celebration, the person so authorized should not have been notified in an authentic manner of the revocation of the power. ART. 88. If the municipal judge selected for the celebration of the marriage should not be at the same time that of the domicile of both contracting parties, two declarations shall be presented, one to the municipal judge of each contracting party, stating which of the two judges they have selected for the celebration of the marriage, and in both courts the proceedings established in the following articles shall be pursued. ART. 89. The municipal judge, after ratification of the contracting parties, shall order that edicts or proclamations be posted for fifteen days announcing the desire, with all the conditions mentioned in article 86, and calling upon those who have information of any obstacle to denounce it. Similar edicts shall be sent to the municipal judges of the towns in which the interested parties may have resided or been domiciled during the two previous years, requesting that they be posted in the place of the holding of their public court for the period of fifteen days, and that, after the lapse of this time, they return them with a certification of said requisite having been fulfilled and whether or not any obstacle has been denounced. ART. 90. Soldiers in active service who intend to contract marriage shall be excused from the publication of such edicts outside of the place where they reside if they present a certificate that they are unmarried, issued by the commanding officer of the military body to which they belong. ART. 91. If the interested parties are foreigners, and have not resided two years in Spain, they shall prove, by a certificate in due form, issued by a competent authority, that in the territory where they have had their domicile or residence during the two previous years the publication has been made of the marriage which they intend to contract, with all the formalities which are required in the former place. ART. 92. In all other cases only the Government may waive the publication of the edicts on account of serious causes sufficiently proved. ART. 93. Notwithstanding the provisions of the preceding articles, the municipal judge shall authorize the marriage of a person who is inl imminent danger of death, whether he or she is domiciled in the place or is a transient. This marriage shall be considered conditional until the previous freedom of the contracting parties is legally established. ART. 94. Paymasters of men-of-war and captains of merchantmen shall authorize marriages which are celebrated on board in imminent danger of death. These marriages shall also be considered conditional. 20 ART. 95. The provisions of the preceding article are applicable to the commanders of military bodies in the field in the absence of a municipal judge with regard to the members of the same who desire to celebrate marriage in articulo mortis. ART. 96. After the fifteen days referred to in article 89 have elapsed, without any obstacle having been denounced, the municipal judge having no knowledge of any, he shall proceed with the celebration of the marriage in the manner prescribed in this code. If a year elapses from the publication of the edicts without the marriage taking place, it shall not be celebrated without a new publication. ART. 97. If, before the celebration of the marriage, any person should appear opposing it and alleging a legal obstacle, or the municipal judge should have knowledge of any, the celebration of the marriage shall be suspended until the truth or falsity of the obstacle is declared in a final judgment. ART. 98. All those who have knowledge of an intention to. marry are obliged to denounce any obstacle known to them. The denunciation having been made, it shall be forwarded to the department of public prosecution, which, if it finds any legal foundation therefor, shall oppose the marriage. Only private parties who have an interest in preventing the marriage may personally institute the opposition, and in either case such opposition shall be carried out in accordance with the law of civil procedure, giving it the form of an interlocutory issue. ART. 99. When, by a final judgment, the alleged obstacles are declared false, he who, taking them as a basis, instituted in his name the opposition to the marriage, shall be bound to make indemnity for damages and injuries. ART. 100. The marriage shall be celebrated by the contracting parties appearing before the municipal judge, or one of them and the person to whom the absentee may have granted a special power to represent him or her, accompanied by two witnesses of age and without legal impediments. Immediately thereafter the municipal judge, after reading articles 56 and 57 of this code, shall ask each one of the contracting parties if they persist in their decision to celebrate the marriage, and if he shall actually perform it; and if both reply affirmatively he shall draft the certificate of marriage with all the circumstances necessary to show that the requirements prescribed in this section have been complied with. The certificate shall be signed by the judge, by the contracting parties, by the witnesses, and by the clerk of the court. Consuls and vice-consuls shall exercise the duties of municipal judges in marriages of Spaniards celebrated abroad. SECTION THIRD.-Annullment of marriage. ARm'. 101. The following marriages are void: 1. Those celebrated between the lpersols referred to in articles 83 and 84, except in cases of dispensation. 21 2. Those contracted by error as to tile p)erson, or by compulsion or intimidation, which avoids the consent. 3. Those contracted by the abductor with the abducted while she is ill his power. 4. Those which are not celebrated by a competent municipal judge, or by the person who should act in his place, and without the presence of the witnessess required by article 100. ART. 102. An action for the purpose of procuring the nullity of the marriage must be instituted by the spouses, by the department of public prosecution, or by any person whatsoever who may have any interest therein. Cases of abduction, error, force, or intimidation are excepted, in which cases only the spouse who may have suffered therefrom may institute it; and that of impotency, in which the action appertains to either spouse and to the persons who may have an interest in the anullment. The action lapses and marriages are confirmed in the respective cases if the spouses having lived together during six months after the error has disappeared or after the force or the cause of intimidation has ceased, or if, after the abducted party having recovered liberty, he or she should not have instituted a suit for nullity during said period. ART. 103. The civil tribunals shall take cognizance of the suits for annullments of marriages celebrated in conformity with the provisions of this chapter, and shall adopt the measures indicated in article 68, and shall render final judgment. SECTION FOURTH.-Divorce. ART. 104. Divorce only pro(lduces the suspension of the life in common of the spouses. ART. 105. The legitimate causes for divorce are: 1. Adultery on the part of the wife in every case; and on the part of the husband when public scandal or disgrace of the wife results therefrom. 2. Personal violence actually inflicted or grave insults. 3. Violence exercised by the husband toward the wife in order to force her to change her religion. 4. The proposal of the husband to prostitute his wife. 5. The attempts of the husband or wife to corrupt their sons or to prostitute their daughters, and connivance in their corruption or prostitution. 6. The condemnation of a spouse to perpetual chains or hard labor (cadena O reclusion perpetua). ART. 106. The innocent spouse only can petition for divorce. ART. 107. The provisions of article 103 shall be applicable to suits for divorce and to their interlocutory issues. TITLE V. Paternity and filiation. CHAPTER FIRST. Legitimate children. ART. 108. Childrei born after the one hundred and eighty days fol lowing that of the celebration of marriage and before the three hundreid (lays following its dissolution or the separation of the spouses shall be presumed legitimate children. Against this presumption no other proof shall be admitted than that of the physical impossibility of the husband to have had access to his wife during the first one hundred and twenty days of the three hundred next preceding the birth of the child. ART. 109. A child shall be presumed to be legitimate, even though the another should have declared against its legitimacy or should have been convicted of adultery. ART. 110. The child born within the one hundred and eighty days following the celebration of a marriage shall be presumed to be legitimate if any of the following circumstances exist: 1. If the husband knew, before the marriage, that his wife was pregnant. 2. If he, being present, consented that in the certificate of birth his name be given the child borne by his wife. 3. If he has expressly or impliedly acknowledged the child as his own. ART. 111. The husband or his heirs can disavow the legitimacy of a child born after the expiration of three hundred days from the dissolution of the marriage or the actual legal separation of the spouses, but both the child and the mother shall also have a right to prove in such cases the paternity of the husband. ART. 112. The heirs can contest the legitimacy of the child in the following cases only: 1. If the husband died before the expiration of the term fixed for instituting his judicial action. 2. If he dies after bringing the suit without having withdrawn it. 3. If the child was born after the death of the husband. ART. 113. The action to impugn the legitimacy of the child must be instituted within the two months following the record of the birth in the registry, should the husband be in the same place, or, in a proper case, any of his heirs. When they are absent, the period shall be three months if they reside in Spain, and six if outside of Spain. When the birth of the child hias been concealed, the period shall commence to be counted from the date of the discovery of the fraud. ART. 114. Legitimate children have the right1. To hear the surnames of the father and of the,mother. 23 2. To rec(eive support from the same, from their ascendants, and, in certain cases, from their brothers, in accordance with article 143. 3. To the legal portion (legitima) and other successional rights granted them by this code. CHAPTER SECOND. Proofs of the filiation of legitimate children. ART. 115. The filiation of legitimate children is proven by the record of the birth, entered in the civil registry, or by an authentic instrument, or a final judgment in the cases referred to in articles 110 to 113 of the preceding chapter. ART. 116. In the absence of the documents mentioned in the preceding article, filiation shall be proven by the uninterrupted enjoyment ol the status of a legitimate child. ART. 117. In the absence of the record of birth, authentic document, final sentence, or enjoyment of status, legitimate filiation may be proven by any means, provided there is a foundation of proof in writing coming from both parents, either jointly or severally. ART. 118. The action to claim its legitimacy may be brought by the child at any time of its life and shall be transmitted to its heirs, should it die during minority or in a state of insanity. In such cases the heirs shall be allowed a period of five years in which to institute the action. The action already instituted by the child is transmitted by its death to the heirs, if it has not lapsed before then. CHAPTER THIRD. Legitimized children. ART. 119. Only natural children can be legitimized. Natural children are those born out of wedlock of parents who, at the time of the conception of the child, could have married with or without dispensation. ART. 120. Legitimation shall take place1. By the subsequent marriage of the parents. 2. By royal concession. ART. 121. Children shall only be considered as legitimized by a subi sequent marriage when they have been acknowledged by the parents before or after the celebration thereof. ART. 122. Those legitimized by a subsequent marriage shall enjoy the same rights as legitimate children. ART. 123. Legitimation shall produce its effects in any case from the date of the marriage. ART. 124. The legitimation of the children who (lied before the cele. bration of the marriage shall benefit their descendants. 24 ART. 125. For the legitimation by royal concession the following requisites are necessary: 1. That legitimation by subsequent marriage is not possible. 2. That it be asked by the parents or by one of them. 3. That the father or mother requesting it has no legitimate children, nor children legitimized by subsequent marriage, nor descendants of the same. 4. That if the person requesting it is married, he or she obtains the consent of the other spouse. ART. 126. Legitimation by royal concession may also be obtained by the child whose deceased father or mother has expressed in his or her will or in a public instrument a wish to legitimize it, provided the condition established in No. 3 of the preceding article is complied with. ART. 127. Legitimation by royal concession entitles the legitimized child: 1. To bear the surname of the father or mother who requested it. 2. To receive support from the same in the manner mentioned in article 143. 3. To the hereditary portion established in this code. ART. 128. The legitimation may be impugned by those who consider their rights injured when it is granted to persons not having the legal status of natural children, or when the requirements mentioned in t his chapter do not exist. CHAPTER FOURTH. Illegitimate children. SECTION FIRST.-Acknowledgment of natural children. ART. 129. A natural child may be acknowledged by the father and mother jointly or by only one of them. ART. 130. In case the acknowledgment is made by one of the parents only, it shall be presumed that the child is a natural one if the person acknowledging it had at the time of the conception legal capacity to contract marriage. ART. 131. The acknowledgment of a natural child shall be made in the record of birth, by will, or by any other public instrument. ART. 132. When the father or mother shall make the acknowledgment separately, he or she shall not reveal the name of the person by whom the child was had, nor state any circumstance by which it may be discovered. Public officials shall not authenticate any instrument violating this provision. If, notwithstanding this prohibition, they should do so, they shall incur a fine of 125 to 500 pesetas, and, besides, the words containing such revelation shall be stricken out officially. ART. 133. A child of age can not be acknowledged without its consent. When the acknowledgment of the minor is not made in the record of 25 birth or i a vwill,.ju(licial ap)proval, wvith:t. bearintg of the Departmelt of IPublic Prosecution, shall be required. The miinor may, iii aly case, contest the acknowledgment within the four years following his or her majority. ART. 134. An acknowledged natural child has a right: 1. To bear the surname of the person acknowledging it. 2. To receive support from the same, in accordance with article 143. 3. To receive, in a proper case, the hereditary portion fixed in this ('ode. Au'r. 135. The father is obliged to acknowledge the natural child in the following cases: 1. When an indisputable paper written by him, expressly acknowledging his paternity, is in existence. 2. When the child is in uninterrupted eujoynIent of the status of a natural child of the defendant father, justified by direct acts of the said father or of his family. I In cases of violation, ravishment, or rape, the l)rovisions of the penal code shall be observed with regard to the acknowledgment of the issue. ART. 136. The mother is obliged to recognize the natural child: 1. When the child is, with regard to the mother, included in any of the cases stated in the preceding article. 2. When the fact of the birth and the identity of the child are duly proven. ART. 137. The actions for the acknowledgment of natural children can be instituted only during the life of the presumed parents, except in the following cases: 1. If the father or mother died during the minority of the child, in which case the latter may institute the action before the expiration of the first four years of its majority. 2. If, after the death of the father or mother, some instrumenlt, before unknown, should be discovered in which the child is expressly acknowledged. In this case the action must be instituted within the six months following the discovery of such instrument. ART. 138. The acknowledgment of a child which does not have the condition of the second paragraph of article 119, or in which the prescriptions of this section have not been complied with, may be cointested by those it injures. SECTION SECOND.-Other illegitimate children. ART. 139. Illegitimate children not in the enjoyment of the legal status of natural children shall only have the right to claim support from their parents in accordance with article 143. ART. 140. The right to support, referred to in the preceding article, can only be claimed1. If the paternity or maternity is inferred from a final judgment rendered in a criminal or civil action. 26 2. If the paternity or maternity is shown in an indisputable document, from the father or mother, in which the filiation is expressly acknowledged. 3. With regard to the mother, if the fact of the birth and the identity of the child are fully proven. ART. 141. With the exception of the cases mentioned in Nos. 1 and 2 of the preceding article, no judicial complaint shall be admitted, the purpose of which may be to investigate either directly or indirectly the paternity of illegitimate children who have not the legal. status of natural children. TITLE V I. The support of relations. ART. 142. By support is understood all that is requisite for maintenance, residence, clothing, and medical assistance, according to the social standing of the family. Support includes also the education and instruction of the party receiving it when he or she is a minor. ART. 143. The following are obliged to mutually support e:sch other to the full extent fixed in the preceding article: 1. The spouses. 2. Legitimate ascendants and descendants. 3. Parents and children legitimized by royal concession and the legitimate descendants of the latter. 4. Parents and acknowledged natural children, and the legitimate descendants of the latter. Parents and illegitimate children not having the legal status of natural children, owe each other, by way of support, all the help necessary for their subsistence. Parents, besides, are bound to bear the expenses of the elementary instruction of the children as well as the teaching of a profession, art, or trade. Brothers and sisters also owe to legitimate brothers and sisters, even when only on the mother's or father's side, the necessary assistance for living, when by a physical or moral defect or for any other reason not chargeable to the recipient, the latter should not be able to support himself or herself. In this assistance is included, in a proper case, the necessary expenses to defray the costs of the elementary instruction and for the teaching of a profession, art, or trade. ART. 144. The demand for support, when proper, and when two or more are obliged to give it, shall be made in the following order: 1. Of the spouse. 2. Of the descendants in the nearest degree. 3. Of the ascendants also in the nearest degree. 4. Of the brothers. Between descendants and ascendants the graduation shall be regulated by the order in which they are called to the legitimate succession of the person entitled to support. 27 ARt. 145. Whenlever the obligation to support is charged on two or more persons, the payment of the pension shall be divided among them at a rate in proportion to their respective means. However, in case of urgent necessity and in special circumstances the judge may force only one of them to pay it temporarily, without prejudice to his right to claim from the other parties obligated the portion that is due from them. When two or more persons entitled thereto claim support at the same time, from the same person legally bound to give it, and such person has not sufficient means to pay for all, the order established in the preceding article shall be observed, unless the persons claiming the support are the spouse and a child subject to the parental authority, in which case, the latter shall be preferred to the former. ART. 146. The amount of support, in the cases mentioned in the four numbers of article 143, shall be in proportion to the capital or means of the persons giving it and to the requirements of the recipient. ART. 147. Support, in the cases to which the preceding article refers shall be reduced or increased proportionately according to the increase or reduction of the necessities of the recipient and the means of the person obliged to give it. ART. 148. The obligation to give support may be enforced from the moment the person having a right to claim it requires it for his or her maintenance, but it shall be paid only from the date of the claim. Payment shall be made monthly in advance, and when the recipient dies, his or her heirs shall not be obliged to refund what the latter may have received in advance. ART. 149. The person obliged to give support may, at his option, do so either by paying the pension that may be fixed, or by receiving and supporting in his or her own home the person having a right thereto. ART. 150. The obligation to support ceases with the death of the person obliged to give it, even if paying it in compliance with a final judgment. ART. 151. The right to support can not be renounced or transferred to a third party. Neither can it be set off against what the recipient owes to the party obliged to give it. But pensions for support in arrears may be set off and renounced, and the right to claim them may be transferred for a good or valuable consideration. ART. 152. The obligation to give support shall cease: 1. By the death of the recipient. 2. If the means of the person obliged to pay it are reduced to such a point that he or she can not pay it without neglecting his or her own requirements and those of his or her family. 3. If the recipient is able to work at a trade, profession, or industry, or has obtained employment or improved his or her fortune in such a manner that the pension for support is not required for his or her support. 28 4. If the recipiient, be llt or be le not an heir by force of law, conllmits any offense which gives rise to disinheritance. 5. When the recipient is a descendant of the person obliged to give support, and the necessity of the former arises from bad conduct or from want of application to work, while such reason exists. ART. 153. The foregoing provisions are applicable to the other cases in which, by this code, by will, or by agreement, a right to support may arise, excepting what is stipulated, ordered by the testator, or provided by law for the special case in question. TITLE VII. The parental authority. CHAPTER FIRST. General provision. ART. 154. The father, and, in his absence, the mother, has authority over their legitimate children, not emancipated, and the children are bound to obey them while they remain under their authority and always to show them respect and reverence. Acknowledged natural children and adopted minors are under the authority of the father or of the mother who acknowledges or adopts them, and must also comply with the obligations referred to in the preceding paragraph. CHAPTER SECOND. Effects of parental authority with regard to the persons of the children. AR'. 155. The father, and, in his absence, the mother, has, with regard to their children not emancipated1. The duty of supporting them, to keep them in their company, educate and instruct them in proportion to their means, and represent them in the exercise of all actions that may redound to their benefit. 2. The right to correct and punish them moderately. ART. 156. The father, and, in a proper case, the mother, may request the assistance of the administrative authorities, which must be given to them in support of their owi authority over their children, not emancipated, either within the domestic hearth or for the detention and even for the retention of the same in educational institutions or in institutions legally authorized to receive them. They can also demand the intervention of the municipal judge for the purpose of imposing on their children, up to one month's detention in a correctional institution, devoted to that purpose, the order of the father or mother with the countersignature of the judge being sufficient for enforcing such detention. The provisions of the two preceding paragraphs include children, either legitimate, legitimized, acknowleged, natural, or adopted. 2!9 ART. 157. When the father or imother has contracted a seoed(l marriage and the child should be born of a prior marriage, they must state to the judge the reasons for their decision to punish him or her, and the judge shall hear the child in person and decree or refuse to order the detention without appeal. The same thing shall be observed when the child, not emancipated, holds anly position or works at any trade, even when the parents have not contracted a second marriage. ART. 158. The father, and in a proper case the mother, shall pay for the support of the detained child; but they can not interfere in the management of the institution where it is detained, being only permitted to have it released when they deem proper. CHAPTER THIRD. Effect of parental authority with regard to the property of the children. ART. 159. The father, or, in his absence, the mother, is the legal administrator of the property of the children who are under their authority. ART. 160. The ownership of property which a child not emancipated may have acquired, or acquires by its work or indlustry or for any good consideration, is vested in the child, and the usufruct in the father or mother who has him or her under his or her authority and in his or her company; but if the child, with the consent of the parents, lives indel)endently of them, he or she shall be considered as emancipated for all purposes with regard to said property and shall own it and enjoy the usufruct and administration thereof. ART. 161. The ownership and usufruct of what the child acquires with the capital of his or her parents is vested in the latter; but should the parents expressly assign to him or her the whole or a part of the profits which he or she may obtain, such profits shall not be chargeable to the latter in the inheritance. ART. 162. The ownership or usufruct of the property or income donated or left by will to a child not emancipated, to cover the cost of his or her education and instruction, is vested in him or her; but the father or the mother shall have the administration thereof if no other proviso has been made in the gifts or bequest, in which case the will of the donors shall be strictly observed. ART. 163. The parents have, with regard to the property of the child11ren, the usufruct or administration of which belongs to them, the obli(gations of every usufructuary or administrator and the special obligations established by section 3, title 5, of the mortgage law. An inventory shall be made with the intervention of the department of public prosecution of the property of the children in which the parents have the administration only, and on the recommendation of the said department the judge may fle'ree the deposit in public securities of the property belonging to the child. 30 ART. 164. The father, or the mother in a proper case, can not alienate the real property of the child, the usufruct or administration of which belongs to them, nor encumber the same, except for sufficient reasons of utility or necessity, and after authorization from the judge of the domicile, hearing the department of public prosecution, excepting the provisions which, with regard to the effects of transfers, the mortgage law establishes. ART. 165. Whenever, in any matter, the father or mother may have an interest opposed to that of their children, not emancipated, a next friend shall be appointed for the latter, to represent them in court or otherwise. The judge, onl petition of the father or of the mother, of the said minor, of the department of public prosecution, or of any other person qualified to appear in court, shall appoint, as the next friend, the relative of the minor to whom the legitimate guardianship should belong in such cases, and, in the absence of the latter, another relative or any other person. ART. 166. The parents who acknowledge or adopt children do not acquire the usufruct of their property, nor shall they have the administration of such property, unless they give bond for the results thereof to the satisfaction of the judge of the domicile of the minor or of the persons who must consent to the adoption. CHAPTER FOURTH. Manner of termination of the parental authority. ART. 167. Parental authority terminates1. By the death of the parents or of the child. 2. By emancipation. 3. By the adoption of the child. ART. 168. The mother who contracts a second marriage loses her parental authority over her children, unless the deceased husband, the father of the latter, should have in his will made express provision for the remarriage of his widow, and had ordered that in such case she was to preserve and exercise the parental authority over their children. ART. 169. The father, and, in a proper case, the mother, loses the authority over their children1. When, by a final sentence in a criminal case, the said authority is taken away as a penalty. 2. When, by a final judgment in a suit for divorce, it is thus determined during the time the effects thereof are in force. ART. 170. The parental authority is suspended by the incapacity or absence of the father or, in a proper case, of the mother, when judicially decided, and also by civil interdiction. ART. 171. The courts may deprive the parents of the parental authority or suspend the exercise thereof when they treat their children with 31 excessive cruelty, or if they give them corrupting orders, advice, or examples. In these cases they can also deprive the parents, either totally or partially, of the usufruct of the property of the child, or take such steps as they may deem advisable for the interests of the latter. ART. 172. If the widowed mnother who has remarried becomes again a widow, she shall recover from that moment her authority over all the children not emaicil)pated. CIIAPTER FIFTH. Adoption. ART. 173. Persons who are in the full enjoyment of their civil rights and have attained 45 years of age can adopt. The adopter must be at least fifteen years older than the adopted. ART. 174. Adoption is forbidden1. To the clergy. 2. To those having legitimate or legitimized descendants. 3. To the guardian with regard to his ward, until his accounts have been finally approved. 4. To a spouse without the consent of his consort. Spouses may adopt jointly, and, with tile exception of this case, nobody can be adopted by more than one person. ART. 175. The adopted may use together with the surname of his or her family that of the adopter, this being stated in the deed of adoption. ART. 176. The adopter and the adopted owe each other mutual support. This obligation is understood without prejudice to the preferred right of acknowledged natural children and of the ascendants of the adopter to be supported by the latter. ART. 177. The adopter does not acquire any right whatsoever to inherit from the adopted. Neither does the adopted acquire any right to inherit from the adopter, except by will, unless the adopter in the deed of adoption has bound himself or herself to make said child his or her heir. This obligation shall produce no effect when the adopted dies before the adopter. The adopted retains all the rights belonging to him or her in his or her natural family excepting those relating to the parental authority. ART. 178. The adoption shall be made with judicial authorization and the consent of the adopted, if of age, must necessarily be given; when a minor, that of the persons who must give consent to his or her marriage, and, when incapacitated, that of the guardian. The Department of Public Prosecution shall be heard on the matter; and the judge, after the proceedings he may consider necessary, shall approve the adoption, if it is according to law, and he believes it beneficial for the adopted. ART. 179. After the adoption has been finally approved by the judge, an instrument shall be drafted stating therein the conditions with which it took place, and it shall be entered in the proper civil registry. 32 ART. 180. The minor or the incapacitated person who has been adopted may contest the adoption within the four years following his or her majority or the date on which his or her incapacity ceased to exist. TITLE VIII. A bsence. CHAPTER FIRST. Provisional measures in cases of absence. ART. 181. When a person has disappeared from his domicile and his whereabouts is unknown and without leaving any attorney to manage his property, the judge, at the instance of a lawful person or at that of the Department of Public Prosecution, may appoint some person to represent him in all that may be necessary. The same shall be done when, under similar circumstances, the power conferred by the absentee lapses. ART. 182. Alter the appointment referred to in the preceding chapter has been made, the judge shall take the necessary steps to secure the rights and interests of the absentee, and shall determine the powers, obligations, and remuneration of his representative, regulating them, according to the circumstances, by the provisions relating to guardians. ART. 183. The spouse who absents himself or herself shall be represented by the one present, whenever they are not legally separated. If the spouse is a minor, a guardian shall be appointed in the usual manner. In the absence of the spouse, the absentee shall be represented by the parents, children, or grandparents, in the order established in article 220. CHAPTER SECOND. Declarations of absence. ART. 184. After two years have elapsed without any news of the absentee having been received, or from the receipt of the last news, and five years, in case the absentee has left a person in charge of the administration of his property, then the absence may be declared. ART. 185. The declaration of absence may be demanded by1. The spouse who is present. 2. The heirs instituted in a will, who present a copy of the same, which is prima facie proof. 3. The relatives who are to inherit ab intestate. 4. Those having in the property of the absentee some right depending on the condition of his death. ART. 186. The judicial declaration of absence shall produce no effect until six months after its publication in the official newspapers. 33 CHAPTER TH1R1). Administration of the property of an absentee. ART. 187. The administration of the property of the absentee is to be given, according to the order established in article 220, to the persons specified therein. ART. 188. The wife of the absentee, if of age, may freely dispose of the property of any kind whatsoever belonging to her, but she can not alienate, exchange, or mortgage the husband's private property, nor that of the conjugal partnership, except with judicial authorization. ART. 189. When the administration appertains to the children of the absentee and they are minors, a guardian shall be appointed for them who shall take charge of the property with the legal formalities. ART. 190. The administration shall cease in any of the following cases: 1. When the absentee appears, either in person or through an attorney. 2. When the death of the absentee is proved and his testamentary or intestate heirs app)ear. 3. When a third party appears proving by proper instruments that he has acquired the property of the absentee by purchase or in any other manner. In such cases the administrator shall cease in the discharge of his duties and the property shall be placed at the disposal of those having a right thereto. CHAPTER FOURTI. Presumption of the death of the absentee. ART. 191. After thirty years have elapsed from the date of the disappearance of the absentee or since the last news was received of him, or ninety years from his birth, the judge, at the instance of an interested party, shall declare the presumption of his death. ART. 192. The judgment declaring the presumption of death of an absentee shall not go into effect until after six months, counted from its publication in the official newspapers. ART. 193. After the judgment of the presumption of death has been declared final, succession to the estate of the absentee shall be opened and its distribution shall be adjudicated with the formalities of testamentary or intestate proceedings, as the case may be. ART. 194. Should the absentee appear, or, if without appearing, his existence be proven, he shall recover his property in its condition at the time and the value of that conveyed, or that acquired thereby; but he can claim neither the profits nor the income. 6433 —3 34 CHAPTER FIFTH..Effects of absence Ipon the eventual rights of the absentee. ART. 195. The person claiming a right belonging to another person, whose existence is not acknowledged, is bound to prove that such other person existed at the time his existence was necessary to acquire the same. ART. 196. Without prejudice to the provisions contained in the preceding article, when a succession has been opened in which an absentee is interested, the share of the absentee shall accrue to his coheirs, unless there is some person having rights of his own to claim it. Both the former and the latter, in a proper case, must make an inventory of said property with the intervention of the department of public prosecution. ART. 197. The provisions of the foregoing article are to be understood without prejudice to proceedings by petition of inheritance or other rights of the absentee, and of his personal or legal representatives. Such rights shall not be extinguished, except by the lapse of time fixed for prescription. In the record to be made in the registry of the real property, which may accrue to the coheirs, there shall be stated that it is subject to the provisions of this article. ART. 198. Those who have taken possession of the estate shall become owners of the income received in good faithl. While the absentee does not appear his rights shall not be exercised by his personal or legal representatives. TITLE IX. Guardianship. CHAPTER FIRST. General provisions. ART. 199. The object of guardianship is the custody of the person and property or only of the property of those who, not being under the parental authority, are incapable of taking care of themselves. ART. 200. The following are subject to guardianship: 1. Minors not legally emancipated. 2. Insane and demented persons, even though they have lucid intervals, and the (leaf and dumb who do not know how to read and write. 3. Those who have been declared prodigal by a final judgment. 4. Those who are suffering the penalty of civil interdiction. ART. 201. Guardianship shall be exercised by a single guardian under the surveillance of a protutor' and the family council. ART. 202. The offices of guardian and protutor can not be renounced unless for a lawful cause duly proven. A person managing the business of a millTr, although not appointed as guardian. 35 ART. 203. The municipal judges of the places in which persons subject to guardianship reside shall provide for their care and that of their personal property until a guardian is appointed, when there is no other person charged with these duties under the law. Should they not do so they shall be liable for the damages suffered by minors or by incapacitated persons by reason thereof. ART. 204. Guardianship is conferred1. By will. 2. By law. 3. By the family council. ART. 205. The guardian shall not enter upon the discharge of his duties until his appointment has been recorded in the registry of guardianships. CHAPTER SECOND. Testamentary guardianship. ART. 206. The father may appoint a guardian and a protutor for his minor children or for those of age who are incapacitated, be they legitimate or acknowledged natural, or for any of his illegitimate children whom he is obliged to support, according to article 139. The mother has the same privilege, but if she has contracted a second marriage the appointment made by her for the children of her first marriage shall not be valid without the approval of the family council. In any case it shall be necessary that the person appointed guardian or protutor be not subject to the authority of any other person. ART. 207. A guardian may also be appointed for minors or incapacitated persons by the person leaving them an inheritance or an important legacy. The appointment, however, shall not be valid until the family council has decided to accept the inheritance or legacy. ART. 208. The father as well as the mother may appoint a guardian for each one of their children, and make different appointments in order that the appointees may substitute one another. In case of doubt, there shall be understood that a single guardian has been appointed for all the children, and the position shall be conferred upon the first of those named in the appointment. ART. 209. If different persons should have appointed a guardian for the same minor, the position shall devolve upon: 1. The one designated by the father or by the mother. 2. The one appointed by the stranger who has made the minor or incapacitated person his heir, if the amount of the inheritance is important. 3. The one who has been designated by the person leaving an important legacy. If there is more than one guardian in any of the cases of Nos. 2 and 3 of this article, the family council shall declare which one is to be preferred. 36 ART. 210. When a guardian is in the discharge of his duties and the one appointed by the father appears, the guardianship shall immediately be transferred to the latter. If the guardian who appears is the one. appointed by a stranger, included in numbers 2 and 3 of the preceding article, he shall limit himself to the administration of the property of the person who appointed him until the incumbent guardian vacates. CHAPTER THIRD. Legitimate guardianship. SECTION FIn sT.-Guardianship of minors. ART. 211. Legitimate guardianship of minors, not emancipated, appertains solely1. To the paternal grandfather. 2. To the maternal grandfather. 3. To the paternal and maternal grandmothers, in the same order, while they remain widows. 4. To the eldest of the male brothers of full blood, and, in the absence of the latter, to the eldest of the brothers on the paternal or maternal side. Tlhe guardianship referred to in this article does not apply to illegitimate children. ART. 212. Heads of foundling institutions are the guardians of those kept and educated therein. The representation in court of such officials as guardians shall be assumed by the department of public prosecution. SECTION SECOND. Guardianship of the insane and of the deaf and dumb. ART. 213. No guardians shall be appointed for insane, demented, and deaf and dumb persons of age without a previous declaration to the effect that they are incapable of managing their property. ART. 214. This declaration may be asked for by the spouse and by the relatives of the person presumed to be incapacitated who may have rights to succeed him in case of intestacy. ART. 215. The department of public prosecution must demand it: 1. When the person in question is a raving maniac. 2. When none of the persons mentioned in the preceding article exists, or when they do not make use of the privilege granted them therein. 3. When the spouse and the heirs of the person presumed to be incapacitated are minors or lack the personality necessary in order to appear in court. In all these cases the court shall appoint a next friend for the person presumed to be incapacitated, who does not wish or can not defend himself. In all other cases the department of public prosecution shall defend them. 37 ART. 216. The courts, before declaring the incapacity, shall hear the family council and shall personally examine the persons complained of as incapacitated. ART. 217. The relatives who have requested the declaration of incapacity can not give information to the court as members of the family council; but they have a right to be heard by the latter when they demand it. ART. 218. The declaration of incapacity shall be made summarily. The one which refers to the deaf and dumb shall fix the extent and limits of the guardianship according to their degree of incapacity. ART. 219. Against the decrees terminating the proceedings for incapacity the interested parties may institute an ordinary suit. The next friend of the incapacitated person shall, however, require special authorization therefor from the family council. ART. 220. The guardianship of the insane and of the deaf and dumb appertains: 1. To the spouse not legally separated. 2. To the father, and, in a proper case, to the mother. 3. To the children. 4. To the grandparents. 5. To the brothers and to the unmarried sisters, with due preference to the double relationships stated inll No. 4 of article 211. If there are several children, brothers or sisters, the male shall be preferred to the female, and the oldest to the youngest. When there are both paternal and maternal grandparents, the male shall also be preferred; and in case they are of the same sex, those of the paternal line. SECTION THIRD. Guardianship of prodigals. ART. 221. The declaration of prodigality must be made in a suit in which both parties were given a hearing. The judgment shall determine the acts which are forbidden to the incapacitated person, the powers which the guardian is to exercise in the name of the former, and the cases in which one or the other is bound to consult the family council. ART. 222. The declaration, referred to in the preceding article, can be demanded only by the spouse and by the compulsory legal heirs of the prodigal, and in exceptional cases by the department of public prosecution, either at its own instance or at that of some relative of the former, when they are minors or incapacitated persons. ART. 223. When the defendant does not appear at the trial he shall be represented by the department of public prosecution, and if the latter be a party thereto, by a next friend appointed by the court, without prejudice to the provisions of the law of civil procedure with regard to proceedings in default. 38 ART. 224. The declaration of prodigality does not deprive the prodigal of the marital and parental authority, nor does it give the guardian any authority over the person of the prodigal. ART. 225. The guardian shall administer the property of the children whom a prodigal may have had from a previous marriage. The wife shall administer her dowry and parapherna, the property of the children in common, and that of the conjugal partnership. She requires j udicial authorization to sell the same. ART. 226. The acts of a prodigal, prior to the request for interdiction, can not be contested on account of prodigality. ART. 227. The guardianship of the prodigal appertains1. To the father, and, in a proper case, to the mother. 2. To the paternal and maternal grandparents. 3. To the eldest of the emancipated male children. SECTION FOURTH. Guardianship of persons suffering interdiction. ART. 228. When the judgment in which a penalty of interdiction is imposed, is final, the department of public prosecution shall demand that articles 203 and 293 be complied with. Should the representative of said department not do so he shall be liable for the damages and injuries caused thereby. The spouse and the intestate heirs of him so interdicted may also demand it. ART. 229. This guardianship shall be limited to the administration of the property and to the representation in court of the interdicted person. The guardian of the interdicted person shall be obliged, furthermore, to care for the person and property of the minors or incapacitated persons who are under the authority of the person subject to interdiction, until another guardian is provided for them. The wife of the interdicted person shall exercise the parental authority over their common children while the interdiction lasts. If she is a minor she shall act under the direction of her father and, in a proper case, that of her mother, and in the absence of both, that of her guardian. ART. 230. The guardianship of those suffering interdiction is granted in accordance with the order established in article 220. CHAPTER FOURTH. Guardianship by appointment. ART. 231. Should there be neither testamentary guardians, nor persons called by law to the exercise of a vacant guardianship, it is the duty of the family council to elect the guardian in all the cases mentioned in article 200. 39 ART. 232. The municipal judge who neglects to call a meeting of the family council in any case in which a guardian must be provided for minors or incapacitated persons, shall be liable for the damage or injury caused by his negligence. CHAPTER FIFTH. Protutors. ART. 233. The family council is entitled to appoint a protutor when he has not been appointed by those who have a right to elect a guardian for minors. ART. 234. The guardian can not begin to exercise guardianship until a protutor has been appointed. If he fails to apply for this appointment, lie shall be removed from the guardianship and shall be liable for the damages suffered by the minor. ART. 235. The appointment of a protutor shall not be given to a relative of the same line as the guardian. ART. 236. The protutor shall1. Supervise the inventory of the property of the minor and the constitution of the bond of the guardian, when proper. 2. Enforce the rights of the minor in and out of court whenever they are opposed to the interests of the guardian. 3. Call the attention of the fiamily council to thle management of the guardian, whenever he may consider it prejudicial to the person or to the interests of the minor. 4. Call a meeting of the family council for the appointment of a new guardian when the guardianship is vacant or has been abandoned. 5. Discharge the other duties provided by law. The protutor shall be liable for the damages:ind injuries caused to the minor by his omission or negligence in complying with such duties. The protutor may attend the deliberations of the family council and take part therein, but he has no right of vote. CHAPTER SIXTH. Persons disqualified to be guardians and protutors and removal of the same. ARTICLE 237. The following can not be guardians or protutors: 1. Those subject to guardianship. 2. Those who have been punished for the crimes of robbery, theft, fraud, forgery, corruption of minors, or public scandal. 3. Those condemned to any corporeal punishment, while they remain under sentence. 4. Those who have been legally removed from a prior guardianship. 5. Persons of bad conduct, or those having no visible means of support. 6. Bankrupts and insolvents, not disclharged. 7. Women, with the exception of the cases in which they are expressly designated by law. 40 8. Those who, at the time of taking charge of the guardianship, have a lawsuit pending with the minor in regard to his civil status. 9. Those in litigation with the minor ill regard to the ownership of his property, unless the father and, in a proper case, the mother, being aware thereof, have disposed otherwise. 10. Those owing the minor large sums, unless they have been aplointed by the father and, in a proper case, by the mother, with knowledge of the debt. 11. The relatives mentioned in the second paragraph of article 293, and the testamentary guardians who may not have fulfilled the obligation imposed upon them by said article. 12. Professed members of monastic orders. 13. Foreigners not residing in Spain. ART. 238. The following shall be removed from guardianship: 1. Those who, after having qualified, are included in one of the cases of incapacity mentioned in numbers 1, 2, 3, 4, 5, 6, 8, 12, and 13 of the foregoing article. 2. Those who have assumed the administration of the guardianship without calling the family council nor having asked for the appointment of a protutor, or without having given bond, in a proper case, and not having recorded the mortgage security. 3. Those who have not made the inventory within the period and in the manner prescribed by law or have not made it faithfully. 4. Those who have not behaved properly in the discharge of the guardianship. ART. 239. The family council shall not declare the incapacity of guardians and protutors or order their removal without summoning and hearing them if they appear. ART. 240. After the incapacity has been declared or the removal has been ordered by the family council the decision shall be considered final, and the vacant guardianship shall be filled if the guardian does not institute his claims before the court within the fifteen days following that on which the decision was communicated to him. ART. 241. When the guardian institutes a judicial suit the council shall litigate it, at the expense of the minor; but the members thereof may be personally adjudged to pay the costs, if they have acted with well-known malice. ART. 2 2. When the decision of the family council is favorable to the guardian, and has been unanimously adopted, no remedy whatsoever shall be entertained against it. ART. 243. If, by reason of incapacity, the guardian should not enter upon the discharge of his duties, the family council shall attend to the duties of the guardianship until a final decision is adopted with regard to the obstacle. If the guardian has already entered upon the discharge of his duties, and the family council declares his incapacity or orders his removal, the 41 decisions it may adopt to provide for the duties of the guardianship, in case of litigation, shall not be carried out without previous judicial approval. CHAPTER SEVENTH. Excuses for not accepting guardianship and protutorship. ART. 244. The following may excuse themselves from guardianship and protutorship: 1. The ministers of the Crown. 2. The presidents of the colegislative houses, of the council of state, of the supreme court, of the supreme council of war and navy, and of the court of accounts (of the Kingdom. 3. Archbishops and bishops. 4. Associate justices, judges, and officials of the department of public prosecution. 5. Those who exercise authority immediately depending on the Government. 6. Military men in active service. 7. Clergymen in charge of parishes. 8. Those having under their authority five legitimate children. 9. Those who are so poor that they can not attend to the guardianship without impairing their livelihood. 10. Those who in consequence of continuous ill health or because of inability to read or write can not well fulfill the duties of the charge. 11. Persons over sixty years of age. 12. Persons who are already guardians or protutors of another person. ART. 245. Those who are not relatives of the minor or incapacitated person, are not obliged to accept the guardianship, if, within the territory of the court appointing the guardian, there are relatives within the sixth degree who may discharge said duties. ART. 246. The person excused, may, at the request of the guardian or protltor, be compelled to accept the guardianship as soon as the cause for the exemption has ceased to exist. ART. 247. An excuse, which has not been given before the family council at the meeting held for the purpose of deciding upon the guardianship, shall not be admitted. If the guardian was not present at the meeting of the council, or was not previously informed of his appointment, he must make the excuse within the ten days following the date on which he has been notified thereof. ART. 248. If the causes of exemption should be subsequent to the acceptance of the guardianship, the period for making them shall begin to be counted from the day on which the guardian may have had knowledge thereof. ART. 249. The resolution by which the family council rejects an excuse may be impugned before the courts within the period of fifteen days. 42 The resolution of the family council shall be enforced by the same at the expense of the minor; but if it should be confirmed, the person instituting the suit shall be adjudged to the payment of the costs. ART. 250. During the pendency of the suit to be excused the person instituting the same shall be obliged to exercise the guardianship. Should he not do so, the family council shall appoint some person to substitute him, and the person substituted shall be liable for the management of the substitute in case the excuse is not accepted. ART. 251. The testamentary guardian who excuses himself from the guardianship shall lose whatever may have been voluntarily left him by the person who appointed him. CHAPTER EIGHTH. Bonds of guardians. ART. 252. A guardian before assuming the guardianship shall give bond as security for a faithful discharge of his duties. ART. 253. The bond must be secured either by a mortgage or by a pledge. A personal bond shall be accepted only when it is impossible to give one of the above bonds. The security given by the bondsmen shall not prevent the adoption of any decisions advisable for the preservation of the property of the minor or incapacitated person. ART. 254. The bond shall secure: 1. The value of the personal property which may come into the possession of the guardian. 2. The income or profits which the property of the minor or incapacitated person may produce during one year. 3. The profits which the minor may receive from any commercial or industrial enterprise during one year. ART. 255. The guardian may appeal to the courts from the resolutions of the family council fixing the amount or qualifying the bond, but he shall not take possession of his office without having given the bond required of him. ART. 256. Until the bond is executed the protutor shall discharge the administrative functions which the family council may consider indispensable for the safe-keeping of the property and the collection of its proceeds. ART. 257. The mortgage bond shall be recorded in the Registry of Property. The pledge bond shall be constituted by the deposit of securities or bonds in the public institutions authorized for this purpose. ART. 258. The record or deposit shall be demanded: 1. By the guardian. 2. By the protutor. 3. By any of the members of the family council. Those not doing so shall be liable for the loss and damage by reason thereof. 43 ART. 259. The bond may be increased or reduced, during the exercise of the guardianship, according to the fluctuations suffered by the capital of the minor or incapacitated person and by the securities of which the bond is constituted. The bond can not be totally canceled until after the accounts of the guardianship are approved and the guardian has extinguished all the liabilities of his management. ART. 260. The following are exempted from giving bond for guardianship: 1. The father; the mother, and the grandparents, in the cases in which they are designated to the guardianship of their descendants. 2. The testamentary guardian, released by the father, or by the mother in a proper case, from this obligation. This exception shall cease when, subsequently to his apl)ointment, causes not considered by the testator should arise which make the bond necessary, in the opinion of the family council. 3. A guardian appointed, without requiring bond, by a stranger who may have made the minor or incapacitated person his heir or left him an important legacy. In such case the exemption shall be limited to the property or income of which the inheritance or legacy consists. CHAPTER NINTH. Exercise of the guardianship. ART. 261. The family council shall give possession to the guardians and protutors. ART. 262. The guardian represents the minor or incapacitated person in all civil acts, with the exception of those which the lattet may execute personally by express provision of law. ART. 263. Minors and incapacitated persons subject to guardianship owe respect and obedience to the guardian. He may punish them in moderation. ART. 264. The guardian is obliged1. To support and educate the minor or incapacitated person in accordance with his condition and with strict subjection to the orders of his or her parents, or, in the absence of the latter, to those which the family council may have adopted. 2. To endeavor, in any manner whatsoever possible, with the means of the insane, demented, or deaf and dumb to acquire or recover their capacity. 3. To make an inventory of the property which the guardianship may cover within the period fixed for this purpose by the family council. 4. To administer the estate of the minor or incapacitated person with the diligence of a good father of a family. 5. To ask at the proper time the authorization of the family counlcil for all that he can not do without it. 6. To request the assistance of the protutor in all the cases in which the law requires it. 44 ART. 265. The inventory shall be made with the assistance of the protutor and in the presence of two witnesses selected by the family council. The latter shall decide, according to the importance of the estate, if the inventory is, in addition, to be authorized by a notary. ART. 266. The jewelry, valuable personal property, public securities, and commercial and industrial securities, which, in the judgment of the family council should not be in the possession of the guardian, shall be deposited in an institution established for this purpose. The other personal property and chattels, if not appraised, shall be appraised by experts appointed by the family council. ART. 267. The guardian, who, having been summoned for this purpose through a notary by the protutor or by the witnesses, should not enter in the inventory the credits he holds against the minor, shall be understood as renouncing them. ART. 268. When the will of the person who appointed the guardian should make no mention of the allowance for support of the minor or incapacitated person, the family council, in view of the inventory, shall decide the part of the income or profit which shall be inverted therein. This resolution may be modified in proportion to the increase or decrease of the inheritance of the minor or incapacitated person or when the condition of the latter changes. ART. 209. The guardian requires the authority of the family council: 1. To impose on the minor the punishments referred to in number 2 of article 155, and in article 156. 2. To give to the minor a particular profession or trade when this has not been decided by the parents, and to modify the provisions they may have adopted. 3. To place the incapacitated person in a sanatorium, unless the guardianship is exercised by the father, the mother, or by a son. 4. To continue the commerce or industry in which the incapacitated person or his ascendants or those of the minor may have been engaged. 5. To alienate or encumber the property constituting the capital of minors or incapacitated persons, or to make contracts or execute instruments subject to record. 6. To invest any money remaining each year, after meeting the obligations of the guardianship. 7. To proceed with the distribution of the inheritance or of any other thing which the minor or incapacitated person may possess in common. 8. To withdraw from deposit any sum producing interest. 9. To loan and borrow money. 10. To accept without the benefit of inventory any inheritance or to repudiate the latter or the gifts. 11. To incur extraordinary expenses in connection with the estates, the administration of which is included in the guardianship. 12. To compromise and submit to arbitration the questions in which the minor or incapacitated person may be interested. 45 13. To institute suits in the name of persons subject to guardianship, and to have recourse by appeal and cassation against the judgments in which they may have been rendered. Complaints and recourses in verbal suits are excepted. ART. 270. The family council can not authorize the guardian to alienate or encumber the property of the minor or incapacitated person unless it be for reasons of necessity or utility, which the guardian shall duly prove. This authority shall be exercised in regard to specified things. ART. 271. The family council, before granting authorization to encumber real property or constitute property rights in favor of third persons, may previously hear the opinion of experts with regard to the conditions of the encumbrance and possibilities of bettering it. ART. 272. If real property, rights subject to record, jewelry, or personal property the value of which is over 4,000 pesetas, is in question, the alienation thereof shall be made at public auction with the intervention of the guardian or protutor. Securities quoted on exchange, public as well as commercial or industrial, shall be sold by an exchange agent or by a commercial broker. ART. 273. The guardian is liable for the legal interest on the capital of the minor, if by his omission or negligence it should remain unproductive or without investment. ART. 274. The authorization to settle or compromise through arbitration must be requested in writing, the guardian stating all the conditions and advantages of the transaction. The family council may receive the report of one or more lawyers, according to the importance of the matter, and shall grant or refuse such authorization. In case of granting it, it shall be stated in the instrument. ART. 275. Guardians are forbidden1. To give or renounce things or rights belonging to the minor or incapacitated person. Gifts made by reason of marriage by minors, with the approval of the persons who are to give their consent to the marriage, shall be valid, provided they do not exceed the limits fixed by law. 2. To collect from the debtors of the minor or incapacitated person, without the intervention of the protutor, amounts over 5,000 pesetas, unless they consist of interests, profits, or income. Payments made without this requisite shall be valid with regard to the debtors, only when they prove that the amount received was invested for the benefit of the minor or incapacitated person. 3. To pay, without the intervention of the protutor, any sums due themselves. 4. To buy themselves, or through another person, the property of the minor or incapacitated person, unless they have been expressly authorized thereto by the family council. 46 ART. 276. The guardian is entitled to compensation from the property of the minor or incapacitated personWhen it has not been fixed by those who appointed the testamentary guardian; or when the guardians are legitimate or appointed by the court, the family council shall fix it, taking into consideration the amount of the property and the labor entailed in its administration. In no case shall the compensation be less than 4 per cent nor more than 10 per cent of the net income or proceeds of the property. The guardian may appeal to the courts from the decision fixing his compensation. ART. 277. Should the family council maintain its decision, it shall litigate at the expense of the minor or incapacitated person. ART. 278. The guardianship terminates1. When the minor attains the age of twenty-three years, by qualification as to age, and by adoption. 2. By the cessation of the causes giving rise thereto, when incapacitated persons subject to interdiction or prodigals are in question. CHAPTER TENTH. Accounts of the guardianship. ART. 279. Collateral relatives of the minor or incapacitated person, and strangers who have not obtained the appointment of guardian, with the assignment of proceeds for support, shall render to the family council annual accounts of their administration. These accounts, after being examined by the protutor and audited by the council, shall be deposited in the office of the clerk of the court where the guardianship has been registered. If the guardian does not agree to the decision of the council, he may apply to the courts in which the interests of the minor or incapacitated person shall be defended by the protutor. ART. 280. The guardian, who may be replaced by another, shall, as well as his heirs, be obliged to render a general account of his guardianship to the one taking his place, which shall be examined and audited in the manner prescribed in the preceding article. The new guardian shall be liable to the minor for any losses and damages, should he not demand and examine the accounts of his predecessor. ART. 281. When the guardianship terminates, the guardian or his heirs are obliged to render an account of the administration to the person who may have been subject thereto or to his personal or legal representatives. ART. 282. The general accounts of the guardianship shall be audited and passed upon by the family council within a period not exceeding six months. ART. 283. The accounts shall be accompanied by the proper vouchers. The only expenses which need not be proved are the minor ones for which a diligent father of a family does not generally ask a receipt. 47 ART. 284. The expenses of rendering the accounts shall be borne by the minor or incapacitated person. ART. 285. The legal representatives of the minor, or the latter if of age, can not enter into any agreement with the guardian relating to the administration of the guardianship until fifteen days have elapsed since the accounts duly proven were rendered. The family council, without prejudice to the agreements the interested parties may come to after the expiration of this period, shall complain to the courts of any wrong which may have been committed by the guardian in thle exercise of the guardianship. ART. 286. The balance appearing from the general accounts in favor of or against the guardian shall earn legal interest. In the first case, from the time payment is requested of the minor, after the delivery of his property. In the second case, from the date of rendering the accounts, if they were rendered within the legal period, and, if not, from the expiration thereof. ART. 287. The actions, which may mutually be brought by the guardian and the minor by reason of the exercise of the guardianship, are extinguished five years after the termination of the latter. CHAPTER ELEVENTH. IRegistration of guardianships. ART. 288. In the courts of first instance there shall be one or more books in which there shall be entered the guardianships constituted during the year within their respective territories. ART. 289. These books shall be in charge of a judicial clerk, who shall make the entries gratuitously. ART. 290. The record of each guardianship shall contain1. The name, surname, age, and domicile of the minor or incapacitated person, and the extent and limit of the guardianship when the incapacity has been judicially declared. 2. The name, surname, profession, land domicile of the guardian, and a statement as to whether he is a testamentary or legitimate guardian or was appointed by the court. 3. The date on which the guardianship was conferred, and the (lay on which the bond required of the guardian was given, stating, in a proper case, the kind of property in which it was constituted. 4. The allowance for support which may lhave been assigned the minor or incapacitated person or the statement that proceeds for support have beemi allowed. ART. 291. At the foot of each. record there shall be entered at the beginning of the judicial year whether the guardian has rendered an account of his administration, in case he is obliged to do so. ART. 292. The judges shall examine these registries every year, and shall take the necessary stej)s in each case to protect the interests of the persons subject to guardianship. 48 TITLE X. THIE FAMILY COUNCIL. SECTION FIRST.-JIanner of constituting the family council. ART. 293. If the department of public prosecution or the municipal judge should have knowledge that in the territory under their jurisdiction there exists any of the persons referred to in article 200, the former shall request and the latter shall order, of his own motion, or at the instance of the public prosecutor, according to the cases, the constitution of a family council. The following are obliged to advise the municipal judge of any act which gives rise to a guardianship, as soon as they have knowledge thereof: the testamentary guardian, the relatives called to the legitimate guardianship, and those who, according to law, are members of the council; being liable, should they not do so, to indemnify losses and damages. The municipal judge shall cite the persons who are to compose the family council, informing them of the purpose of the meeting, and the day, hour, and place where it shall be held. ART. 294. The family council shall be composed of the persons whom the father, or the mother, in a proper ease, may have designated in the will, and, in the absence thereof, of the male ascendants and descendants, and of the brothers and husbands of the living sisters of the minor or incapacitated person, whatever their number may be. If it is less than five, this number shall be made up with the nearest male relatives of both the paternal and maternal lines; and, should there not be any or should they not be bound to form part of the council, the municipal judge shall appoint in their place honest persons, preferringthe friends of the parents of the minor or incapacitated person. Should there be no ascendants, descendants, brothers, or husbands of living sisters, the municipal judge shall form the council with the five nearest male relatives of the minor or incapacitated person, and, should there not be the full number of relatives, or any, he shall substitute them with honest persons, preferring always the friends of the parents. ART. 295. In case of equal degree of relationship, preference shall be given in forming the family council to the oldest relative. ART. 296. The courts may remedy the nullity which may arise by reason of the nonobservance of the preceding articles, if not due to fraud nor injuring the person or property of the person subject to guardianship, but correcting the error committed in the formation of the council. ART. 297. The relatives of the minor or incapacitated person designated by law, who do not reside within a radius of 30 kilometers of the court having jurisdiction over the guardianship, shall not be forced to form part of the council; but they shall be members of the council 49 if they voluntarily appear to accept the duty, for which purpose they must be cited by the municipal judge. ARIT. 298. The causes which excuse, disqualify, and give rise to the removal of guardians and protutors are applicable to the members of the family council. Neither can the persons excluded in their wills from this duty by the father or by the mother, in a proper case, be members thereof. ART. 299. The guardian and protutor can not be at the same time members of the family council. ART. 300. The meeting for the formation of the family council shall be presided over by the municipal judge. The persons cited are obliged to appear in person or through a special attorney, who can never represent more than one person. Should they not appear, the judge may impose upon them a fine not to exceed 50 pesetas. ART. 301. After the family council has been constituted by the municipal judge it shall proceed to prescribe all the measures necessary to take care of the person and property of the minor or incapacitated person and to constitute the guardianship. ART. 302. The family council for natural children shall be constituted under the same rules as that for legitimate children, but appointing as members thereof the relatives of the father or mother who may have acknowledged them. That of other illegitimate children shall be composed of the public prosecutor, who shall be the president, and four honest neighbors. ART. 303. The administration of every charitable institution shall have over the orphans in the same who are minors all the powers corresponding to guardians and to the family council. SECTION SECOND.-Method of procedure by the family council. ART. 304. The member elected by the other members shall be the president of the council. It is the duty of the president1. To call a meeting of the council whenever he considers it advisable, or at the request of the members, of the guardian, or of the protutor, and to preside over its deliberations. 2. To draft and to give the reasons for the resolutions, recording the opiinion of each member, requiring said members to authenticate the mliinutes with their signatures. 3. To carry out the resolutions. ART. 305. The family council shall not adopt resolutions on matters submitted to them unless three members at least are present. Resolutions shall always be adopted by a majority of votes. The vote of the president shall decide in case of a tie. ART. 306. The members of the family council are obliged to attend the meetings of the same to which they may have been called. Should 6433 —4 50 they not attend, nor give any legitimate excuse, the president of the council shall inform the municipal judge thereof, who may impose on them a fine not exceeding 50 pesetas. ART. 307. No member of the family council shall attend its meetings, nor cast a vote, when a matter is in question in which he, his descendants, ascendants, or spouse has any interest, but he may be heard if the council deems it advisable. ART. 308. The guardian and the protutor are obliged to attend the meetings of the family council whenever cited, but shall have no vote. They may also attend if the council meets at their request. The person subject to guardianship has a right to attend and to be heard, provided he is over 14 years of age. ART. 309. The family council shall take cognizance of matters of their competency, in accordance with the provisions of this code. ART. 310. The members who may have dissented from the majority in voting on any resolution, as well as the guardian or protutor, or any relative of the minor or other person interested in the decision, with the exception of the case of article 242, may appeal to the judge of first instance. ART. 311. At the conclusion of the guardianship, and the consequent dissolution of the family council, the latter shall deliver the minutes of its sessions to the person who was subject to guardianship, or to the person representing his rights. ART. 312. The members of the family council are liable for the dam-' ages which the person subject to guardianship may suffer by reason of their malice or culpable negligence. The members who may have dissented from the resolution causing the injury shall be exempted from this liability. ART. 313. The family council shall be dissolved in the same cases in which the guardianship is extinguished. TITLE XI. Emancipation and majority. CHAPTER FIRST. Emancipation. ART. 314. Emancipation takes place: 1. By the marriage of the minor. 2. By majority. 3. By concession of the father or mother exercising the parental authority. ART. 315. Marriage produces legal emancipation with the limitations mentioned in article 59 and in rule 3 of article 50. ART. 316. The emancipation, treated of in the third paragraph of article 314, shall be granted by a public instrument or by appearance 51 before the municipal judge, which shall be recorded in the civil registry, and in the meantime shall have no effect with regard to third persons. ART. 317. Emancipation qualifies the minor to control his person and property, as if of age; but, until he attains his majority, the person emancipated can not borrow money nor encumber or sell real property without the consent of his or her father, and, in the absence of the latter, that of the mother, and, in the absence of both, without that of a guardian. Neither can he nor she appear in court without the attendance of said persons. ART. 318. In order that the emancipation may take place by concession of the father or of the mother, it shall be necessary that the minor be 18 years of age and consent thereto. ART. 319. After the emancipation has been granted it can not be revoked. CHAPTER SECOND. Majority. ART. 320. Majority commences on attaining 23 years of age. A person of age is qualified for all acts of civil life, with the exceptions established by this code in special cases. ART. 321. Notwithstanding the provisions of the foregoing article, unmarried daughters of age, but under 25 years, can not leave the parental home without permission of the father or mother in whose company they live, unless to marry or when the father or mother have contracted another marriage. ART. 322. The orphaned minor may obtain the benefit of majority by concession of the family council with the approval of the presiding judge of the territorial audiencia of the district, after hearing the public prosecutor. ART. 323. For the concession and approval mentioned in the preceding article it is necessary1. That the minor be over eighteen years of age. 2. That he or she consent to the qualification. 3. That it is considered advantageous to the minor. The qualification shall be recorded in the registry of guardianships and in the civil registry. ART. 324. The provisions of article 317 shall be applicable to the millor who has obtained the qualification of majority. TITLE XII. Registry of civil status. ART. 325. Acts relating to the civil status of persons shall be recorded in the registry devoted to that purpose. ART. 326. The registry of civil status shall include the records or 52 entries of births, marriages, emancipations, acknowledgments and legitimations, deaths, naturalizations, and residences, and shall be in charge of the municipal judges or other officials of the civil order in Spain, and of consular or diplomatic agents in foreign countries. ART. 327. The records in the registry shall be evidence of the civil status, and any other evidence can be admitted only when such records have never existed or the books of the registry should have disappeared or when a litigation is instituted before the courts. ART. 328. It shall not be necessary that a newly born child be presented to the official in charge of the registry for the record of birth, the statement of the person obliged to make it being sufficient. This statement shall include all the conditions required by law and shall be signed by its author or by two witnesses, at his request, should he not be able to do so. ART. 329. In canonical marriages it shall be the obligation of the contracting parties to furnish the official representing the State who attends the ceremony all the data required for its record in the civil registry. Those referring to banns, impediments, and their disposition are excepted and not required to be entered in the registry. ART. 330. Naturalizations shall have no legal effects whatsoever until they are entered in the registry, whatever may be the evidence proving them and the date on which they have been granted. Art. 331. Municipal judges and those of first instance, in a proper case, may punish the violations of the provisions relating to the civil registry, when they do not constitute a crime or offense, with a fine of 20 to 100 pesetas. Art. 332. The law of June 17, 1870, shall continue in force in so far as not modified by the preceding articles. BOOK SECOND. PROPERTY, OWNERSHIP, AND ITS MODIFICATIONS. TITLE I. Classification of property. PRELIMINARY PROVISION. ART. 333. All things which are or may be the subject of appropriation are considered either as personal or real property. CHAPTER FIRST. Real property. ART. 334. Real property consists of1. Lands, buildings, roads, and constructions of all kinds adherent to the soil. 2. Trees and plants and ungathered products while they are not separated from the land and form an integral part of the real property. 3. All that is attached to real property in a fixed manner, so that it can not be separated therefrom without breaking the matter or injuring the object. 4. Statues, reliefs, paintings, or other useful or ornamental objects placed in buildings or on lands by the owner of the real estate in such a manner as to show the intention of attaching them permanently to the estate. 5. Machinery, vessels, instruments, or utensils, destined by the owner of the estate to the industry or work he may carry on in a building or estate and which are directly required to satisfy the necessities of the said work. 6. Vivaries for animals, pigeon houses, beehives, fish ponds, or beds for similar purposes, when the owner has placed or preserves them for the purpose of keeping the same attached to the estate and forming a permlarient part thereof. I. Manure destined to the cultivation of an estate, when it is on the ground in which it is to be employed. 8. Mines, quarries, and dumps, while attached to the soil, and running or stagnant waters. 9. Docks and constructions, even though floating, the purpose and Coilditions of which are to remain at a fixed place in a river, lake, or on a coast. 10. Administrative concessions for public works, and easements, and other property rights in real estate. 53 54 CHAPTER SECOND. Personal property. ART. 335. Personal property is considered anything susceptible of appropriation and not included in the foregoing chapter, and, in general, all that which can be carried from one place to another without damage to the real estate to which it may be attached. ART. 336. Incomes or pensions, either for life or hereditary, in favor of a person or family, provided they do not encumber real estate with a property lien, as well as alienated offices, contracts for public services, and mortgage loan bonds or certificates are also personal property. ART. 337. Personal property is either consumable (fungibles) or nonconsumable (no fungibles). To the first class belongs that which can not be made use of, by reason of its nature, without consuming it; all other personal property belongs to the second class. CHAPTER THIRD. Property with regard to ownership. ART. 338. Property is of public or private ownership. ART. 339. Property of public ownership is1. That destined to the public use, such as roads, canals, rivers, torrents, ports, and bridges constructed by the State, and banks, shores, roadsteads, and that of a similar character. 2. That belonging exclusively to the State without being for public use and which is destined to some public service, or to the development of the national wealth, such as walls, fortresses, and other works for the defense of the territory, and mines, until their concession has been granted. ART. 340. All other property belonging to the State which has not the conditions stated in the preceding article is considered as private property. ART. 341. Property of public ownership, when no longer devoted to general uses or to the requirements of the defense of the territory, shall become a part of the State property. ART. 342. Property of the royal patrimony is governed by its special law, and in what is not provided for therein by the general provisions established by this code regarding private property. ART. 343. The property of provinces and of towns is divided into property for public use and patrimonial property. ART. 344. Property for public use in provinces and in towns comprises the provincial and town roads, the squares, streets, fountains, and public waters, the promenades, and public works of general service supported by the said towns or provinces. All other property possessed by either is patrimonial, and shall be governed by the provisions of this code, unless otherwise prescribed inl special laws. 55 ART. 345. Besides the patrimonial property of the State, of provinces, and of municipalities, that belonging to private parties, individually or collectively, is property of private ownership. PROVISIONS COMMON TO THE THREE PRECEDING CHAPTERS. ART. 346. Whenever by provision of law or by an individual declaration the expression real property or personal property is used, there shall be understood as included in the same, respectively, that enumerated in chapter first and in chapter second. Whenever the word furniture (muebles) alone is used there shall not be understood as included therein money, credits, commercial securities, bonds, jewels, scientific or artistic collections, books, medals, arms, clothing, horses or carriages and their accessories, grain, liquids (caldos), and merchandise or other things, the principal use of which is not to furnish or ornament residences, with the exception of the case in which, by the context of the law or of the individual provision, the contrary clearly appears. ART. 347. Whenever, in a sale, legacy, or gift or any other provision in which reference is made to personal or real property, its possession or ownership is transferred with everything it may include, there shall not be understood as comprised in the transfer money, bonds, credits, and actions, the titles to which are contained in the thing transferred, unless the intention of including such securities and rights in the transfer is obvious. TITLE II. Ownership. CHAPTER FIRST. Ownership in general. ART. 348. Ownership is the right to enjoy and dispose of a thing, without further limitations than those established by law. The owner has a right of action against the holder and the possessor of the thing to recover the same. ART. 349. No one shall be deprived of his property, except by competent authority and with sufficient cause of public utility, always after the propei indemnity. If this requisite has not been fulfilled the judges shall protect, and in a proper case, replace the condemned party in possession. ART. 350. The owner of land is the owner of its surface and of what is under it, and he may establish thereon the works, plantations, and excavations which he may desire, reserving the easements, and subject to the provisions of the mining and water laws and of the police regulations. ART. 351. Hidden treasure belongs to the owner of the land on which it is found. 56 However, when the discovery is made on property belonging to another or to the State, and by chance, one-half thereof shall be awarded the finder. If the goods discovered are of interest to the sciences or arts, the State may acquire them at their just value, which shall be divided as prescribed. ART. 352. By "treasure" is understood, for legal purposes, hidden or unknown deposits of money, jewelry, or other precious objects, the legal ownership of which does not appear. CHAPTER SECOND. Right of accession. GENERAL PROVISION. ART. 353. Ownership of property gives a right by accession to all that is produced thereby or which is united to or incorporated therein naturally or artificially. SECTION FIRST.-Right of accession with regard to the production of property. ART. 354. The following belong to the owner: 1. Natural fruits. 2. Industrial fruits. 3. Civil fruits. ART. 355. Natural fruits are the spontaneous products of the soil, and the brood and all other produce of animals. Industrial fruits are those produced by land of any kind by reason of cultivation or labor. Civil fruits are rents of buildings, proceeds from leases of lands, and the amount of perpetual life, or other similar incomes. ART. 356. The receiver of fruits is obliged to pay the expenses incurred by a third party in their production, gathering, and preservation. ART. 357. Fruits which are in sight or appearing are considered inatural or industrial. With regard to animals, it is sufficient if they are in the womb of the mother, though unborn. SECTION SECOND.-Rights of accession with regard to real property. ART. 358. Whatever is constructed, planted, or sown on another's property, and the improvements or repairs made thereon, belongs to the owner of the same, subject to the provisions contained in the following articles. ART. 359. All works, sown grounds, and plantings are presumed to be made by the owner and at his expense, unless the contrary is proven. 57 ART. 360. The owner of the soil who shall make thereon, in person or through another, plantings, constructions, or works, with material belonging to another person, is obliged to pay their value; and should he have acted in bad faith he shall, furthermore, be obliged to indemnify for loss and damage. The owner of the material shall have a right to remove it only in case he can do so without injury to the work constructed or without destroying the plantings, constructions, and work done. ART. 361. The owner of the land on which building, sowing, or planting is done in good faith shall lhave a right to appropriate as his own the work, sowing, or planting after the indemnity mentioned in Arts. 453 and 454, or, to oblige the person who has built or planted, to pay to him the value of the land and to force the person who sowed to pay the proper rent. ART. 362. He who builds, plants, or sows in bad faith on another's land loses what he has built, planted, or sown, without right to indemnity. ART. 363. The owner of the land on which anyone has built, planted, or sown in bad faith may demand the demolition of the work or the removal of the planting or sowing and the restoring of everything to its original condition at the expense of the person who built, planted, or sowed. ART. 364. When there has been bad faith, not only on the part of the person who built, sowed, or planted on another's land, but also on the part of the owner of the latter, the rights of both shall be the same as if they had acted in good faith. Bad faith on the part of the owner is understood whenever the act has been executed in his presence with his knowledge and tolerance and without objection. ART. 365. If the material, plants, or seed belong to a third person, who has not acted in bad faith, the owner of the land shall be liable subsidiarily for their value, but only in case the person who used them has no means to pay therefor. This provision shall not be applicable if the owner makes use of the rights granted him by Art. 363. ART. 366. The accretions which banks of rivers may gradually receive from the effects of the currents belong to the owners of the estates bordering thereon. ART. 367. The owners of estates bordering on ponds or lakes do not acquire the land left dry by the natural decrease of waters, nor lose those inundated in extraordinary floods. ART. 368. When the current of a river, creek, or torrent detaches from an estate fronting thereon a known portion of land and transfers it to another estate, the owner of the estate to which the detached part belongs retains the ownership thereof. ART. 369. Trees uprooted and carried away by currents of waters 58 belong to the owner of the land upon which they are carried, if the former owners do not claim them within one month. If the latter claim them, they must pay all the expenses caused by their collection or security in a safe place. ART. 370. The beds of rivers which remain abandoned because the course of the water has naturally changed belong to the owners of the riparian lands throughout their respective lengths. If the abandoned bed divided estates belonging to different owners, the new dividing line shall run at equal distance therefrom. ART. 371. Islands which may form in the waters adjacent to the coast of Spain and in navigable rivers belong to the State. ART. 372. When in a navigable river, which changes its course by natural causes, a new bed is opened through a private estate, this bed shall be of public ownership. The owner of the estate shall recover it if the waters leave it again dry naturally or through works legally authorized for the purpose. ART. 373. Islands which, through successive deposits in layers of descending alluviums, form themselves in rivers belong to the owners of the banks or shores nearest to each of them, or to those of both shores if the island is in the middle of the river, being then divided longitudinally in halves. If an island thus formed be farther from one bank than from the other, the owner of the nearest bank shall be the sole owner of the same. ART. 374. When the current of a river runs into branches, leaving an estate or part thereof isolated, the owner of the same retains his ownership. He also retains it if a portion of the land is detached by the current. SECTION THIRD.-Right of accession with regard to personal property. ART. 375. When two articles of personal property belonging to different persons are united in such manner as to form a single object, without being attended by bad faith, the owner of the principal article shall acquire the accessory one upon indemnifying its former owner for its value. ART. 376. When two things are incorporated, the principal one shall be considered that to which the other has been united as an ornament or for its use and perfection. ART. 377. If it be not possible to determine by the preceding rule which of the two incorporated articles is the principal one, that of the greater value shall be considered as such; and between two articles of equal value, that of the greater volume. In paintings and sculpture, in writings, printed matter, prints, engravings, and lithographs, the board, metal, stone, canvas, paper, or the parchment shall be considered as accessories. ART. 378. When articles united can be separated without injury, their respective owners may demand that they be separated. However, when the article united for the use, embellishment, or 59 perfection of the other is much more pre(ious than the l)riIlcipal one, the owner of the former may demand its separation, even though the article to which it is united may suffer thereby. ART. 379. When the owner of the accessory thing has united it in bad faith, he shall lose the article incorporated and shall be obliged to indemnify the owner of the principal one for the damages he may have suffered. When the person who acted in bad faith is the owner of the principal thing, the owner of the accessory one shall have the right to choose between being paid by the former for the value thereof or to have that belonging to him separated, even though it be necessary for such purpose to destroy the principal one, and furthermore, in either case he shall be entitled to indemnity for loss and damage. If any of the owners has made the incorporation with the knowledge and tolerance and without objection from the other, their respective rights shall be determined in the manner provided for such cases where both acted in good faith. ART. 380. Whenever the owner of the material used without his consent is entitled to indemnity, he may demand that such indemnity consist in the delivery to him either of material equal in quality and value in all respects to that employed or the price thereof according to an expert appraisement. ART. 381. If by the will of their owners, two things of identical or different kinds are mixed, or if the mixture occurs accidentally, and if in the latter case can not be separated without injury, each owner shall acquire a right in'proportion to the part belonging to him according to the value of the things mixed or confounded. ART. 382. If by the will of only one of the owners, but in good faith, two things of identical or different kinds are mixed or confounded, the rights of the owners shall be determined by the provisions contained in the preceding article. If the person making the mixture or confusion acted in bad faith, he shall lose the thing belonging to him mixed or confounded, besides being obliged to indemnify the owner of the thing with which he made the mixture for the losses caused thereby. ART. 383. The person who, in good faith, made use wholly or partially of material belonging to another party in making a work of a new kind, may make the work his own upon indemnifying the owner of the material for the value thereof. If the latter is more precious than the work in which it is used, or more valuable, the owner thereof may at his option retain the new thing by paying the price of the work or may claim indemnity for the material. If in the making of the new work there was bad faith, the owner of the material has a right to retain possession of the work without payfig anything to the author, or to claim an indemnity for the value of the material and the losses he may have suffered. 60 CHAPTER THIRD. Surveys and demarcations. ART. 384. Every owner has the right to fix the boundaries of his property by notifying the owners of adjoining estates thereof. Those having property rights enjoy the same privilege. ART. 385. The survey shall be made in accordance with the titles of each owner, and, in the absence of sufficient title, from what may appear from the possession held by the contiguous owners. ART. 386. If the titles do not fix the boundary or area of each owner, and the question can not be decided by the possession or by other means of proof, the demarcation shall be made by dividing the land in dispute in equal parts. ART. 387. If the titles of the contiguous owners show a larger or smaller area than that comprised in the total of said land the excess or lack shall be divided in proportion. CHAPTER FOURTH. Right of inclosing agricultural property. ART. 388. Every owner may inclose or fence in his estates by means of walls, ditches, growing or dead hedges, or in any other manner whatsoever without injury to the easements existing thereon. CHAPTER FIFTH. Unstable buildings and trees about tofall. ART. 389. If a building, wall, column or any other construction is in danger of falling, the owner shall be obliged to demolish it or to construct such props as may be necessary to prevent its fall. Should the owner of the unstable work not do so, the authorities may order it demolished at his expense. ART. 390. When a large tree threatens to fall in such a manner as to cause damage to the estate of another or to travelers on a public or private thoroughfare, the owner of the tree shall be obliged to uproot it and take it away, and should he not do so it. shall be done at his expense by order of the authorities. ART. 391. In the cases of the two foregoing articles, if the tree or building falls, the provisions of articles 1907 and 1908 shall be observed. TITLE III. Community of property. ART. 392. There is community of property when the ownership of a thing or right belongs to different persons undividedly. In the absence of contracts or of special provisions, ownership in common shall be governed by the provisionis of this title.. 61 ART. 393. The share of the participants in the benefits, as well as in the charges, shall be in proportion to their respective interests. The interests belonging to the coowners shall be presumed equal until the contrary is proven. ART. 394. Each coowner may use the things owned in common, provided he uses them in accordance with their object and in such manner as not to injure the interests of the community nor prevent the coowners from utilizing them according to their rights. ART. 395. Every coowner shall have a right to oblige the participants to contribute to the cost of keeping the thing or right held in coTnmon. Only the party renouncing his share in the ownership can exempt himself from this obligation. ART. 396. When the different stories of a house belong to different owners, if the titles of ownership do not specify the manner in which they must contribute to the necessary work, and there is no agreement thereon, the following rules shall be observed: 1. The main and party walls, the roof, and other things used in common shall be in charge of all the coowners in proportion to the value of their stories. 2. Every owner shall pay the cost of maintaining the floor of his story. The expenses connected with the floor of the porch, front door, common yard, and hygienic works, common to all, shall be borne pro rata by all the owners. 3. The stairs from the portal to the first story shall be maintained at the expense pro rata of all the owners, with the exception of the owner of the ground floor; the stairs leading from the first to the second story shall be maintained at the expense of all, excepting the owners of the ground floor and first story, and so on successively. ART. 397. None of the joint owners shall, without the consent of the others, make any change in the common property, even though they should be attended with advantageous results for all. ART. 398. The decision of a majority of the coowners as to the management and better enjoyment of the thing owned in common shall be obligatory. There shall be no majority, unless the resolution has been adopted by the coowners representing a majority of the interests which constitute the object of the community. Should there be no majority, or the resolution of the latter is seriously lrejudicial to the parties interested in the thling owned in common, the Judge, at the instance of a party, shall decree what may be proper, including the appointment of an administrator. When a part of the thing privately belongs to one or more of the part owners and the other part is owned in common, the foregoing provision shall be applicable to the latter only. ART. 399. Every coowner shall have full ownership of his part and in the fruits and benefits derived therefrom, and he therefore may alienate, 62 assign, or mortgage it, and even substitute another person in its enjoyiment, unless personal rights are in question. But the effect of the alienation or mortgage, with regard to the coowners, shall be limited to the share which may be awarded him in the division on the dissolution of the community. ART. 400. No coowner shall be obliged to remain a party to the community. Each of them may ask at any time the division of the thing owned in common. Nevertheless an agreement to keep the thing undivided for a specified length of time, not exceeding ten years, shall be valid. This period may be extended by a new agreement. ART. 401. Notwithstanding the provisions contained in the preceding article, the coowners can not demand a division of the thing owned in common to be made when by so doing they may render it unserviceable for the use to which it was destined. ART. 402. The division of a thing owned in common may be made by the parties in interest or by arbitrators or friendly compromisers, appointed at the will of the coowners. In case the division is made by arbitrators or compromisers, they shall divide it into parts in proportion to the rights of each coowner, avoiding payments of balances in cash in so far as possible. ART. 403. The creditors or assignees of the co-owners may concur in the division of the thing owned in common, and object to any division made without their concurrence. But they can not oppose a division already made, except in case of fraud or when it has been made, despite the formal protest made to prevent it, and reserving always the rights of the debtor or assignee to maintain its validity. ART. 404. If the thing is essentially undividable and the co-owners should not agree that it be awarded to one of them who shall indemnify the others, it shall be sold and the proceeds distributed. ART. 405. The division of property held in common shall not prejudice a third person, who shall retain the rights of mortgage, easements, or any other property rights which may have belonged to him before the division was made. The personal rights of a third person against the community shall also remain in force, notwithstanding the division. ART. 406. The rules relating to the division of an estate shall be applicable to the divisions among the co-owners. TITLE IV. Some special properties. CHAPTER FIRST. Waters. SECTION FIRST.-Ownership of waters. ART. 407. The following are of public ownership; 1. Rivers and their natural beds. 63 2. Continuous or intermittent waters from springs or brooks running in their natural beds and the said beds. 3. Waters rising continuously or intermittently in lands of said public ownership. 4. Lakes and ponds formed by nature on public lands and their beds. 5. Rain waters running through ravines or sandy beaches, the beds of which shall also be public property. 6. Subterranean waters on public lands. 7. Waters found within the zone of operation of public works, even when they are made by a concessionnaire. 8. Waters flowing continuously or intermittently on estates belonging to private parties, to the State, to provinces, or to towns from the moment they leave said estates. 9. The overflow of fountains, sewers, and public institutions. ART. 408. The following are of private ownership: 1. Waters, either continuous or intermittent, rising on private estates as far as they run through them. 2. Lakes and ponds and their beds when formed by nature on said estates. 3. Subterranean waters found on the same. 4. Rain waters falling thereon as long as they remain within their boundaries. 5. The beds of flowing waters, continuous or intermittent, formed by rain water, and those of brooks crossing estates which are not public property. In every drain or aqueduct the water, the bed, the sloping bank, and the side ways are considered as an integral part of the estate or building to which the waters are destined. The owners of estates through or along the boundaries of which the aqueduct passes can allege no ownership over it, nor any right to make use of its bed or side ways, unless they base their claim on title deeds specifying the right or the ownership claimed. SECTION SECOND. —Use of public waters. ART. 409. The use of public waters is acquired1. By administrative concession. 2. By prescription of twenty years. The limits of the rights and obligations of these uses shall be those appearing, in the first case, from the terms of the concession; and, in the second, from the manner and form in which the waters have been used. ART. 410. Every concession of use of waters is understood without prejudice to third parties. ART. 411. The right to make use of public waters is extinguished by the forfeiture of the concession, and by nonuser for twenty years. 64 SECTION THIRD.- Use of waters of private ownership. ART. 412. The owner of an estate containiing a spring or the source of a brook, continuous or intermittent, may use its waters as far as they run through the estate; but the overflow is public and the use thereof is governed by the special law of waters. ART. 413. Private ownership of the beds of rain waters does not give a right to make works and constructions which may divert their course to the prejudice of a third party, nor those the destruction of which by the force of floods, may cause such deviation. ART. 414. No one may enter private property in search of waters or make use of them without permission from their owners. ART. 415. The ownership which the proprietor of an estate has in the waters rising on the same can not prejudice the rights which the owners of lower estates may have legally acquired to their use. ART. 416. Every owner of an estate has a right to construct on his property receptacles for rain water, provided he does not prejudice the public or a third party thereby. SECTION FOURTH.-Subterranean waters. ART. 417. Only the owner of an estate or another person with his permission, may search for subterranean waters thereon. The search for subterranean water on lands of public ownership can only be made with the permission of an administrative authority. ART. 418. Artesian waters, according to the special law of waters, belong to the persons who discover the same. ART. 41 9. When the owner of artesian waters abandons the same to their natural course, they shall be public property. SECTION FOURTH.-General provisions. ART. 420. The owner of an estate on which there are defensive works to check waters, or on which, by reason of the variation of their course, it should be necessary to reconstruct them, is bound, at his option, to make the necessary repairs or constructions or to permit that, without injury to him, they be made by the owners of the estates who suffer or are clearly exposed to suffer damage. ART. 421. The provisions contained in the preceding article are applicable to the cases in which it may be necessary to clear an estate from the material, the accumulation, or fall of which may obstruct the course of waters with injury or danger to a third party. ART. 422. All the owners who participate in the benefits arising front the works, referred to in the two foregoing articles, are obliged to contribute to the cost of their construction in proportion to their interest. Those who by their own fault may have caused the damage shall be liable for the expenses. ART. 423. The ownership and use of waters belonging to corporations or private parties are subject to the law of eminent domain, 65 ART. 424. The provisions of this title shall not prejudice the rights previously acquired nor the private ownership which the owners of waters, drains, fountains, or springs have to use, sell, or exchange them as private property. ART. 425. In all that is not expressly determined by the provisions of this chapter the special law of waters shall be observed. CHAPTER SECOND. Minerals. ART. 426. Any Spaniard or foreigner may, unrestrictedly, make prospect pits or excavations not exceeding ten meters in length or depth for the purpose of discovering minerals on land of public ownership, but they must previously give notice thereof to the local authorities. On land of private ownership no prospect pits can be sunk without the previous permission of the owner or of the person representing him. ART. 427. The limits of the right mentioned in the foregoing article, the previous formalities, and the conditions for their exercise, the designation of the substances which are to be considered as minerals, and the determination of the rights of the owner of the land and of the discoverer of the minerals in case of concessions, shall be governed by the special mining law. CHAPTER TIIIRD. Intellectual property. ART. 428. The author of any literary, scientific, or artistic work has the right to profit by it and dispose of it at will. ART. 429. The law of intellectual property determines the persons to whom such right belongs, the manner of exercising it, and the period of its duration. In cases not provided for nor decided by said special law, the general rules on ownership established in this code shall be observed. TITLE V. Possession. CHAPTER FIRST. Possession and its kinds. ART. 430. Natural possession is the holding of a thing or the enjoymelt of a right by a person. Civil possession is the same holding or enJoyment, together with the intention of acquiring ownership of the thling or right. ART. 431. Possession of things or rights is exercised either by the same person who holds and enjoys them or by another in his name. 6433- 5 ART. 432. Possession of things and rights may be held in one of two different ways-either as an owner, or as a holder of the things or rights to keep or enjoy them, the ownership belonging to another person. ART. 433. Any person who is not aware that there is in his title or in the manner of acquiring it any flaw invalidating the same shall be considered a possessor in good faith. Possessors aware thereof are considered possessors in bad faith. ART. 434. Good faith is always presumed, and any person alleging bad faith on the part of the possessor is obliged to prove it. ART. 435. Possession acquired in good faith does not lose this character, except in the case and from the moment some act exists proving that the possessor is aware that he possesses the thing illegally. ART. 436. It is presumed that the possession is still enjoyed in the manner in which it was acquired until the contrary is proven. ART. 437. Only things and rights capable of being appropriated can be the object of the possession. CHAPTER SECOND. Acquisition of possession. ART. 438. Possession is acquired by the material occupancy of tlhe thing or right possessed, or by the fact that the latter remains subject to the action of our will, or by the proper legal steps and formalities established for acquiring such rights. ART. 439. Possession may be acquired by the same person who is to enjoy it, by his legal representative, by his agent, or by a third person, without any mandate whatsoever, but in the last case possession shall not be considered as acquired until the person in whose name the instrument of possession has been executed has ratified the same. ARMT. 440. The possession of hereditary property is understood as transferred to the heir without interruption and from the instant of the death of the testator, in case the inheritance be accepted. A person who repudiates an inheritance in a valid manner is understood as not having ever possessed it. ART. 441. In no case can possession be forcibly acquired while there is a possessor opposing it. A person believing that he has an action or right to deprive another of the holding of a thing must request the assistance of the competent authority whenever the holder refuses tlhe delivery. ART. 442. A person succeeding by an hereditary title shall not s1ffer the consequences of a faulty possession of the testator, unless it is proven that he had knowledge of the defects affecting it; but the effects of the possession in good faith shall benefit him only from the date of the death of the testator. ART. 443. Minors and incapacitated persons may acquire the posSCSsion of things; but they shall require the assistance of their le^al 67 representatives to make use of the rights in their favor arising from possession. ART. 444. Acts which are merely tolerated and those clandestinely executed, without knowledge of the possessor of a thing, or by force, do not affect the possession. ART. 445. Possession, as a fact, can not be recognized in two different personalities, except in cases where there is no division. Should a question arise as to the fact of the possession, the actual possessor shall be preferred; when there are two, the oldest shall be preferred; if the dates of the possession are the same, the one presenting a title; and if all these conditions are equal, the thing shall be placed in deposit or judicial keeping until the possession or ownership thereof is decided in the proper manner. CHAPTER THIRD. Effects of possession. ART. 446. Every possessor has a right to be respected in his possession; and should he be disturbed therein, he must be protected or possession must be restored to him by the means established in the laws of procedure. ART. 447. Only the possession acquired and enjoyed by virtue of ownership can serve as a title to acquire it. ART. 448. The possessor by virtue of ownership has in his favor the legal presumption that he holds possession by reason of a sufficient title and he can not be forced to show it. ART. 449. The possession of real estate is also a presumption of possession of the furniture and objects contained therein unless it is shown or proven that they should be excluded. ART. 450. Each one of the participants in a thing possessed in common is considered as having exclusively possessed the part which may be allotted to himn on the distribution for the entire period during which there is no division. Interruption in possession of the whole or a part of a thing held in common shall affect all possessors equally. ART. 451. The fruits collected in good faith by a possessor during the time the possession is not legally interrupted become his own. Natural and industrial fruits are understood as collected from the moment they are gathered or harvested. Civil fruits are considered as daily proceeds and belong to the possessor in good faith in this proportion. ART. 452. If, at the date on which good faith ceases, some natural or industrial fruits are ungathered, the possessor shall have a right to recover the expenses he may have incurred in their production, and furthermore, to a part of the net proceeds of the crop in proportion to the time of his possession. The expenses shall be distributed pro rata, in the same manner, between the two possessors. 68 The owner of a, thing may, if he desires, grant to the possessor, in good faith, the right to finish the cultivation and collection of the growing fruits as an indemnity for the part of the cost of cultivation and net proceeds belonging to him; the possessor in good faith, who, for any reason whatsoever may not desire to accept this concession, shall lose the right to be indemnified in any other manner. ART. 453. Necessary expenses are refunded to every possessor, but only the possessor in good faith may retain the thing until they are repaid to him. Useful expenses are paid the possessor in good faith with the same right of retention, the person who has defeated him in his possession having the option of refunding the amount of the expenses or paying him the increase in value the thing has acquired by reason thereof. ART. 454. The expenses purely for luxury or mere pleasure are not repaid the possessor in good faith; but he may remove the ornaments with which he has embellished the principal thing if it does not suffer injury thereby and if the successor in the possession does not prefer to refund the amount expended. ART. 455. A possessor in bad faith shall pay for the fruits collected, and for those which the legitimate possessor could have received, and shall only have a right to be reimbursed for the necessary expenses incurred for the preservation of the thing. The expenses incurred in improvements for luxury and pleasure shall not be repaid the possessor in bad faith; but the latter may remove the object for which such expenses have been incurred, provided the thing suffers no damage and the legitimate possessor does not prefer to retain them, and paying the value they may have at the time of taking possession. ART. 456. The improvements arising from nature or time always redound to the benefit of the person who has gained the possession. ART. 457. A possessor in good faith is not liable for the deterioration or loss of the thing possessed, with the exception of the cases in which it is proved that he has acted with fraudulent intent. A possessor in bad faith is liable for the deterioration or loss in any case, even in those caused by force majeure, when he has maliciously delayed the delivery of the thing to its legitimate possessor. ART. 458. The person obtaining possession is not bound to pay for improvements which have ceased to exist at the time of the acquisition of the thing. ART. 459. The actual possessor who shows his possession at a prior period is presumed to have had possession also during the intermediate period, until the contrary is proven. ART. 460. The possessor may lose his possession1. By the abandonment of the thing. 2. By transfer to another for a good or valuable consideration. 3. By the destruction or total loss of the thing or by the thing becoming unmarketable. 69 4. By the possession of another, even against the will of the former possessor, if the new possession has lasted more than one year. ART. 461. The possession of personal property is not considered lost while it is under the control of the possessor, even though the latter may accidentally not know its whereabouts. ART. 462. The possession of real property and property rights is not considered lost, nor transferred for the purposes of prescription to the prejudice of a third person, except in accordance with the provisions of the mortgage law. ART. 463. Instruments relating to possession, either executed or admitted by the person possessing another's thing as a mere holder for its enjoyment or retention for any reason, does not bind nor prejudice the owner, unless the latter should have granted to the former express powers to execute them or unless he ratifies them subsequently. ART. 464. The possession of personal property, acquired in good faith, is equivalent to a title thereto. However, the person who has lost personal property or has been illegally deprived thereof may recover it from whoever possesses it. If the possessor of personal property, lost or stolen, has acquired it in good faith at a public sale, the owner can not recover it without reimbursing the price paid therefor. Neither can the owner of things pledged in pawn shops, established with the authorization of the Government, recover them, whosoever may be the person who pledged them, without previously refunding to the institution the amount of the pledge and the interest due. With regard to things acquired on exchange, or at fairs or markets or from a merchant legally established and usually employed in similar dealings, the provisions of the code of commerce shall be observed. ART. 465. Wild animals are only possessed while they are under one's control; domestic or tame ones are considered as tame or domestic if they are accustomed to return to the home of their possessor. ART. 466. A person who recovers the possession, according to law, which was improperly lost, is considered as having enjoyed it withouit interruption, for all the purposes which may redound to his benefit. TITLE VI. Usufrunct, use, and occupancy. CHAPTER FIRST. Usu/fruct. SECTION FIRST.- Usufruct in general. ART. 467. Usufruct gives a right to enjoy another's property under thl obligation of preserving its form and substance unless the instrumelIt creating it or the law otherwise permits. 70 ART. 468. Usufruct is constituted by law by the wish of private persons expressed in instruments, inter vivos, or by last will, and by prescription. ART. 469. Usufruct can be created on the whole or on part of the fruits of a thing, in favor of one or more persons, simultaneously or successively, and in any case from or to a certain day, conditionally or unconditionally. It may also be created on a right, provided the same is not absolutely personal or not transferable. ART. 470. The rights and duties of the usufructuaries shall be those fixed in the instrument creating the usufruct; in its absence, or if the latter is not sufficient, the provisions contained in the two following sections shall be observed. SECTION SECOND.-Rights of the usufructuary. ART. 471. The usufructuary shall be entitled to receive all the natural, industrial, and civil fruits of the property in usufruct. With regard to the treasures which may be found on the estate, he shall be deemed a stranger. ART. 472. The natural or industrial fruits, growing at the time of the beginning of the usufruct, belong to the usufructuary. Those growing at the time the usufruct expires, belong to the owner. In the preceding cases, the usufructuary, at the beginning of the usufruct, is not bound to pay to the owner any of the expenses incurred; but the owner is bound to defray from the proceeds of the growing fruits, at the expiration of the usufruct, the ordinary cost of cultivation, sowing, and other similar expenses incurred by the usufructuary. The provisions of this article shall not prejudice the rights of a third person, acquired at the beginning or expiration of the usufruct. ART. 473. If the usufructuary has leased the lands or estates given in usufruct, and the latter should expire before the lease, he or his heirs and successors shall only receive the proportionate part of the rent, to be paid by the lessee. ART. 474. The civil fruits are understood to be paid day by day, and belong to the usufructuary in proportion to the time the usufruct may last. ART. 475. When a usufruct is created on the right to collect a rent or a periodical pension, either in money or in fruits, or in interest oil obligations, or certificates payable to bearer, each payment due shall be considered as proceeds or fruits of said right. When it consists in the enjoyment of the benefits arising from ain interest in any industrial or commercial enterprise, the distribution of which is not to take place at a definite date, such benefits shall have the same consideration. In either case, they shall be distributed as civil fruits and shall be applied in the manner prescribed in the foregoing article. ART. 476. The usufructuary of an estate containing mines is not elltitled to the proceeds of those denounced, granted, or which are being 71 worked at the beginning of the usufruct, unless they are expressly granted to him by the instrument creating the latter or if it be universal. The usufructuary, however, may remove stones, lime, and chalk from the quarries for repairs, or works which he may be obliged to make or which may be necessary. ART. 477. Notwithstanding the provisions of the foregoing article, the usufructuary, in a legal usufruct, may work the mines denounced, granted, or which are being worked contained in the estate, retaining one-half of the proceeds which may be obtained after deducting the expenses, which he shall equally share with the owner. ART. 478. The status of a usufructuary does not deprive the person possessing it of the right granted to everyone by the mining law to denounce and obtain the concession of mines existing on the estate in usufruct in the form and under the conditions established by said law. ART. 479. The usufructuary shall have a right to enjoy the increase which the thing in usufruct may receive by accretion, aa well as the easements existing in its favor, and in general all the benefits inherent thereto. ART. 480. The usufructuary may personally enjoy the thing in usufruct, lease it to another person, or alienate his right to the usufruct, even for a good consideration; but all the contracts he may make as such usufructuary shall terminate at the expiration of the usufruct, except the lease of rural estates, which shall be considered in force during the agricultural year. ART. 481. When the usufruct includes things which, without being destroyed, gradually deteriorate by use, the usufructuary shall have a right to make use of them in accordance with the purpose they are to serve, and shall not be obliged to return them at the expiration of the usufruct, except in their condition at that time; but he shall be obliged to indemnify the owner for the deterioration they may have suffered by reason of his fraud or neglect. ART. 482. When the usufruct includes things which can not be used without being consumed, the usufructuary shall have a right to make use of them under the obligation of paying their appraised value on the expiration of the usufruct, if they were appraised when given to lim. When they have not been appraised, he shall have the right to return them by giving the same quantity and quality or paying their (urrent value at the time of the expiration of the usufruct. ART. 483. The usufructuary of vineyards, olive orchards, or other trees or shrubs may make use of dead trunks and even of those cut or t(,ii off by accident, under the obligation of replacing them by others. ART. 484. If in consequence of an accident or extraordinary event tlhe vines, olive trees, or other trees or shrubs should have disappeared il. such a considerable number that the replanting of them should be i1")ossible, or too onerous, the usufructuary may leave the dead, fallen, bo1 broken trunks at the disposal of the owner and oblige him to remove them and clear the land. 72 ART. 485. The usufructuary of woodland shall enjoy all the profits which the latter may produce according to its character. If the woodland is a copse or of timber for building, the usufructuary may do ordinary cutting or felling, such as the owner may have been in the habit of doing, and should the latter not have done so he shall make them in accordance with the usage of the place as to manner, amount, and season. In any case the cutting or felling of trees shall be done in such manner that it will not injure the preservation of the estate. In nurseries of trees the usufructuary may thin out as required in order that the remaining trees may properly develop. With the exception of the provisions contained in the foregoing paragraphs, the usufructuary can not cut trees close to the ground unless it be to restore or improve some of the things held in usufruct, and in such case he must previously inform the owner of the necessity for the work. ART. 486. The usufructuary of an action to recover an estate or property right, or personal property, has a right to enforce it, and to oblige the owner of the action to give him his representation for this purpose, and to furnish him the proofs he may have. When, by reason of the enforcement of such action, he acquires the thing claimed, the usufruct shall be limited to the fruits only, the ownership going to the proprietor. ART. 487. The usufructuary may make on the property which is the object of the usufruct any improvements, useful or for recreation, which he may deem proper, provided he does not change its form or substance; but he shall have no right to be indemnified therefor. He may, however, remove said improvements, should it be possible to do so without injury to the property. ART. 488. The usufructuary may set off any damage to the property with the improvements he may have made thereon. ART. 489. The owner of property, the usufruct of which is held by another, may alienate it, but can not change its form or substance nor do anything to the prejudice of the usufructuary. ART. 490. The usufructuary of part of a thing held in common shall exercise all the rights corresponding to the owner thereof with regard to the administration and collection of fruits or interests. Should the community cease by reason of the division of the thing possessed inl common, the usufruct of the part awarded to the owner or coowner shall appertain to the usufructuary. SECTION THIRD.-Obligations of the usufructuary. ART. 491. The usufructuary, before entering upon the enjoyment of the property, is obliged1. To make, after summoning the owner or his legitimate representative, an inventory of all the property, having an appraisal of the personal property made, and describing the condition of the real property. 73 2. To give security, binding himself to comply with the obligations imposed on him by this section. ART. 492. The provision contained in number 2 of the foregoing article is not applicable to the vendor or donor who has reserved to himself the usufruct of the property sold or bestowed as a gift, nor to parents who are the usufructuaries of the property of their children, nor to the surviving spouse with regard to the hereditary portion granted to him or her by articles 834, 836, and 837, except in case the parents or spouse contract a second marriage. ART. 493. The usufructuary, whatever the title for his usufruct may be, may be excused from the obligation of making an inventory or of giving security when no one will be injured thereby. ART. 494. Should the usufructuary not give security in cases in which he should do so, the owner may require that the real property be placed under administration; the personal property sold; that the public securities, instruments of credit, payable to order or to bearer, be converted into certificates or be deposited in a bank or public institution; and that the capital or sums in cash and money received from sales of personal property be invested in safe securities. Interest on money received from the sale of personal property and that on public securities and bonds, and the proceeds of property placed under administration, belong to the usufructuary. The owner may furthermore, if he prefers it, while the usufructuary gives no security or is excused from doing so, retain in his possession the property of the usufruct, as administrator, and with the obligation of delivering the net proceeds thereof to the usufructuary, after deducting the sums which may be agreed upon or may be judicially fixed for said administration. ART. 495. If the usufructuary who has not given security claims, under security given under oath, the delivery of the furniture required for his use, and that a dwelling be assigned to him and his family in a house included in the usufruct, the judge may grant his request, after considering the circumstances of the case. The same shall be understood with regard to instruments, implements, and other personal property, required for the industry in which he is engaged. Should the owner not wish that some pieces of furniture be sold, either by reason of their artistic merit or on account of being keepsakes, he may demand their delivery to him upon giving securityfor the payment of the legal interest on their appraised value. ART. 496. After the security has been given by the usufructuary he shall be entitled to all the proceeds from the day on which he should have begun to receive them, in accordance with the instrument creating tile usufruct. ART. 497. The usufructuary must take care of the property given in ulsufruct as a good father of a family would. 74 ART. 498. A usufructuary who should alienate or lease his right of usufruct shall be liable for the damage suffered by the property in usufruct through the fault or neglect of the person who substitutes him. ART. 499. If the usufruct should be created on a flock, or on a herd of cattle, the usufructuary shall be obliged to replace with the young thereof those dying annually or naturally and those carried away by the rapacity of preying animals. If the cattle on which the usufruct is created should all perish, without fault of the usufructuary, by reason of a contagious disease or any other uncommon event, the usufructuary shall fulfill his duty by delivering to the owner those remaining which may have been saved from this misfortune. Should the herd partially perish, also by reason of accident and without the fault of the usufructuary, the usufruct shall continue with regard to the part saved. Should the usufruct be on sterile stock, it shall be considered for all its purposes as created on consumable objects. ART. 500. The usufructuary is obliged to make the ordinary repairs required by the things given in usufruct. Ordinary repairs shall be considered those required by the ordinary wear and tear produced by the natural use of things, and which are indispensable for their preservation. Should he not make them after being requested to do so by the owner, the latter may make them at the expense of the usufructuary. ART. 501. Extraordinary repairs shall be made for the account of the owner. The usufructuary is obliged to notify him when the necessity of making them is urgent. ART. 502. If the owner should make the extraordinary repairs he shall be entitled to demand of the usufructuary thle legal interest on the amount invested in them during the continuance of the usufruct. Should he not make them when they are indispensable for the preservation of the thing, the usufructuary may make said repairs; but he shall have a right to demand of the owner, on the expiration of the usufruct, the increase in value which the estate may have acquired by reason of said works. Should the owner refuse to pay said amount the usufructuary shall have the right to retain the thing until he reimburses himself with the proceeds thereof. ART. 503. The owner may make the works and improvements which may be proper onl the estate in usufruct, or new plantations thereon if it is rural property, provided the value of the usufruct is not reduced nor the rights of the usufructuary prejudiced by such acts. ART. 504. The payment of the annual charges and taxes and of those \ considered liens on the fruits shall be made by the usufructuary during the continuation of the usufruct. *@ AART. 505. The taxes which may be imposed directly upon the capital, during the usufruct, shall be paid by the owner. 75 If the latter should have paid them the usufructuary must pay him the proper interest on the sums he may have disbursed by reason thereof, and if the usufructuary should advance the amounts of such taxes he shall recover them on the expiration of the usufruct. ART. 506. If the usufruct should be created on the entire patrimony, and if, at the time of its creation, the owner has debts, the provisions of articles 642 and 643 relating to gifts shall be applied for the mainttenance of the usufruct as well as for the obligation of the usufructuary to pay them. The same provision is applicable in case the owner, at the time of the creation of the usufruct, should be obliged to pay periodical sums even though there be no known principal. ART. 507. The usufructuary may claim the credits due which form part of the usufruct if he has given or gives the proper security. If he has been excused from giving security, or if he can not do so, or if that given is not sufficient, he shall require the authorization of the owner, or, in his absence, of the judge to collect said credits. The usufructuary who has given security may invest the sum he collects in any manner he may deem fit. The usufructuary without bond must invest said capital at interest, upon agreement with the owner, and in the absence of such an agreement, with judicial authorization, and in every case with security sufficient to preserve the integrity of the capital in usufruct. ART. 508. The universal usufructuary must pay in full the legacy of a life annuity or the pension for support. The usufructuary of an aliquot part of the estate shall pay in proportion to his share. In neither of the two cases shall the owner be obliged to make any reimbursements. The usufructuary of one or more specified things shall pay the legacy only when the annuity or pension is expressly charged upon them. ART. 509. The usufructuary of a mortgaged estate shall not be obliged to pay the debt for the security of which the mortgage was created. When the estate is attached or judicially sold for the payment of the debt, the owner shall be liable to the usufructuary for what he may lose by reason thereof. ART. 510. Should the usufruct be of the whole or of an aliquot part of an inheritance, the usufructuary may advance the sums which may correspond to the property in usufruct for the payment of the debts of the estate and shall be entitled to demand their return from the owner, without interest, at the expiration of the usufruct. Should the usufructuary refuse to make this advance, the owner may request the sale of the part of the property in usufruct which may be necessary to pay said sums, or pay them with his own money, being entitled in such case to demand the proper interest of the usufructuary. ART. 511. The usufructuary is obliged to notify the owner of any act of a third persoin, of which he may have knowledge, which might injure 76 the rights of ownership, and shall be liable, should he not do so, for the losses and damages as if they were caused by his own fault. ART. 512. The expenses, costs, and judgments of the litigation instituted, with regard to the usufruct, shall be charged to the usufructuary. SECTION FOURTH.- Ways of extinguishing a usufruct. ART. 513. A usufruct is extinguished: 1. By the death of the usufructuary. 2. By the expiration of the period for which it was created or by the fulfillment of the condition subsequent mentioned in the instrument creating it. 3. By the merger of usufruct and ownership in the same person. 4. By the renunciation of the usufructuary. 5. By the total loss of the property in usufruct. 6. By the termination of the right of the person constituting it. 7. By prescription. ART. 514. If the thing given in usufruct should suffer a partial loss only, this right shall continue with regard to the remainder. ART. 515. The usufruct can not be created for more than thirty years in favor of a town, corporation, or association. Should it have been created, and before said period the town becomes deserted or the corporatioi or association is dissolved, the usufruct shall be extinguished by this fact. ART. 516. The usufruct granted for the time until a third person attains a certain age shall continue during the number of years specified, even though the third person dies before, unless said usufruct has been expressly granted only because of the existence of the said person. ART. 517. If the usufruct is created on an estate of which a building forms part, and the latter should be destroyed in any manner whatsoever, the usufructuary shall be entitled to enjoy the use of the land and material. This shall also be the case if the usufruct is created upon the building only, and should the latter be destroyed. But, in such case, if the owner desires to construct another building he shall have a right to occupy the ground and to make use of the materials, being obliged to pay the usufructuary during the continuance of the usufruct the interest upon the sums equivalent to the value of the ground and of the materials. ART. 518. If the owner shares with the usufructuary the insurance of the estate given in usufruct, he shall continue, in case of accident, in the enjoyment of the new building, should one be constructed, or shall receive the interest on the amount of the insurance if the owner does not wish to rebuild. If the owner should have refused to contribute to the insurance of the estate, and the usufructuary does so alone, the latter shall acquire the 77 right, in case of accident, to collect in full the amount of the insurance, but with the obligation of investing it in rebuilding the estate. If the usufructuary should have refused to contribute to the insurance and the owner does so alone, the latter shall receive, in case of accident, the full amount of the insurance, always reserving the right granted the usufructuary in the foregoing article. ART. 519. If the thing in usufruct should be condemned by way of eminent domain, the owner shall be obliged either to replace it with another of the same value, and having similar conditions, or to pay the usufructuary the legal interest on the amount of the indemnity during the continuance of the usufruct. If the owner chooses the latter, he is obliged to give security for the payment of the interest. ART. 520. A usufruct is not extinguished by the bad use of the thing in usufruct; but if the abuse causes considerable loss to the owner, the latter may request that the thing be delivered to him, binding himself to pay annually to the usufructuary the net proceeds of the same, after deducting the expenses and the compensation which may be allowed him for its administration. ART. 521. The usufruct created in favor of several persons living at the time of its creation shall not be extinguished until the death of the last survivor. ART. 522. Upon the expiration of the usufruct the thing in usufruct shall be delivered to the owner, reserving the right of retention appertaining to the usufructuary or his heirs, for disbursements, which should be repaid. After the delivery is made the bond or the mortgage shall be canceled. CHAPTER SECOND. Use and occupancy. ART. 523. The rights rJimd obligations of a person having the use and of the one who has a right of occupancy shall be governed by the instruments creating such rights, and in their absence by the following provisions. ART. 524. Use gives a right to receive, out of the fruits of another's l)roperty, whatever may be required to provide for the necessities of the person enjoying the use, and of his family, even when the latter increases. Occupancy gives the person having this right that of occupying in another's house the apartments he may require for himself and for the members of his family. ART. 525. The rights of use and occupancy can not be leased, nor transferred to another person in any manner. ART. 526. The person having the use of a flock or of a herd of cattle may make use of the young, milk, and wool thereof, in so far as mly be required for the consumption of himself and family, as well as of the dung required for manuring the land he may cultivate. 78 ART. 527. If the person enjoying the use consumes all the fruits of another's property, or if the person having the right of occupancy should occupy the whole house, he shall be obliged to pay all the expenses of cultivation, ordinary repairs for the preservation thereof, as well as the taxes, in the same manner as the usufructuary. If he receives a part of the fruits only, or dwells in a part of the house, he need make no payments, provided that a part of the fruits or benefits sufficient to cover the expenses and taxes remain to the owner. Should they not be sufficient, the former shall pay what may be required. ART. 528. The provisions established for usufructs are applicable to the rights of use and occupancy, in so far as they do not conflict with those contained in this chapter. ART. 529. The rights of use and occupancy are extinguished by the same causes as that of usufruct, and, furthermore, by serious abuse of the thing or dwelling. TITLE VII..Easements. CHAPTER FIRST. Easements in general. SECTION FIRST.-Different kinds of easements which may be established on estates. ART. 530. An easement is a charge imposed upon real property for the benefit of another estate belonging to a different owner. The real property in favor of which the easement is established is called the dominant estate, and the one charged with it the servient estate. ART. 531. Easements may also be established for the benefit of one or more persons or of a community to whom the incumbered estate does not belong. ART. 532. Easements may be continuous, intermittent, apparent or nonapparent. Continuous easements are those the use of which is or may be incessant without the intervention of any act of man. Intermittent easements are those used at more or less long intervals and which depend upon acts of men. Apparent easements are those which are well known and which are continually in view by external signs, which show the use and benefit of the same. Non apparent easements are those which show no external sign of their existence. ART. 533. Easements are, furthermore, positive or negative. A positive easement is called one which imposes upon the owner of the servient estate the obligation of allowing something to be done or 79 doing it himself, and a negative easement that which forbids the owner of the servient estate to do something which he could properly do if the easement did not exist. ART. 534. Easements are inseparable from the estate to which they actively or passively belong. ART. 535. Easements can not be divided. When the servient estate is divided among two or more persons the easement is not modified, and each division has to bear the part corresponding to it. If the dominant estate is divided among two or more persons each part owner may use the easement wholly, provided the place of its use is not changed, nor increasing the easement in any manner whatsoever. ART. 536. Easements are established either by law or by the will of the owners. The former are called legal and the latter voluntary. SECTION SECOND.-MJanner of acquiring easements. ART. 537. Continuous and apparent easements are acquired either by virtue of title or by prescription of twenty years. ART. 538. In order to acquire by prescription the easements referred to in the foregoing article, the time of the possession shall be counted, in positive easements, from the day on which the owner of the dominant estate or the one who has made use of the easement has commenced to exercise the right on the servient estate; and in negative easements, from the day on which the owner of the dominant estate has, by a formal act, forbidden the owner of the servient one to execute the act which would be legal without the easement. ART. 539. Continuous nonapparent easements and intermittent ones, either apparent or not, can only be acquired by virtue of a title. ART. 540. The lack of title establishing an easement which can not be acquired by prescription can only be substituted by the instrument of acknowledgment by the owner of the servient estate or by a final judgment. ART. 541. The existence of an apparent sign of an easement between two estates established by the owner of both shall be considered, should one of them be alienated, as a title, in order that the easement may continue actively and passively, unless, at the time of the division of the ownership of both estates, the contrary should be expressed in the instrument of alienation of either of them, or if said sign is removed before the execution of the instrument. ART. 542. In establishing an easement, all the rights necessary for its use are understood to be granted. SECTION THIRD.-Rights and obligations of owners of dominant and servient estates. ART. 543. The owner of the dominant estate may make, at his own expense, on the servient estate the works necessary for the use and preservation of the easement, but without changing it or rendering it more onerous. 80 He must select therefor the most convenient time and manner in order to cause the least possible inconvenience to the owner of the servient estate. ART. 544. Should there be several dominant estates, the owners of all of them shall be obliged to contribute to the expenses referred to in the foregoing article, in proportion to the benefit each may obtain from the work. The one who does not wish to contribute may exempt himself by renouncing the easement for the benefit of the others. If the owner of the servient estate should, in any manner whatsoever, make use of the easement, he shall be obliged to contribute to the expenses in the proportion above stated, unless there is an agreement to the contrary. ART. 545. The owner of the servient estate can not impair, in any manner whatsoever, the use of an established easement. However, if by reason of the place originally assigned or of the manner established for the use of the easement, the latter should become too inconvenient to the owner of the servient estate or should prevent him from making works, repairs, or important improvements, it may be changed at his expense, provided he offers another place or manner equally convenient, and that no injury is caused the owner of the dominant estate or those who have a right to the use of the easement. SECTION FOURTH.- Ways of extinguishing easements. ART. 546. Easements are extinguished: 1. By merger in the same person of the ownership of the servient and dominant estates. 2. By nonuser for twenty years. This period shall commence to be counted, in intermittent easements, from the day on which it has ceased to be used; and, with regard to continuous ones, from the (lay on which an act in contravention of the easement may have occurred. 3. When the estates become in such condition that the easement can not be made use of; but it shall revive, if subsequently the condition of the estates permits it to be used, unless, when the use becomes possible, sufficient time has elapsed for the prescription, in accordance with the provisions of the foregoing number. 4. When the day falls due, or when the condition is fulfilled, if the easement be temporary or conditional. 5. By the renunciation of the owner of the dominant estate. 6. By the redemption agreed upon between the owners of the dominant and servient estates. ART. 547. The manner of permitting the enjoyment of the easement shall be prescribed like the easement itself, and in the same way. ART. 548. If the dominant estate belongs to several persons in colmmon, the use of the easement made by one of them prevents the prescription with regard to the others. 81 CHAPTER SECOND. Legal easements. SECTION FIRST.- General provisions. ART. 549. The purpose of easements, imposed by law, is either public utility or the interest of private persons. ART. 550. All that concerns easements, established for the public or common utility, shall be governed by the special laws and regulations pertaining thereto, and, in their absence, by the provisions of this title. ART. 551. The easements, established by law for the interests of private persons or for causes of private utility, shall be governed by the provisions of this title, without prejudice to the provisions of general or local laws, regulations, and ordinances with regard to city or rural police. These easements may be modified by agreement among the persons interested, if the law does not prohibit, and if it does not prejudice a third person. SECTION SECOND.-Easements with regard to waters. ART. 552. Lower estates must receive the waters which naturally and without the intervention of man descend from the higher estates, as well as the stone or earth which they carry with them. Neither may the owner of the lower estate construct works preventing this easement, nor the one of the higher estate works increasing the burden. ART. 553. The banks of the rivers, even when they are of private ownership, are subject in their entire length and in their margins for a zone of three meters to the easement of the public use in the general interest of navigation, floatage, fishing, and salvage. The estates adjoining the banks of navigable or floatable rivers are furthermore subject to the easement of a towpath for the exclusive service of river navigation and floatage. Should it be necessary to occupy, for such purpose, lands of private ownership, the proper indemnity must first be paid. ART. 554. If for the diversion or taking of waters from a river or brook or for the use of other continuous or intermittent streams it should be necessary to construct a dam, and the person who is to do so is not the owner of the banks or land upon which to support it, he may establish the easement for abutment of the dam by previously paying proper indemnity. ART. 555. Obligatory easements for drawing water and for watering animals may be imposed only for a cause of public utility in favor of a town or village after the proper indemnity. ART. 556. The easements for drawing water and for watering animals carry with them the obligation on the servient estates of giving 6433 6 82 the right of way to the persons and animals to the point where it can be utilized, and the indemnity must include this service. ART. 557. Whosoever wishes to make use of water, of which he may dispose for an estate belonging to him, has the right to cause it to pass through the intermediate estates, with the obligation of indemnifying their owners, as well as those of the lower estates upon which the waters may filter or descend. ART. 558. A person desiring to make use of the right granted in the foregoing article is obliged: 1. To prove that he has a right to dispose of the water, and that it is sufficient for the use to which it is destined. 2. To show that the right of way he requests is the most convenient and least onerous to a third person. 3. To indemnify the owner of the servient estate in the manner prescribed by the laws and regulations. ART. 559. The easement of an aqueduct for an object of private interest can not be imposed on buildings nor their yards or dependencies, nor on gardens or orchards already in existence. ART. 560. The easement of an aqueduct does not prevent the owner of the servient estate from closing and fencing it, nor from building over the aqueduct, in such manner that the latter suffers nlo damage nor renders impossible necessary repairs and cleanings. ART. 561. The easement of an aqueduct for its legal effects shall be considered as continuous and apparent, even though the passage of the water is not continuous, or even if its use depends on the requirements of the dominant estate, or periods consisting of days or hours. ART. 562. A person who for the purpose of irrigating his estate or improving it has to construct a stop lock or a sluice gate in a mill race through which it is to receive water, may demand that the owners of the margins allow their construction, after paying all loss and damage, including those caused by the new easement to the said owners and to the other irrigators. ART. 563. The establishment, extent, form, and conditions of the easements of waters to which this section refers shall be governed by the special law relating thereto in everything not provided for in this code. SECTION THIRD.-Right of way. ART. 564. The owner of an estate or of property surrounded by others, belonging to several owners, and having no exit to public roads, has a right to demand a right of way through the neighboring estates on paying the proper indemnity. If this easement is constituted in such manner that its use may be continuous for all the requirements of the dominant estate, establishing a permanent passage, the indemnity shall include the value of the land occupied and the amount of the damage caused the servient estate. 83 When it is limited to the passage required for the cultivation of the estate surrounded by others, and for the transportation of its crops through the servient estate without a permanent passage, the indemnity shall consist in the payment of the damage caused by said encumbrance. ART. 565. The right of way must be at the point least prejudicial to the servient estate, and in so far as is consistent with this rule where the distance from the dominant estate to the public road may be the shortest. ART. 566. The width of the fight of way shall be sufficient for the necessities of the dominant estate. ART. 567. When an estate, acquired by sale, exchange, or division should be surrounded by other estates of the vendor, exchanger, or coowner, the latter shall be obliged to grant right of way without indemnity, unless there is an agreement to the contrary. ART. 568. If the right of way granted to an inclosed estate ceases to be necessary because the owner thereof has joined it to another abutting on the public road, the owner of the servient estate may demand the extinguishment of the easement, returning what he may have received by way of indemnity. The same shall be understood in case a new road is opened giving access to the inclosed estate. ART. 569. If it is indispensable for the construction or repair of a building to carry the materials through another's estate, or construct thereon scaffolding or other objects for the work, the owner of said estate is obliged to consent thereto, receiving an indemnity corresponding to the damage caused him. ART. 570. Existing rights of way for the passage of stock, known by the name of sheep path, trail, footpath,-or by any other, and those for watering and resting places and sheepfolds shall be governed by the ordinances and regulations relating thereto, and, in their absence, by the uses and customs of the locality. Without prejudice to rights legally acquired, a path shall not exceed 75 meters in width; a trail, 37 meters 50 centimeters, and a footpath, 20 meters. When it may be necessary to establish an obligatory right of way or for a drinking trough for cattle, the provisions of this section and of articles 555 and 556 shall be observed. In this case the width can not exceed 10 meters. SECTION FoURTH.-Easements of party walls and fences. ART. 571. The easements of party walls and fences shall be governed by the provisions of this title, and by the local ordinances and customs ill so far as they do not conflict with the same or if there are no provisions in regard thereto. 84 ART. 572. The easement of party walls and fences is presumed, unless there is a title or exterior mark or proof to the contrary: 1. In dividing walls of adjoining buildings up to the point of elevation in common. 2. In dividing walls of gardens or yards situated in cities or in the country. 3. In fences, inclosures, and live hedges dividing rural estates. ART. 573. It is understood that there are exterior signs, in contravention of the easement of party wall and fences: 1. When in dividing walls of buildings there are windows or openings. 2. When the dividing wall is, on one side, true and plumb in all its facement, and has similar conditions in the upper part of the other side, but in the lower part thereof slants or projects. 3. When the entire wall is built on the land of one of the estates, and not on the dividing line of the two contiguous estates. 4. When it bears the burden of the binding beams, floors, and roof frame of one of the houses and not of the adjoining one. 5. When the dividing walls between yards, gardens, and estates are so constructed that the coping sheds the waters toward one of the estates. 6. When the dividing wall being constructed of stone and cement, has stones called stepping stones, which at intervals project from the susface on one side only and not on the other. 7. When rural estates adjoining others inclosed by fences or live hedges are themselves not closed. In all these cases the ownership of the walls, inclosures, or hedges shall be understood as vested exclusively in the owner of the property or estate who has in his favor the presumption based on any one of the said signs. ART. 574. Open ditches or drains between estates are also considered as common if there is no title or sign proving the contrary. There is a sign contrary to ownership in common when the earth or dirt removed to open or clean the ditch has been done only on one side thereof, in which case the ownership of the ditch shall be vested exclusively in the owner of the estate having this exterior sign on its side. ART. 575. The cost of repairs and construction of party walls and the preservation of inclosures, live hedges, ditches, and drains in common shall be borne by all the owners of the estates who are interested therein, in proportion to the right of each one. Nevertheless, any owner may refuse to contribute to this charge by renouncing his right, except in case the party wall supports a building belonging to him. ART. 576. If the owner of a building supported by a party wall desires to demolish it, he may also renounce the part ownership; but all the repairs and works necessary to prevent damages which the demolition may cause to the party wall, on this occasion only, shall be paid for by him. 85 ART. 577. Every owner may construct a party-wall by erecting it, at his own expense, and by paying for any damages which may be caused by the work, even when only temporary. He shall also have to pay for the expenses of maintaining the wall in the part newly raised or deepened at its foundation, with regard to its former condition, and besides the indemnity for the increased expenses which it may be necessary to incur in order to preserve the party-wall by reason of the greater height or depth which has been given the same. If the party-wall can not bear the increased height, the owner desiring to raise it, shall be obliged to reconstruct it at his own expense, and, should it be necessary therefor to make it thicker, he shall give the space required from his own land. ART. 578. The other owners, who have not contributed in giving increased height, depth, or thickness to the wall, may, nevertheless, acquire therein the right of part ownership by paying the value of the work and one-half that of the land appropriated for its increased thickness in proportion to their interest. ART. 579. Every owner of a party-wall may use it in proportion to the right he may have in the part ownership. He may therefore build, supporting his structure on the party-wall, or introduce joists up to one-half its thickness, but without interfering with the common and respective uses of the other part-owners. In order that the part-owner may make use of this right, he must previously obtain the consent of the other parties interested in the part-ownership; and, should he not obtain it, the conditions necessary in order that the new work may not injure the right of the former shall be fixed by experts. SECTION FIFTH.-Easement of light and view. ART. 580. No part-owner may, without the consent of the other, make in the party-wall any window or opening whatsoever. ART. 581. The owner of a wall which is not a party-wall, adjoining another's estate, may make in it windows or openings to admit light, at the height of the ceiling joists or immediately under the ceiling, of the dimensions of 30 centimeters square, and, in any case, with an iron grate embedded in the wall and a wire screen. However, the owner of the house or est te adjoining the wall in which the openings are made may close them, if he acquires the part ownership of the wall and should there be no agreement to the contrary. He may also obstruct them by building on his land or raising a wall adjacent to that having such opening or window. ART. 582. Windows with direct views, or balconies or any similar Openings projecting over the estate of the neighbor, can not be made if there is not a distance of, at least, 2 meters between thle wall in which they are built and said estate. 86 Neither can side nor oblique views be opened over said property, unless there is a distance of 60 centimeters. ART. 583. The distances referred to in the foregoing article shall be measured, in cases of direct views, from the outer line of the wall when the openings do not project, from the line of the latter when they exist, and for oblique views from the dividing line of both estates. ART. 584. The provisions of article 582 are not applicable to buildings separated by a public thoroughfare. ART. 585. When, under any title, a right has been acquired to have direct views, balconies, or lookouts overlooking adjacent property, the owner of the servient estate can not build thereon at less than 3 meters distance, to be measured according to the manner mentioned in article 583. SECTION SIXTHi.-Drainage of buildings. ART. 586. The owner of a building is obliged to construct his roofs or coverings in such a manner that rain water may fall on his own land or on the street or public place, and not on the land of his neighbor. Even if it falls on his own land, the owner is obliged to collect it in such manner that it will not in jure the adjoining estate. ART. 587. The owner of the estate charged with an easement of receiving water discharged from roofs may build in such manner as to receive the waters upon his own roof, or give them another outlet, in accordance with the local ordinances or customs, and so as not to be burdensome or detrimental to the dominant estate in any manner whatsoever. ART. 588. When the yard or court of a house is inclosed between others, and it should not be possible to give an outlet through the house itself to the rain water collected therein, the establishment of an easement of drain may be demanded, giving an outlet to the waters at the point of the contiguous estates where its egress may be the easiest, and establishing a conduit for the drain in such manner as to cause the least damage to the servient estate, after the proper indemnity. SECTION SEVENTH.-Intermediate distances and works for certain constructions and plantings. ART. 589. Buildings can not be constructed nor plantings made near fortified places or fortresses without submitting to the conditions required by the special laws, ordinances, and regulations relating thereto. ART. 590. No one shall construct near a wall belonging to another, or near a party wall, wells, sewers, aqueducts, kilns, forges, chimneys, stables, or make deposits of corrosive material, or build manufactories operated by steam, or factories which by reason of their character or products are dangerous or noxious, without observing the distances prescribed by the regulations and customs of the locality and without 87 making the necessary protective works, subject in regard to form to the conditions prescribed by said regulations. In the absence of regulations the precautions which may be considered necessary shall be taken, after an expert opinion, in order to avoid any damage to the neighboring estates or buildings. ART. 591. Trees shall not be planted near another's estate, except at the distance authorized by the ordinances or customs of the locality, and in their absence at a distance of 2 meters from the dividing line of the estates, if the planting is made of tall trees, and at 50 centimeters if the planting is of shrubs or small trees. Every owner has a right to demand that trees which may be planted in the future at a lesser distance from his estate be uprooted. ART. 592. Should the branches of any tree extend over a neighboring estate, gardens, or yards, the owner of the latter shall have a right to demand that they be cut in so far as they extend over his property; and should the roots of the neighboring trees extend into another's land the owner of said land may himself cut them within his estate. ABT. 593. Trees existing in a party live hedge shall also be considered as party trees, and any of the owners has a right to demand their uprooting. Trees serving as boundary marks are excepted, which may only be uprooted by common consent of the owners of the adjoining estates. CHAPTER THIRD. Voli ntary easements. ART. 594. Every owner of an estate has a right to charge it with all the easements he may deem fit, and in the manner and form that lihe may consider best, provided he does not violate the laws nor public order. ART. 595. The owner of an estate the usufruct of which belongs to another may impose thereon, without the consent of the usufruetuary, any easements not injuring the right of usufruct. ART. 596. When one person has tlhe legal title in an estate and another has the beneficial title, no perpetual voluntary easement can be established thereon without thle consent of both parties in interest. ART. 597. In order to impose an easement on an undivided estate, the consent of all the part owners shall be required. The consent given by some only shall remain in suspension until every one of the joint or co-owners agrees thereto. But the consent given by one of the part owners severally shall bind the grantor or his successors, even if they be so by private title, not to prevent the exercise of the right granted. ART. 598. The title, and in a proper case the possession, of an easement acquired by prescription determines the rights of the dominant estate and the obligation of the servient estate. In its absence the easement shall be governed by such provisions of this title which may be applicable. 88 ART. 599. If the owner of the servient estate has bound himself at the time of creating the easement to defray the cost of the works required for the use and preservation thereof he may free himself from this charge by abandoning his estate to the owner of the dominant estate. ART. 600. Pasturage in common may only be established in the future by an express consent of the owners, contained in a contract or last will, and not in favor of a universality of persons or a universality of property, but in favor of specified individuals and on estates also definite and specified. An easement established in accordance with this article shall be governed by the instrument of its creation. ART. 601. Pasturage in common in public lands, whether belonging to the municipalities or to the State, shall be governed by the administrative laws. ART. 602. If pasturage in common exists between residents of one or more towns, the owner who incloses an estate with a fence or hedge shall free the same from the pasturage in common. The other easements, nevertheless, established on the same shall continue. The owner who incloses his estate shall preserve his right to the pasturage in common in the other estates which are not inclosed. ART. 603. The owner of land encumbered by the easement of pasturage may redeem it by paying the value thereof to those having the right thereto. In the absence of an agreement, the amount of said redemption shall be fixed upon the basis of 4 per cent of the annual value of the pasturage, fixed by an expert appraisal. ART. 604. The provisions contained in the preceding article are applicable to easements established for the use of firewood and other products of forests which are private property. TITLE VIlI. The registry of property. FIRST AND LAST CHAPTER. ART. 605. The purpose of the registry of property is to enter or record therein the instruments and contracts relating to ownership and other property rights in real property. ART. 606. The titles of ownership or of other property rights relating to real estate which are not properly recorded or entered in the registry of property shall nlot prejudice third persons. ART. 607. The registry of property shall be public for those who have a known interest in ascertaining the condition of real property or property rights recorded or entered therein. ART. 608. The provisions of the mortgage law shall be observed with regard to the determination of instruments subject to record or entry, the form, effect, and extinction of the same, the manner of keeping the registry, and value of the entries contained in the books of the same. BOOK THIRD. DIFFERENT WAYS OF ACQUIRING OWNERSHIP. Preliminarg provision. ART. 609. Ownership is acquired by retention. Ownership and other property rights are acquired and transmitted by law, by gift, by testate or intestate succession, and, in consequence of certain contracts, by tradition. TITLE I. Retention. ART. 610. Things are acquired by retention which can be appropriated by reason of their nature, which have no owners, such as animals which are the object of hunting and fishing, hidden treasure, and abandoned property. ART. 611. The right to hunt and fish is governed by special laws. ART. 612. The owner of a swarm of bees shall have a right to pursue them on another's estate, indemnifying the possessor of the latter for the damage caused. Should it be inclosed, he shall require the consent of the owner to enter the same. Should the owner not have pursued, or should he abandon the pursuit of the swarm for two consecutive days, the possessor of the estate may take or retain it. The owner of tamed animals may also claim them within twenty days, counted from the date of their retention by another. After this period has elapsed, they shall belong to the person who may have caught and kept them. ART. 613. Pigeons, rabbits, and fish, which, from their respective breeding places, should pass to another one, belonging to a different owner, shall be the property of the latter, provided they have not been enticed by means of some trickery or fraud. ART. 614. A person finding a treasure by chance, hidden on another's l)property, shall have the right granted him by article 351 of this code. ART. 615. A person finding any personal property, which is not treasure, must return it to its former possessor. Should the latter be unknown, he must deliver it immediately to the mayor of the town where the find was made. The mayor shall publish it in the usual manner two consecutive Sundays. 89 90 Should it not be possible to keep the personal property found without injury or without incurring expenses greatly reducing its value, it shall be sold at public auction, after eight days have elapsed from the second advertisement, without the owner having apppeared, and the proceeds shall be deposited. After two years have elapsed from the date of the second advertisement, without the owner having appeared, the thing found or its value shall be awarded to the person who found it. The latter, or the owner in a proper case, shall be obliged to pay the costs. ART. 616. Should the owner appear, in due time, he shall be obliged to pay, as a reward to the finder of the thing, a tenth part of the sum or of the value of the article found. If the value of the find exceeds 2,000 pesetas, the reward shall be reduced to a twentieth with regard to the excess. ART. 617. The rights to goods jettisoned, or to those cast ashore by the waves, whatever their nature may be, or to plants and herbs growing on the seashore, are fixed by special laws. TITLE II. Gifts. CHAPTER FIRST. Nature of gifts. ART. 618. A gift is an act of liberality by which a person disposes gratuitously of a thing in favor of another, who accepts it. ART. 619. A gift is also what is given a person by reason of his merits or for services rendered the donor, provided it does not constitute a recoverable debt, or that which imposes upon the donee a burden inferior to the value of the gift. ART. 620. Gifts which are to become effective upon the death of the donor partake of the nature of provisions by last will and shall be governed by the laws established for testamentary succession. ART. 621. Gifts which are to produce their effects inter viros shall be governed by the general provisions of contracts and obligations in all that is not determined in this title. ART. 622. Gifts for valuable considerations shall be governed by the laws of contracts, and those for valuable considerations by the provisions of this title with regard to the part exceeding the value of the charge imposed. ART. 623. A gift is consummated upon the donor having knowledge of its acceptance by the donee. 91 CHAPTER SECOND. Persons w(ho can bestow or receive gifts. ART. 624. All persons who can contract and dispose of their property may bestow gifts. ART. 625. All persons who are not especially disqualified by law therefor may accept gifts. ART. 626. Persons who can not enter into contracts can not accept conditional gifts or those involving valuable considerations without the intervention of their legal representatives. ART. 627. Gifts made to persons, conceived but yet unborn, may be accepted by the persons who would legally represent them if they should already be born. ART. 628. Gifts made to incapacitated persons are void even though made in a fictitious manner, under the guise of another contract, by a third person. ART. 629. A gift does not bind the donor nor produce any effect until accepted. ART. 630. The donee must, under pain of nullity, accept the gift in person or through a person authorized by a special power for the purpose or having a general or sufficient power of attorney. ART. 631. Persons accepting a gift representing others who can not do so in person are obliged to obtain the notification and record referred to in article 633. ART. 632. Gifts of personal property may be made verbally or in writing. The verbal one requires the simultaneous delivery of the thing bestowed as a gift. In the absence of this requisite the gift shall produce no effect if not made in writing and if the acceptance does not appear in the same manner. ART. 633. In order that a gift of real property may be valid it shall be made in a public instrument, stating therein in detail the property bestowed as a gift and the amount of the charges, which the donee must satisfy. The acceptance may be made in the same instrument bestowing the gift or in a different one; but it shall produce no effect if not made during the life of the donor. If made in a different instrument the acceptance shall be communi'.Ited to the donor iln an authentic manner, and this proceeding shall ie recorded in both instruments. CHAPTER THIRD. Effects and limitations of gifts. ART. 634. A gift may include all the actual property of the donor or a part thereof, provided the latter reserves, by legal title or in usufruct, 92 what is required for his support in a condition corresponding to his circumstances. ART. 635. A gift can not include future property. By future property is considered that which the donor can not dispose of at the time of the gift. ART. 636. Notwithstanding the provisions of article 634, no person can give nor receive, by way of gift, more than what he can give or receive by will. A gift shall be considered void in all that exceeds said limits. ART. 637. When a gift has been made to several persons jointly, it shall be understood as in equal shares; and there shall be among them no right of accretion unless the donor has otherwise ordered. From these provisions are excepted gifts made jointly to husband and wife, who shall have such right if the donor has not disposed otherwise. ART. 638. The donee is subrogated to all the rights and actions which, in case of eviction, would correspond to the donor. The latter on his side is not obliged to warrant the things bestowed as a gift, unless the gift is for a valuable consideration, in which case the donor shall be liable for the eviction to the amount of the charge. ART. 639. The donor may reserve to himself the right to dispose of some of the property bestowed as gift or of an amount as a charge thereon; but should he die without having made use of this right, the property or the sum which may have been reserved shall belong to the donee. ART. 640. Ownership can also be bestowed as a gift to a person, and the usufruct to another or others, with the limitations established by Art. 781 of this code. ART. 641. The reversion in favor of the donor only, in any case and under any circumstances, may also be validly established, but not in favor of other persons, except in the same cases and under similar limitations, as prescribed in this code for testamentary substitutions. The reversion, stipulated by the donor in favor of a third person in contravention of the provisions of the foregoing paragraph, is void, but it shall not cause the annulment of the gift. ART. 642. When the gift has been bestowed, imposing on the donee the duty of paying the debts of the donor, if the clause should contain no other declaration, the former shall only be bound to pay those con tracted before the bestowal of the gift. ART. 643. Should there be no stipulation as to the payment of debts the donee shall be liable for them only if the gift has been made to defraud creditors. The gift shall always be presumed as having been made to defraud creditors when, at the time of bestowing it, the donor has not reserved to himself property sufficient to pay the debts contracted prior thereto. 93 CHAPTER FOURTH. Revocation and reduction of gifts. ARTICLE 644. Every gift inter vivos made by a person having no legitimate children nor descendants nor legitimized by a subsequent marriage is revoked by the mere fact of the occurrence of any of the following cases: 1. When the donor, after the gift, should have legitimate or legitimized or acknowledged natural children, even should they be posthumous. 2. When the child of the donor, whom he supposed dead when he bestowed the gift, is found to be alive. ART. 645. If the gift is rescinded by the subsequent birth of children, the things bestowed as a gift shall be returned to the donor, or their value, if the donee has sold them. Should they be mortgaged, the donor may cancel the mortgage, paying the sum secured by it, being entitled to demand the sum paid of the donee. When the things can not be restored they shall be appraised at their value at the time of the bestowal of the gift. ART. 646. The action of revocation by the subsequent birth of children shall prescribe after five years, counted from the birth of the last child, or from the legitimation or acknowledgment or from the time news was received of the existence of the one who was believed dead. This action can not be renounced and is transmitted on the death of the donor to his children and to their legitimate descendants. ART. 647. The gift shall be revoked at the instance of the donor if the donee has not complied with any one of the conditions imposed upon him by the former. In such case the things bestowed as a gift shall revert to the donor, all the alienations made by the donee and the mortgages he may have placed thereon being rendered void with the limitation with regard to third parties established in the mortgage law. ART. 648. A gift may also be revoked at the instance of the donor, by reason of ingratitude, in the following cases: 1. When the donee commits any crime against the person, the honor, or the property of the donor. 2. When the donee charges the donor with any of the crimes giving rise to official proceedings or public accusation, even though lie proves it, unless the crime should have been committed against the donee himself, his wife, or the children under his authority. 3. When the latter improperly refuses him support. ART. 649. When a gift is revoked by reason of ingratitude, tlhe alienations and mortgages made prior to the entry of the complaint for revocation in the registry of property shall, nevertheless, be valid. Subsequent ones shall be void. 94 ART. 650. In the case referred to in the first paragraph of the preceding article the donor shall have a right to exact from the donee the value of the properly alienated, which he can not recover from the third ~persons, or the amount for which they have been mortgaged. For the appraisal of the value of such property the time the gift was bestowed shall be taken into consideration. ART. 651. If the gift should be revoked for any of the reasons stated in article 644 or for ingratitude, or when it should be reduced on account of being void, the donee shall not return the fruits, except from the date of the institution of the complaint. If the revocation should be based on the failure to comply with any one of the conditions imposed by the gift, the donee shall, besides the property, return the fruits he may have collected after the nonfulfillment of the condition. ART. 652. The action granted the donor for causes of ingratitude can not be renounced in advance. This action prescribes after one year, counted from the time the donor had knowledge of the fact and was able to institute the action. ART. 653. This action shall not be transmitted to the heirs of the donor if the latter should have been able to institute it and did not do so. Neither can it be instituted against the heirs of the donee, unless at his death the suit had already been brought. ART. 654. Gifts which, in accordance with the provisions of article 636, may be void after computing the net value of the property of the donor at the time of his death must be reduced with regard to the excess, but this reduction shall not prevent them front being valid during the life of the donor, nor the donee from appropriating the fruits. For the reduction of gifts the provisions of this chapter and of articles 820 and 821 of this code shall be observed. ART. 655. The reduction of gifts can be demanded only by the persons who have a right to a legal portion or to an aliquot part of the estate and their heirs or legal representatives. The persons included in the preceding paragraph can not renounce their right during the life of the donor, neither by an express statement nor by giving their consent to the gift. The donees, the legatees who are not to receive an aliquot part, and the creditors of the deceased can not request the reduction or derive any benefit therefrom. ART. 656. If there are two or more gifts, and all can not be covered by the disposable part of the estate, the latest ones shall either be cailceled or reduced with regard to the excess. TITLE III. Successions. GENERAL PROVISIONS. ART. 657. The rights to the succession of a person are transmitted from the moment of his death. 95 ART. 658. Succession is granted either by the will of the man as expressed in a will or, in its absence, by provision of law. The first is called testamentary, the second legal succession. It may also be bestowed partly by will of man and partly by provision of law. ART. 659. The inheritance includes all the property, rights, and obligations of a person, which are not extinguished by his death. ART. 660. An heir is a person succeeding under an universal title; and a legatee, one succeding under a special title. ART. 661. Heirs succeed the deceased in all his rights and obligations by the mere fact of his death. CHAPTER FIRST. Wills. SECTION FIRST.-Capacity to depose by will. ART. 662. All persons who are not expressly prohibited by law may make a will. ART. 663. The following are disqualified to make wills: 1. Persons of either sex under 14 years of age. 2. Persons who permanently or temporarily are not of sound mind. ART. 664. A will made before mental alienation is valid. ART. 665. Whenever a lunatic desires to make a will during a lucid interval, the notary shall appoint two physicians to examine him previously, and he shall not execute it unless the latter answer for the capacity of the testator, including their opinion in the will, which shall be subscribed by the physicians besides the witnesses. ART. 666. In order to judge of the capacity of the testator, his condition at the time of the execution of the will only shall be taken into conlsideration. SECTION SECOND.- Wills in general. ART. 667. The act by which a person disposes of all his property or of a part of it, to take effect after his death, is called a will. ART. 668. The testator may dispose of his property either under title of inheritance or under that of legacy. In case of doubt, even if the testator has not actually used the word "hleir," if his will is clear on this point, his disposition shall be valid ls mnade under a title, either universal or of inheritance. ART. 669. Two or more persons can not make a will conjointly or in the same instrument, either for their reciprocal benefit or for the benefit of a third person. ART. 670. A will is absolutely a personal act. The making of it, either Wholly or partially, can not be left to the discretion of a third person, oll can it be made through a trustee or agent. Neither can there be left to the discretion of a third person the contihltanice of the appointment of heirs or legatees, nor the designation 96 of the portions to which they are to succeed when they are nominally instituted. ART. 671. The testator may intrust to a third person the distribution of the sums he may leave in general to specified classes, such as relatives, the poor, or charitable institutions, and also the designation of the persons or institutions to which such sums are to be applied. ART. 672. Any provision relating to the institution of heirs, bequests, or legacies, made by the testator, referring to private memoranda or papers which after his death may appear in his domicile or outside thereof, shall be void if such memoranda or papers do not fulfill the requisites prescribed for holographic wills. ART. 673. A will executed under duress, deceit, or fraud, shall be void. ART. 674. A person who, by deceit, fraud, or violence, prevents another person, of whom he is the intestate heir, from unrestrictedly executing his last will, shall be deprived of his right to the inheritance without prejudice to the criminal liability he may have incurred. ART. 675. Every testamentary provision shall be understood in the literal meaning of its words, unless it clearly appears that the will of the testator was different. In case of doubt, that which appears most in accordance with the intention of the testator, according to the tenor of the same will, shall be observed. A testator can not prohibit the contest of his will in the cases in which there exists nullity specified by law. SECTION THIRD.-Form of wills. ART. 676. Wills may be ordinary or special. Ordinary wills may be holographic, open, or closed. ART. 677. Military and maritime wills and those executed in foreign countries are considered special. ART. 678. A will is called holographic when the testator writes it in his own hand in the form and with the requisites mentioned in article 688. ART. 679. A will is open whenever the testator expresses his last will in the presence of the persons who must authenticate the act, they being informed of its provisions. ART. 680. A will is closed when the testator, without revealing his last will, declares that it is contained in the instrument which he presents to the persons who are to authenticate the act. ART. 681. The following can not be witnesses to wills: 1. Women, with the exception of the provisions of article 701. 2. Males under age, with the same exception. 3. Persons who are not residents or domiciled in the place of the execution, with the exception of the cases excepted by law. 4. Blind persons and those totally deaf and dumb. 5. Persons who do not understand the language of the testator. 6. Persons of unsound mind. 97 7. Persons who have been condemned for the crimes of forgery of public or private instruments, for perjury, and those suffering the penalty of civil interdiction. 8. The clerks, amanuenses, servants, or relatives within the fourth degree of consanguinity or second of affinity of the notary who authenticates the will. ART. 682. Neither can the heirs and legatees named in an open will, nor the relatives of the same within the fourth degree of consanguinity or second of affinity, be witnesses thereto. There are not included in this prohibition the legatees and their relatives when the legacy is of some personal property or of a sum of small importance compared with the amount of the estate. ART. 683. In order that a witness may be declared disqualified, it is necessary that the reason of his disqualification existed at the time of the execution of the will. ART. 684. The presence of two interpreters, designated by the testator to translate his provision into Spanish, is required for making a will in a foreign language. The will must be written in the two languages. ART. 685. The notary and two of the witnesses who authenticate the will must be acquainted with the testator, and should they not know him he shall be identified by two witnesses who are acquainted with him and are known to the notary and to the attesting witnesses. The notary and the witnesses shall also assure themselves that in their opinion the testator has the legal capacity required to make a will. Witnesses authorizing a will without the attendance of a notary, in the cases of articles 700 and 701, are under the same obligation of being acquainted with the testator. ART. 688. Should it not be possible to identify the person of the testator in the manner prescribed in the preceding article, this circumstance shall be stated by the notary or by the witnesses in a proper case, mentioning the documents which the testator may present for such purpose and giving a personal description of the same. If the will should be contested for such a cause, the burden of proving the identity of the testator is on the person supporting its validity. ART. 687. Any will, in the execution of which, the formalities, respectively established in this chapter, have not been observed, shall be void. SECTION FOURTH.-Holographic wills. ART. 688. Holographic wills can only be executed by persons of age. In order that this will may be valid, it must be drafted on stamped paper, corresponding to the year of its execution, and be written in its entirety and signed by the testator, giving the year, month, and day of its execution. If it should contain words erased, corrected, or interlined, the testator must mention them over his signature, 6433 —7 98 Foreigners may execute holographic wills in their own language. ART. 689. Holographic wills shall be placed in a protocol, being presented for this purpose to the judge of first instance of the last domicile of the testator, or to the one of the place where he died, within five years, counted from the day of his death. Without this requisite it shall not be valid. ART. 690. The person with whom such will may have been deposited must present it to the court as soon as he receives notice of the death of the testator, and should he not do so within the ten following days, he shall be liable for the losses and damages which may be caused by the delay. It may also be presented by any person who may have an interest in the will as heir, legatee, executor, or in any other capacity whatsoever. ART. 691. After the holographic will has been presented and the death of the testator has been proven, the judge shall open it, if it should be in a closed cover, shall rubricate, together with the clerk, all the leaves and shall prove its identity through three witnesses who are acquainted with the handwriting and signature of the testator, and who depose that they have no reasonable doubt that the will was written and signed by the testator's own hand. In the absence of competent witnesses, or if those examined have any doubts, and provided the judge considers it proper, he may employ handwriting experts for the purpose of comparison. ART. 692. For carrying out the proceedings mentioned in the foregoing article, there shall be summoned as soon as possible, the surviving spouse, if there is one, the legitimate ascendants and descendants of the testator, and in the absence of all these, the brothers and sisters. If these persons do not reside within the judicial district, or their existence is unknown, or being minors or incapacitated persons without legitimate representation, the department of public prosecution shall be cited. The persons cited may be present at the observance of such proceedings and may make, at the time, verbally, the proper observations with regard to the authenticity of the will. ART. 693. If the judge considers that the identity of the will has been proven, he shall order that it be placed in the protocol, together with the proceedings, in the registries of the proper notary, who shall give to the interested parties the copies or authenticated copies which may be proper. In other cases he shall refuse to place it in the protocol. Whatever the decision of the judge may be it shall be carried out, notwithstanding objection, the rightsof the persons interested to enforce it in the proper suit being reserved. SECTION FIFTH.-Open wills. ART. 694. An open will shall be executed before a notary, qualified to act at the place of its execution, and three competent witnesses who 99 can see and understand the testator and of whom one, at least, must know how and be able to write. From this rule shall only be excepted the cases expressly mentioned in this section. ART. 695. The testator shall express his last will to the notary and to the witnesses. After the will has been drafted in accordance with the same, stating the place, year, month, day, and hour of its execution, it shall be read aloud in order that the testator may declare if it is in accordance with his wishes. If so, it shall be signed immediately by the testator and by the witnesses who can do so. Should the testator declare that he does not know how, or is not able to sign, one of the attesting witnesses or another person shall do so for him at his request, the notary certifying thereto. This shall also be done if any one of the witnesses can not sign. The notary shall always state that in his judgment the testator has the legal capacity required to execute the will. ART. 696. When the testator, who intends to make an open will, presents his testamentary provisions in writing, the notary shall draft the will in accordance with the same, and shall read it aloud in the presence of the witnesses, in order that the testator may declare if its contents are the expression of his last will. ART. 697. A person who is absolutely deaf shall read his will himself; if he does not know how or can not do so he shall designate two persons to read it in his name, always in the presence of the witnesses and of the notary. ART. 698. If the testator is blind, the will shall be read twice, once by the notary, in accordance with the provisions of article 695, and the other time in the same manner by one of the witnesses or by any other person designated by the testator. ART. 699. All the formalities mentioned in this section shall take place in a single act, and no interruption shall be allowed, except such a one as may be caused by a momentary incident. The notary shall certify, at the end of the will, that all said formalities have been complied with and that he is acquainted with the testator or with the witnesses of identification in a proper case. ART. 700. If the testator is in imminent danger of death, the will may be executed before five competent witnesses without the necessity of a notary. ART. 701. In case of an epidemic, the will may also be executed without the intervention of a notary, before three witnesses over 16 years of age, male or female. ART. 702. In the cases of the two foregoing articles, the will shall be written, when possible; otherwise the will shall be valid, even though the witnesses do not know how to write. ART. 703. The will, executed in accordance with the provisions of the three preceding articles, shall be void if two months should have 100 elapsed from the time the testator was out of danger of death or the epidemic ceased. When the testator dies within said period, the will shall also be void, if within three months after his death application is not made to the court of competent jurisdiction in order that the will may be reduced to a public instrument, whether it was executed in writing or verbally. ART. 704. Wills executed without the authentication of a notary shall be void if they are not afterwards reduced to a public instrument and placed in the protocol in the manner prescribed by the law of civil procedure. ART. 705. When an open will is declared void by reason of noncompliance with the formalities established for each case, the notary who may have authenticated it shall be liable for the losses and damages incurred if the fault arises from his bad faith or from inexcusable negligence or ignorance. SECTION SIXTH-Closed wills. ART. 706. A closed will may be written by the testator or by any other person, at his request, on common paper, giving the place, day, month, and year of its execution. If the testator writes it in person, he shall rubricate all the sheets and affix his signature at the end, after mentioning all the words corrected, erased, or interlined. Should another person write it, at his request, the testator shall put his fall signature on all the sheets and at the foot of the will. If the testator does not know how or can not sign, another person shall do so for him and rubricate every sheet, at his request, stating the cause of the testator's inability. ART. 707. In the execution of a closed will, the following formalities shall be observed: 1. The paper on which the will is drafted shall be placed in a closed and sealed envelope in such a manner that the former can not be extracted without breaking the seal. 2. The testator shall appear with the will closed and sealed, or shall close and seal it at the time in the presence of the notary who is to authenticate it and of five competent witnesses, of whom three, at least, must be able to sign. 3. The testator shall declare, in the presence of the notary and of the witnesses, that the envelope he presents contains his will, stating if it is written, signed, and rubricated by him at the foot, or if written by another, and signed by him at the end and on all of its leaves, or if, because he does not know how or can not sign, another person has done it for him, at his request. 4. On the wrapper of the will, the notary shall draft the proper mernorandum of its execution, specifying the number and marks of the seals with which it is closed, and certifying that the said formalities have 101 been observed, to his acquaintance with the testator or to the identification of his person, in the manner prescribed in articles 685 and 686, and to the testator having, in his judgment, the necessary legal capacity to execute a will. 5. After the memorandum has been drafted and read it shall be signed by the testator and by the witnesses who know how to sign, and the notary shall authenticate it with his mark and signature. If the testator does not know how or can not sign, one of the attesting witnesses or any other person designated by the former shall do so in his name. 6. This circumstance shall also be stated in the memorandum, as well as the place, hour, day, month, and year of the execution. ART. 708. Blind persons and those who do not know how or can not read can not execute a closed will. ART. 709. The deaf and dumb and those who can not speak, but who are able to write, may execute a closed will, the following being observed: 1. The will must be written entirely and signed by the testator, stating the place, day, month, and year. 2. On presenting it, the testator shall write on the outside of the envelope, in the presence of the notary and of five witnesses, that said envelope contains his will and that it is written and signed by him. 3. Immediately after what is written by the testator, the memorandum of execution shall be drafted, the notary certifying that the provisions of the foregoing number have been observed, as well as the provisions of article 707, in so far as may be applicable to the case. ART. 710. After the closed will has been authenticated, the notary shall deliver it to the testator, after placing in the private protocol a certified copy of the memorandum of execution. ART. 711. The testator may keep the closed will in his possession or intrust it to the custody of a person in whom he has confidence, or deposit it in the hands of the authenticating notary for safe-keeping in his archives. In the last case, the notary shall give a receipt to the testator, and shall enter in his private protocol, in the margin or immediately after the copy of the memorandum of the execution, that the will remains in his possession. Should the testator subsequently withdraw it he shall sign a receipt immediately after said memorandum. ART. 712. The notary or a person having in his possession a closed will shall present it to the judge of competent jurisdiction as soon as he learns of the death of the testator. Should he not do so within ten days, he shall be liable for the losses amid damages caused by his negligence. ART. 713. A person who, with malice, does not present the closed will, which may be in his possession, within the period fixed in the Second paragraph of the foregoing article, shall, besides incurring the 102 liability mentioned therein, lose all right to the inheritance, if entitled to it by reason of being an heir ab intestato or as a testamentary heir or legatee. The same penalty shall be incurred by those who maliciously abstract the closed will from the residence of the testator or of the person who has it in custody or on deposit, and by those concealing, tearing, or rendering it useless iii any other manner whatsoever, without prejudice to the proper crimimal liability. ART. 714. For the opening and placing in a protocol of a closed will the provisions of the law of civil procedure shall be observed. ART. 715. A closed will, in the execution of which the formalities prescribed in this section have not been observed, shall be void, and the notary who authenticates it shall be liable for the losses and damages which may arise, if it is proven that the fault arose from malice, negligence, or inexcusable ignorance on his part. It shall be valid, however, as a holographic will, if it is written in full and signed by the testator and has furthermore the other conditions required for such wills. SECTION SEVENTH.-Military wills. ART. 716. In time of war, soldiers in the field, volunteers, hostages, prisoners, and other persons in the army or following the same may execute their wills before any officer having at least the rank of captain. This provision is applicable to members of an army in a foreign country. Should the testator be sick or wounded, he may execute it before the chaplain or physician attending him. If he is with a detachment, before the person in command, even if he be a noncommissioned officer. In all the cases of this article the presence of two competent witnesses shall always be necessary. ART. 717. The persons mentioned in the preceding article may also execute a closed will before a comisario de guerra,* who shall discharge in such case the duties of a notary, the provisions of articles 706 et seq. being observed. ART. 718. Wills executed in accordance with the two foregoing articles must be forwarded as soon as possible to the general headquarters and by the latter to the secretary of war. The secretary, should the testator have died, shall forward the will to the judge of the last domicile of the deceased, and, should he not know it, to the senior judge of Madrid, in order that he may officially cite the heirs and other persons interested in the succession. The latter shall request that it be reduced to a public instrument and be protocoled in the manner prescribed by the Code of Civil Procedure. Should the will be closed, the judge shall officially open it, in the manner prescribed in said law, after citing and with the intervention of *An inspector and auditor connected with the paymaster's department. 103 the department of public prosecution, and, after leaving opened it, shall inform the heirs and other persons concerned of its contents. ART. 719. The wills mentioned in article 716 shall lapse four months after the testator has ceased to be in campaign. ART. 720. During a battle, assault, engagement, and, generally, in all imminent danger of an action of war, a military will may be executed verbally before two witnesses. But this will shall be void if the testator is saved from the danger in view of which it was made. Even though he is not saved, the will shall be void if not formally established by the witnesses before the auditor of war or a judicial official following the army, the subsequent proceedings being in accordance with the manner prescribed in article 718. ART. 721. If the military will should be closed, the provisions of articles 706 and 707 shall be observed, but it shall be executed before the officer and two witnesses required by article 716 for an open will, all of them being required to sign the memorandum of the execution, as well as the testator, if he is able to do so. SECTION EIGHTH.-Maritime wills. ART. 722. Wills, either open or closed, of persons on board a ship during a sea voyage shall be executed in the following manner: When the vessel is a man-of-war, before the paymaster or the person discharging his duties, in the presence of two competent witnesses who can see and understand the testator. The captain of the vessel or the person taking his place shall, furthermore, countersign it. On merchant vessels, the captain or the person taking his place shall authenticate the will in the presence of two competent witnesses. In either case the witnesses shall be selected from the passengers, if there are any; but one of them at least must be able to sign, and he shall do so for himself and for the testator, if the latter does not know how or can not sign. If the will is an open one, the provisions of article 695 shall, furthermore, be observed; and if closed, the provisions of section 6 of this chapter, with the exception of what relates to the number of witnesses and to the intervention of a notary. ART. 723. The will of the paymaster of a man-of-war and of the captain of a merchant vessel shall be authenticated by those who are to substitute them in their office, the provisions contained in the preceding article being observed for the other proceedings. ART. 724. Open wills executed on the high seas shall be preserved by the commander or captain, and they shall be mentioned in the log book. A similar mention shall be made of holographic and closed wills. ART. 725. Should a ship arrive at a foreign port where there is a diplomatic or consular agent of Spain, the commander of the man-ofwar or the captain of the merchant vessel shall deliver to said agent a 104 copy of the open will, or of the memorandum of the execution of the closed one, and of the entry made in the log book. The copy of the will or of the memorandum must bear the same signatures as the original, if the persons who signed it are alive and on board; otherwise it shall be authenticated by the paymaster or captain who may have received the will, or the one discharging his duties, and those on board who took part in the will shall also sign. The diplomatic or consular agent shall have the proceedings of the delivery reduced to writing, and after the copy of the will or of the memorandum of its execution, if the will is closed, has been closed and sealed, he shall forward it with a copy of the record in the log book, through the proper channel, to the Secretary of the Navy, who shall order it deposited in the archives of his Department. The commander or captain who delivers it shall obtain from the diplomatic or consular agent a certificate of having done so and shall enter it in the log book. ART. 726. When the vessel, either a man-of-war or a merchantman, arrives at the first port of the kingdom, the commander or captain shall deliver the original will, closed and sealed, to the local maritime authority, with a copy of the entry made in the log book, and should the testator have died, a certificate proving it. The delivery shall be proven in the manner prescribed in the foregoing article, and the maritime authority shall forward the papers, without delay, to the Secretary of the Navy. ART. 727. If the testator should have died and the will is an open one, the Secretary of the Navy shall proceed in the manner prescribed in article 718. ART. 728. When the will has been executed by a foreigner, on a Spanish vessel, the Secretary of the Navy shall forward the will to the Secretary of State in order that it may be transmitted, in the proper manner, through diplomatic channels. ART. 729. If the will is a holographic one and the testator should die during the voyage, the commander or captain shall take possession of the will for the purpose of keeping it in a safe place, mentioning this fact in the log book, and shall deliver the same to the local maritime authority, in the manner andfor the purposes prescribed in the foregoing article, when the vessel arrives at the first port of the kingdom. The same shall be done should it be a closed will, if the testator had it in his possession at the time of his death. ART. 730. Open and closed wills, executed in accordance with the provisions of this section, shall be void after four months, counted from the day on which the testator landed at a place where he could make a will in the ordinary form. AIT. 731. Should there be danger of shipwreck, the provisions of article 720 shall be applicable to the crews and passengers of men-ofwar or merchantmen. 105 SECTION NINTH.- Wills made in foreign countries. ART. 732. Spaniards may make wills out of the national territory, conforming to the formalities established by the laws of the country in which they may be. They may also make wills on the high seas, during their passage on a foreign vessel, in accordance with the laws of the country to which the vessel belongs. They may also make a holographic will, in accordance with article 688, without the requisite of stamped paper, even in countries the laws of which do not admit such wills. ART. 733. Joint wills, prohibited by article 669, shall not be valid in Spain, executed by Spaniards in a foreign country, even though the laws of the country where they may have been executed authorize them. ART. 734. Spaniards who are in a foreign country may also execute their wills, open or closed, before a diplomatic or consular agent of Spain residing at the place of their execution. In these cases said agents shall act as notaries, and all the formalities established by sections fifth and sixth of this chapter shall be respectively observed, the condition of domicile of the witnesses, however, not being necessary. ART. 735. The diplomatic or consular agent shall forward a copy of the open will, or of the memorandum of execution of the closed will, authenticated with his signature and seal, to the department of state for deposit in its archives. ART. 736. The diplomatic or consular agent with whom a Spaniard may have deposited his holographic or closed will shall forward it to the department of state upon the death of the testator, with the certificate of death. The department of state shall have the notice of the death published in the Gaceta de Madrid, in order that the persons interested in the inheritance may obtain the will and have it protocoled in the manner prescribed. SECTION TENTH.-Revocation and inefficiency of wills. ART. 737. All testamentary provisions are essentially revocable, even though the testator should state in the will his wish or resolution not to revoke them. All clauses annulling future provisions shall be considered as not existing, as well as those in which the testator may order that the revocation of the will should not be valid unless made with certain words or marks. ART. 738. A will can not be revoked, either wholly or in part, except with the formalities required for making it. ART. 739. A prior will is revoked by law by a subsequent and perfect will if the testator does not state in the latter his wish of leaving the former in force, in whole or in part. 106 Nevertheless, a prior will recovers its force if the testator afterwards revokes the subsequent one and expressly declares his wish that the former be valid. ART. 740. The revocation shall be effective, even though the second will becomes void by reason of the incapacity of the heir or of the legatees designated therein, or by the renunciation of the former or of the latter. ART. 741. The acknowledgment of an illegitimate child does not lose its legal force, even though the will in which it was made maybe revoked. ART. 742. A closed will found in the domicile of the testator with the cover torn, or the seals broken, or the signatures authenticating it effaced, erased, or corrected is presumed to be revoked. This will, however, shall be valid should it be proven that this damage occurred without the wish or knowledge of the testator, or should the latter be insane; but, if the cover is found torn and the seals broken, it shall be necessary furthermore to prove the authenticity of the will in order that it may be valid. If the will is found in the possession of another person, it shall be understood that the damage was caused by such person, and it shall not be valid unless its authenticity is proven if the cover is torn or the seals broken; and if both are intact, but with the signatures effaced, erased, or corrected, the will shall be valid unless it be proven that the instrument was delivered in this condition by the testator himself. ART. 743. Wills shall become void or testamentary provisions without effect, in whole or in part, only in the cases expressly prescribed in this code. CHAPTER SECOND. Inheritances. SECTION FIRST.-GCapacity to succeed by will or in the absence thereof. ART. 744. All persons not disqualified by law may succeed by will or in the absence thereof. ART. 745. The following are disqualified to succeed: 1. Abortive infants, by such being understood those who are not included among those described in article 30. 2. Associations or corporations not permitted by law. ART. 746. Church and church chapters, provincial deputations and provinces, municipal councils and municipalities, hospitals and charitable institutions, and those for public instruction, associations authorized or recognized by law, and all other judicial persons may acquire by will, in accordance with the provisions of article 38. ART. 747. Should the testator dispose of the whole or of part of his property for suffrages and pious works for the benefit of his soul, and does it in an indeterminate manner and without specifying its application, the executors shall sell the property and distribute its proceeds, 107 giving one-half of it to the diocesan to be employed in said suffrages and to the expenses and necessities of the church, and the other half to the proper civil governor for the charitable institutions of the domicile of the deceased, and, in their absence, for those of the province. ART. 748. A designation made in favor of a public institution under a condition or imposing a charge thereon shall be valid only if approved by the government. ART. 749. Provisions made in favor of the poor in general, without the designation of persons or of towns, shall be understood as limited to those of the domicile of the testator at the time of his death should it not clearly appear that his will was otherwise. The classification of the poor and the distribution of the property shall be made by the person designated by the testator, in the absence of such person by the executors, and should there be none, by the curate, the mayor, and the municipal judge, who shall decide by a majority of votes any doubts which may arise. The same shall be done if the testator has disposed of his property in favor of the poor of a certain parish or town. ART. 750. Every provision in favor of an unidentified person shall be void unless in some way the person may become identified. ART. 751. A provision made generically in favor of the relatives of the testator is understood as made in favor of those nearest in degree. ART. 752. Testamentary provisions made by the testator during his last illness in favor of the priest who took his confession during the same, of the relatives of the latter within the fourth degree, or of his church, chapter, community, or institute shall not be valid. ART. 753. Neither shall the testamentary provisions of the ward in favor of his guardian, made before the final accounts of the latter have been approved, be valid, even though the testator should die after their approval. However, the provisions made by the ward in favor of the guardian when the latter is his or her ascendant, descendant, brother, sister, or spouse shall be valid. ART. 754. The testator can not dispose of the whole or a part of his estate in favor of the notary who authenticates his will, or of the wife, relatives, or connections of the latter within the fourth degree, with the exception mentioned in article 682. This prohibition is applicable to the witnesses to an open will executed with or without a notary. The provisions of this article are also applicable to the witnesses and persons before whom special wills are executed. ART. 755. A testamentary provision in favor of an incapacitated person, though concealed under the form of a contract involving a valuable consideration or made in the name of a third person, shall be void. ART. 756. The following are disqualified to succeed by reason of unworthiness: 108 1. Parents who have abandoned their children or prostituted their daughters or made attempts against their chastity. 2. He who has been sentenced in a trial for having made attempts against the life of the testator, his spouse, descendants, or ascendants. If the offender should be an heir by force ot law, he shall lose his legal portion. 3. He who has accused the testator of a crime for which the law imposes an exemplary punishment, when the accusation is declared libelous. 4. The heir of age who, knowing of the violent death of the testator, has not denounced it to the courts within a month, unless the latter had already acted ex officio. This prohibition shall cease in cases in which, according to law, there is no obligation to make an accusation. 5. A person sentenced at a trial for adultery with the wife of the testator. 6. He who, by threats, fraud, or violence, forces the testator to make a will or to change it. 7. He who, by the same means, prevents another from making a will or from revoking one already made, or who forges, conceals, or changes a subsequent one. ART. 757. The reasons for unworthiness shall produce no effect if the testator had knowledge thereof at the time of making the will, or if, having been informed of them subsequently, has condoned the same in a public instrument. ART. 758. In order to determine the qualification of the heir or legatee, the time of the death of the person whose succession is in question shall be taken into consideration. In cases iNos. 2, 3, and 5 of article 756, it shall be necessary to wait until the final judgment is rendered, and in No. 4, until the month fixed for the complaint has elapsed. If the institution or legacy should be conditional, the time for the fulfillment of the condition shall, furthermore, be taken into consideration. ART. 759. The heir or legatee who should die before the condition is fulfilled, even though he survives the testator, transmits no rights whatsoever to his heirs. ART. 760. Any person disqualified to succeed, who, in contravention of the prohibition of the preceding articles, has entered into possession of the hereditary property shall be obliged to return it together with its increases and with all the fruits and rents he may have collected. ART. 761. If the person, excluded from the inheritance by reason of incapacity, should be a child or descendant of the testator and should have children or descendants, the latter shall acquire his rights to the legal portion. A person excluded shall not enjoy the usufruct and administration of the property thus inherited by his children. 109 ART. 762. No action can be instituted for a declaration of incapacity after five years have elapsed from the time the incapacitated person took possession of the inheritance or legacy. SECTION SECOND.-Designation of heirship. ART. 763. A person who has no heirs by force of law may dispose by will of all his property or part of it in favor of any person qualified to acquire it. A person, who having heirs by force of law, may dispose of his property only in the manner and with the limitations established in section 5 of this chapter. ART. 764. A will shall be valid, even though it does not contain the designation of an heir, or if the latter does not include all of the property, and even though the person designated does not accept the inheritance or is disqualified to inherit. In such cases, the testamentary provisions, made in accordance with the laws, shall be complied with, and the remainder of the estate shall go to the legal heirs. ART. 765. The heirs designated, without a designation of shares, shall inherit share and share alike. ART. 766. A voluntary heir, who should die before the testator, the person disqualified to inherit, and the person who renounces the inheritance, do not transmit any rights to their heirs, excepting the provisions of articles 761 and 857. ART. 767. The statement of a false reason for the designation of an heir or for the appointment of a legatee shall be considered as not written, unless it appears from the will that the testator would not have made such designation or legacy, had he had knowledge of the falsity of such reason. The statement of a reason contrary to law, even though true, shall also be considered as not written. ART. 768. An heir to whom a certain and specified thing is left shall be considered a legatee. ART. 769. When the testator appoints some heirs individually and others collectively, as when he says, "I designate as my heirs N and N, and the children of N,'" those collectively appointed shall be considered as individually appointed, unless it appears in a clear manner that the will of the testator was otherwise. ART. 770. If the testator should designate his brothers or sisters, 'A(l he has some of full blood and others on the side of the father or mother only, the inheritance shall be divided as in cases of intestacy. ART. 771. When the testator appoints to the succession a person and hlis children, they shall all be understood as designated simultaneously ali(l not successively. ART. 772. The testator shall designate the heir by his name and surllame, and when there are two having the same names, he must state s)ome circumstance by which the one designated may be identified. 110 Even though the testator may have omitted the name of the heir, should he designate him in such manner that there can be no doubt as to what person has been designated, the designation shall be valid. ART. 773. An error in the name, surname, or qualities of the heir shall not vitiate the designation when it may be possible, in any other manner, to know with certainty who is the person appointed. If among persons of the same name and surname there is equality of circumstances, and the latter are such as not to permit the identification of the person who is designated, none of them shall be an heir. SECTION THIRD.-Substitution. ART. 774. The testator may substitute one or more persons in the place of the heir or heirs designated in case they die before him or do not wish or can not accept the inheritance. Simple substitution, without expressing cases, includes the three mentioned in the foregoing paragraph unless the testator has ordered otherwise. ART. 775. Parents and other ascendants may appoint substitutes for their descendants under 14 years of age, of both sexes, in case they should die before said age. ART. 776. The ascendant may appoint a substitute for the descendant over 14 years of age who, in accordance to law, has been declared disqualified on account of being of unsound mind. The substitution referred to in the foregoing paragraph shall be without effect by the will of the incapacitated person made during a lucid interval or after having recovered his reason. ART. 777. The substitutions referred to in the two foregoing articles, when the substitute has heirs by force of law, shall only be valid in so far as they do not prejudice the legitimate rights of the latter. ART. 778. Two or more persons may be substituted for a single one, or a single person for two or more heirs. ART. 779. If the heirs designated in unequal portions should be substituted for each other, they shall have in the substitution the same portions as in the designation, unless it clearly appears that the will of the testator was otherwise. ART. 780. The substitute shall be subject to the same charges and conditions as imposed upon the person designated, unless the testator has expressly disposed to the contrary, or when the charges or conditions are merely personal with regard to the heir designated. ART. 781. Substitutions in trust, by virtue of which the heir is intrusted with preserving and transmitting to a third person the whole or part of the inheritance, shall be valid and effective, provided they do not go beyond the second degree, or that they are made in favor of persons living at the time of the death of the testator. ART. 782. Substitutions in trust can never impair the legal portion. Should they fall upon the third destined to the betterment, they can be made in favor of the descendants only. 111 ART. 783. In order that appointments to substitutions in trust may be valid they must be expressly made. A fiduciary is bound to deliver the inheritance to the cestui que trust without any other deductions than those arising from legitimate expenses, credits, and improvements, except in case the testator has disposed otherwise. ART. 784. The cestui que trust shall acquire the right to the succession from the time of the death of the testator, even though he dies before the fiduciary. The right of the former shall pass to his heirs. ART. 785. The following shall produce no effect: 1. Substitutions in trust not made in an express manner, either by giving them this name or by imposing upon the substitute the absolute obligation of delivering the property to a second heir. 2. Provisions containing perpetual prohibitions to alienate, and even a temporary one, not within the limits fixed in article 781. 3. Those imposing upon the heir the charge of paying a certain income or pension to several persons successively beyond the second degree. 4. Those, the object of which is to leave to a person the whole or part of the inheritance in order that he may apply or invest it, according to secret instructions given him by the testator. ART. 786. The nullity of a substitution in trust shall not prejudice the validity of the designation nor the heirs first designated; the cestui que trust clause shall simply be considered as not written. ART. 787. The provision by which the testator leaves the whole or a part of the inheritance to a person and the usufruct to another shall be valid. If several persons are designated to enjoy the usufruct, not simultaneously, but successively, the provisions of article 781 shall be observed. ART. 788. A provision imposing upon an heir the obligation of periodically investing specified sums in charitable works, as dowries for poor maidens, pensions for students, or in favor of the poor, or for any charitable institution, or of public instruction, shall be valid under the following conditions: If the charge is imposed on real property and is temporary, the heir or heirs may dispose of the encumbered estate, the lien not being removed until its record is canceled. If the charge is perpetual, the heir may capitalize it and invest the capital at interest in a first and sufficient mortgage. The capitalization and investment of the capital shall be made with the intervention of the civil governor of the province after hearing the department of public prosecution. In any case, if the testator should not have established an order for the administration and application of the legacy for charity, the proper administrative authority, according to law, shall do it. ART. 789. All that is prescribed in this chapter with regard to heirs shall also be applicable to legatees. 112 SECTION FOURTH.-Designation of heirs; and conditional legacies or for a term. ART. 790. Testamentary provisions, either by universal or special title, may be made conditionally. ART. 791. The conditions imposed upon heirs and legatees shall be governed by the rules established for conditional obligations in all that is not prescribed in this section. ART. 792. Impossible conditions and those contrary to law and good morals shall be considered as not imposed and shall not prejudice the heir or legatee in any manner whatsoever, even when the testator disposes otherwise. ART. 793. The absolute condition of not contracting a first or subsequent marriage shall be considered as not imposed, unless such condition has been imposed on the widower or widow by the deceased spouse, or by the ascendants or descendants of the same. Nevertheless, usufruct, use, or occupancy, or a pension or personal services may be bequeathed to a person for the time during which he or she remains unmarried or widowed. ART. 794. A provision made under the condition that the heir or legatee shall make in his will some provision in favor of the testator or of another person shall be void. ART. 795. A purely compulsory condition imposed upon the heir or legatee must be fulfilled by him when, after the death of the testator, he is informed thereof. The case is excepted in which the condition has already been fulfilled and therefore can not be carried out anew. ART. 796. When the condition is casual or mixed, it shall be sufficient if it be fulfilled or complied with at any time during the life or after the death of the testator, unless he has ordered otherwise. Should it have existed or should it have been fulfilled at the time of the execution of the will and the testator did not know it, it shall be considered as fulfilled. If he had knowledge thereof, it shall be considered as fulfilled only when of such nature that it can no longer exist or be carried out anew. ART. 797. The statement of the object of the designation or of the legacy or the application to be given to what has been left by the testator, or the charge imposed by the same, shall not be considered as a condition, unless it appears that such was his will. What has been left in this manner may be immediately claimed and is transmissible to the heirs who may secure the fulfillment of the orders of the testator and the repayment of what they may have received, with its fruits and interest, should they fail to comply with this obligation. ART. 798. If, without the fault or a personal act of the heir or lega tee, the designation or the legacy referred to in the foregoing article can not be complied with in the exact terms ordered by the testator, it 118 shall be fulfilled in a manner as nearly analogous and in conformity with his will as possible. When the person interested in its fulfillment or nonfulfillment should prevent its compliance without fault or a personal act of the heir or legatee, the condition shall be considered as fulfilled. ART. 799. Conditions precedent do not prevent the heir or legatee from acquiring their respective rights and transmitting them to their heirs, even before their fulfillment. ART. 800. If the compulsory conditioi imposed upon the heir or legatee is a negative one, or of not giving or not doing something, they shall fulfill it by giving security that they will not do or give what was prohibited by the testator, and that in case of contravention they will return what they may have received, with its fruits and interest. ART. 801. If the heir is designated under a condition precedent, the estate shall be placed in administration until the condition is complied with or until there is a certainty that it can not be fulfilled. The same shall be done when the heir or legatee should not give the security, in the case of the foregoing article. ART. 802. The administration referred to in the foregoing article shall be intrusted to the heir or heirs, unconditionally designated, when among them and the conditional heir there exists the right of accretion. The same shall be understood with regard to legatees. ART. 803. If the conditional heir has no coheirs, or, having them, there does not exist the right of accretion among them, the former shall take charge of the administration upon giving security. Should he not give it, the administration shall be conferred upon the presumptive heir, also giving security; and should neither of them give security, the court shall appoint a third person to take charge of it, also giving security, which shall be given with the intervention of the heir. ART. 804. These administrators shall have the same rights and obligations as administrators of the property of an absentee. ART. 805. A statement of the day or time when the effect of the designation of heir or legatee shall begin or cease shall be valid. In either case the legal successor shall be considered as designated until the period fixed arrives or expires. But in the first case the latter shall not enter into possession of the property until after having given sufficient security with the intervention of the heir designated. SECTION FIFTH.-Legal portions. ART. 806. A legal portion is that part of the property which the testator can not dispose of because the law has reserved it for specified heirs, called, on that account, heirs by force of law. ART. 807. Heirs by force of law are: 1. Legitimate children and descendants, with regard to their legitilalate parents and ascendants. 6433-8 114 2. In the absence of the foregoing, the legitimate parents and ascendants, with regard to their legitimate children and descendants. 3. The widower or widow, the natural children legally acknowledged, and the father or the mother of the latter, in the manner and extent established in articles 834, 835, 836, 837, 840, 841, 842, and 846. ARTr. 808. The legal portion of legitimate children and descendants is composed of two-thirds of the hereditary estate of the father and of the mother. Nevertheless, the latter may dispose of one of the two thirds forming the legal portion in order to applly it as a betterment to their legitimate children and descendants. The remaining third shall be at their free disposal. ART. 809. The legal portion of the parents or ascendants is constituted by one half of the hereditary estate of the children and descendants. The latter may unrestrictedly dispose of the other half, with the exception of what is established in article 836. ART. 810. The legal portion reserved to the parents shall be divided between both equally; if one of the parents should have died, the surviving one shall receive the whole. If the testator leaves neither a father nor a mother, but ascendants in the same degree on the paternal or maternal side, the estate shall be divided equally between both lines. If the ascendants should be of a different degree, it shall wholly belong to the nearest ones of either line. ART. 811. The ascendant who inherits property from his descendant, acquired by the latter for a good consideration from another descendant or from a brother or sister, is obliged to reserve the property he may have acquired by force of law in favor of the relatives within the third degree belonging to the line from which such property originated. ART. 812. Ascendants succeed, to the exclusion of all other persons, to things given by them to their children or descendants who died without issue when the very objects donated are included in the inheritance. Should they have been alienated, they shall succeed to all the actions which the donee may have with regard to them, and to the value should they have been sold, or to the property by which they were substituted if they were bartered or exchanged. ART. 813. A testator can not deprive the heirs of his legal portion except in the cases expressly fixed by law. Neither can he impose upon it any burden, condition, or substitution of any kind whatsoever, with exception of what has been prescribed with regard to the usufruct of the surviving spouse. ART. 814. The preterition of one or of all of the heirs, by force of law, in a direct line, either living at the time of the execution of the will or born after the death of the testator, shall void the designation of heir; but the legacies and betterments shall be valid, in so far as they are not illegal. 115 The preterition of the widower or widow does not annul the designation, but the person omitted shall preserve all the rights granted him by articles 834, 835, 836, and 837 of this Code. If the omitted heirs by force of law die before the testator, the designation shall be valid. ART. 815. The heir by force of law to whom the testator has left, for any reason whatsoever, less than the legal portion due him may demand the fulfillment thereof. ART. 816. All renunciations or compromises with regard to a future legal portion between the persons owing it and their heirs by force of law are void, and the latter may claim it upon the death of the former; but they must bring into the collation whatever they may have received by reason of the renunciation or compromise. ART. 817. Testamentary provisions impairing the legal portion of heirs by force of law shall be reduced on petition of the same in so far as they are illegal or excessive. ART. 818. In order to determine the legal portion, the value of the property remaining on the death of the testator, after deducting all debts and charges, without including therein those imposed in the will, shall be taken into consideration. To the net value of the hereditary estate shall be added the value of all the collationable gifts bestowed by the said testator at the time they were made. ART. 819. Gifts made to children which are not betterments shall be considered as part of their legal portion. Gifts made to strangers shall be charged to the free part of which the testator may have been able to dispose by his last will. In so far as they be illegal or exceed the portion which can be disposed of. they shall be reduced according to the rules of the following articles. ART. 820. After the legal portion has been fixed in accordance with the two foregoing articles, the reduction shall be made as follows: 1. Gifts shall be respected in so far as the legal portion can be covered, reducing or annulling, if necessary, the legacies made in the will. 2. The reductions of the latter shall be made pro rata, without any distinction whatsoever. If the testator has ordered that a certain legacy be paid in preference to others, the former shall not suffer any reduction, until after the latter have been applied in full to the payment of the legal portion. 3. If the legacy consists of a usufruct or life annuity, the value of which may be considered greater than that of the portion which can be disposed of, the heirs by force of law may choose between complying with the testamentary provision or delivering to the legatee the part of the inheritance of which the testator could freely dispose. ART. 821. If the legacy subject to reduction should consist of an estate wh'ch can not be well divided, it shall go to the legatee, if the reduction does not absorb one-half of its value, and otherwise, to the 116 heirs by force of law; but one shall pay the other what may be due them in cash. A legatee having a right to a legal portion may retain the entire estate, provided its value does not exceed the amount of the portion which can be disposed of and the share pertaining to him by way of legal portion. ART. 822. If the heirs or legatees do not wish to make use of the rights granted them. in the foregoing article, any of them who did not have such right may exercise it; should he not wish to do so, the estate shall be sold at public auction at the instance of any o~f the persons interested. SECTION SIXTH.-Betterments (mejoras). ART. 823. The father or the mother may dispose of one of the two thirds destined as the legal portion in favor of one or more of their children or descendants. This portion is called a betterment (mejora). ART. 824. No other incumbrances can be imposed upon the betterment than those which may be established in favor of the heirs by force of law or their descendants. ART. 825. No gift by contract inter vivos, either simple or for a valuable consideration, in favor of children or descendants who may be heirs by force of law shall be considered as a betterment if the donor has not expressly declared his intention to that effect. ART. 826. The promise to give or not to give a betterment made in a public instrument of a marriage agreement shall be valid. Any provision of the testator in contravention of the promise shall not have any effect. ART. 827. The betterment, even if made with the delivery of the property, shall be revokable, unless it has been made in a marriage agreement or by a contract involving a valuable consideration made with a third person. ART. 828. A bequest or legacy made by the testator to one of his children or descendants shall not be considered as a betterment, except when the testator has expressly declared such to be his intention or when it can not be included in the portion he can freely dispose of. ART. 829. A betterment may be given in a specified thing. If its value exceeds the third destined to the betterment and the share of the legal portion corresponding to the person who receives the betterment, the latter must pay the difference in cash to the other persons interested. ART. 830. The authority to give betterments can not be delegated to a third person. ART. 831. Notwithstanding the provisions of the foregoing article, in marriage agreements it shall be valid to stipulate that if one of the spouses dies intestate, the widower or widow, who has not contracted a n~ew marriage, may distribute, according to his or her prudent judgancnt, the property of the deceased, and give betterments in the same 117 to the children in common, without prejudice to the legal portions and to the betterments given by the deceased while alive. ART. 832. If the betterment should not have been granted in a specified thing it shall be paid out of the property of the inheritance, there being observed, in so far as possible, the rules established by articles 1061 and 1062, in order to procure equality of the heirs in the distribution of the property. ART. 833. The legitimate child or descendant receiving a betterment may renounce the inheritance and accept the betterment. SECTION SEVENTH.-Rights of the surviving spouse. ART. 834. The widower or widow who, on the death of his or her spouse, is not divorced, or should be so by the fault of the deceased spouse, shall have a right to a portion in usufruct equal to that corresponding by way of legal portion to each of the legitimate children or descendants who have not received any betterment. If one legitimate child or descendant only survives, the widower or widow shall have the usufruct of the third destined to the betterment, the former preserving the direct ownership until, on the death of the surviving spouse, the title is merged in him. If the spouses should be separated by a suit for divorce, the result of the suit shall be awaited. If there should have been a pardon or a reconciliation between the divorced spouses, the surviving one shall preserve his or her rights. ART. 835. The hereditary portion, allotted in usufruct to the widowed spouse, must be taken from the third of the property destined to the betterments of the children. ART. 836. Should the testator not leave any descendants, but only ascendants, the surviving spouse shall have a right to the third of the estate in usufruct. This third shall be taken from the free half, the testator being allowed to dispose of the ownership of the same. ART. 837. If the testator should leave neither legitimate ascendants nor descendants, the surviving spouse shall be entitled to one-half of the estate also in usufruct. ART. 838. The heirs may satisfy the surviving spouse for his or her part of usufruct, assigning to him or her a life annuity, or the proceeds from specified property, or a sum in cash, making a mutual agreement, and, in the absence thereof, by virtue of a judicial mandate. Until this has been done all the property of the inheritance shall be liable for the payment of the part of the usufruct pertaining to the surviving spouse. ART. 839. In case of the survival of the children of two or more marriages, the usufruct pertaining to the widowed spouse of the second marriage shall be taken from the third at the free disposal of the parents. 118 SECTION EIGHTH.-Rights of illegitimate children. ART. 840. When the testator leaves legitimate children or descendants, and natural children, legally acknowledged, each of the latter shall have a right to one-half of the portion pertaining to each of the legitimate children who have not received any betterment, provided it can be included in the third which may be freely disposed of, from which it must be taken, after the burial and funeral expenses have been deducted. The legitimate children may pay the portion pertaining to the natural ones in cash, or in other property of the estate, according to just rules. ART. 841. Should the testator not leave any legitimate children or descendants, but legitimate ascendants, the acknowledged natural children shall have a right to one-half of the part of the estate which can be freely disposed of by the testator. This is understood without prejudice to the legal portion of the surviving spouse, in accordance with article 836; so that when the spouse survives with acknowledged natural children, what may be lacking to make up their legal portion shall be awarded to them as a naked property right during the life of the spouse. ART. 842. When the testator leaves no legitimate descendants or ascendants, the acknowledged natural children shall be entitled to a third of the inheritance. ART. 843. The rights granted natural children by the foregoing article are transmitted on their death to their legitimate descendants. ART. 844. The hereditary portion of children legitimized by royal concession shall be equal to that established by law in favor of acknowledged natural children. ART. 845. Illegitimate children who have not the character of natural children shall be entitled to support only. The obligation of the person who is to support them shall be transmitted to his or her heirs, and shall continue until said children attain their majority, and in case they should be incapacitated, while the incapacity lasts. ART. 846. The right of succession which the law grants natural children extends reciprocally in similar cases to the natural father or mother. ART. 847. The gifts which the natural child may have received during its life from its father or mother shall be charged to its legal portion. Should they exceed the third which can be freely disposed of, they shall be reduced in the manner prescribed in article 817 et seq. SECTION NINTH.-Disinheritance. ART. 848. Disinheritance can only take place for one of the reasons expressly fixed by law. ART. 849. Disinheritance can only be made in a will mentioning therein the legal reason on which it is based. 119 ART. 850. The proof of the truth of the reason for disinheritance shall be established by the heirs of the testator should the disinherited person deny it. ART. 851. Disinheritance made without a statement of the reason, or for a reason the truth of which, if contradicted, should not be proven or which should not be one of those mentioned in the four following articles, shall annul the designation ot heirship in so far as it prejudices the person disinherited, but the legacies, betterments, and other testamentary provisions, in so far as they do not prejudice said legal portion, shall be valid. ART. 852. Sufficient causes for disinheritance are, in the respective cases, those of disqualification to succeed by reason of unworthiness, mentioned in Nos. 1, 2, 3, 5, and 6 of article 756. ART. 853. Besides those specified in Nos. 2, 3, 5, and 6 of article 756 for the disinheritance of children and descendants, legitimate as well as natural, the following shall be sufficient causes: 1. For having refused, without legal cause, support to the father or ascendant who disinherits him. 2. For having used personal violence or words of gross insult against the testator. 3. If the daughter or granddaughter has become a prostitute. 4. For having been condemned for a crime punished by the penalty of civil interdiction. ART. 854. Besides the causes mentioned in Nos. 1, 2, 3, 5, and 6 of article 756, the following shall also be sufficient causes for disinheriting parents or ascendants, either legitimate or natural: 1. The loss of the parental authority for the causes mentioned in article 169. 2. The refusal of support to the children or descendants without legal cause. 3. An attempt of one of the rarents against the life of the other, should they not have become reconciled. ART. 855. Besides the causes mentioned in Nos. 2, 3, and 6 of article 756, the following shall also be sufficient cause for disinheriting a spouse: 1. Those which are a cause for divorce according to article 105. 2. Those which are a cause for the loss of the parental authority in accordance with article 169. 3. The refusal to support the children or the other spouse. 4. An attempt against the life of the spouse making the will, should there not have been a reconciliation. In order that the causes which are reasons for divorce may also be causes for disinheritance, it is necessary that the spouses do not live under the same roof. ART. 856. A subsequent reconciliation of theoffender with the offended deprives the latter of the right to disinherit and renders a disinheritance already made without effect. 120 ART. 857. The children of the person disinherited shall take lis or her place and shall preserve the rights of heirs by force of law with regard to the legal portion, but the disinherited parent shall not have the usufruct nor the administration of the property of the same. SECTION TENTH.-Legacies and bequests. ART. 858. A testator may charge with legacies and bequests, not only his heir, but also the legatees. The latter shall not be liable for the charge only to the extent of the value of the legacy. ART. 859. When the testator charges one of the heirs with a legacy the latter only shall be obliged to fulfill the same. Should he not charge any one in particular, all shall be liable in the same proportion in which they may be heirs. ART. 860. The person who is obliged to deliver the legacy shall be liable, in case of eviction, if the thing is undetermined and is designated only in class or kind. ART. 861. The legacy of another's property, when the testator knew at the time of bequeathing it that it was not his, is valid. The heir is obliged to acquire it for delivery to the legatee; and should it not be possible for him to do so to pay the latter its just value. The proof that the testator knew that the thing was another's lies with the legatee. ART. 862. If the testator did not know that the thing he bequeathed was another's the legacy shall be void. But it shall be valid should he acquire it after the execution of the will. ART. 863. A legacy made to a third person of a thing belonging to the heir or to a legatee shall be valid, and they, on accepting the succession, must deliver the thing bequeathed or its just value, with the limitation established in the following article. The provisions of the foregoing paragraphs are understood without prejudice to the legal portion of the heirs by force of law. ART. 864. When the testator, heir, or legatee have only a part or a right in the thing bequeathed, the legacy shall be understood as limited to said part or right, unless the testator expressly declares that he bequeathed the thing in its entirety. ART. 865. A legacy of things which are not marketable is void. ART. 866. The legacy of a thing, which at the time of the execution of the will already belonged to the legatee, even though another person has some right thereto, shall not have any effect. If the testator expressly orders that the thing should be freed from this right or charge the legacy shall be valid in that respect. ART. 867. Should the testator bequeath something which is pledged or mortgaged for the security of a recoverable debt, the payment of the latter shall be made by the heir. 121 If the legatee should pay said debt because tlie heir has not done so, the former shall be subrogated in the place and rights of the creditor to proceed against the heir. Any other charge, perpetual or temporary, for which the thing bequeathed is liable, passes with it to the legatee, but in either case the income and interest earned up to the time of the death of the testator are a lien on the inheritance. ART. 868. If the thing bequeathed should be subject to usufruct, use, or occupancy, the legatee must respect said rights until they are legally extinguished. ART. 869. The legacy shall have no effect: 1. If the testator changes the thing bequeathed in such manner that it does not retain either the form or the denomination it previously had. 2. If the testator alienates, for any consideration or reason whatsoever, the thing bequeathed or a part thereof, it being understood, in the latter case, that the bequest is without effect only with regard to the part alienated. If. after the alienation, the thing should revert to the ownership of the testator, even though it were by reason of the nullity of the contract, the bequest shall not be valid, after such fact, excepting the case in which tile reacquisition takes place on account of an agreement of resale. 3. If the thing bequeathed is entirely lost during the life of the testator or after his death, without the fault of the heir. Nevertheless, tlhe person obliged to pay the legacy shall be liable for the eviction, if the thing bequeathed should not have been determined in kind in accordance with the provisions of article 860. ART. 870. The legacy of a credit against a third person or of a release or waiver of a debt of the legatee shall be valid only with regard to that part of the credit or debt existing at the time of the death of the testator. In the first case, the heir shall perform by assigning to the legatee all the actions he may have against the debtor. In the second, by giving the legatee a receipt, should he request one. In both cases the legacy shall include the interest which may be due the testator at the time of his death on the credit or debt. ART. 871. The legacy referred to in the foregoing article is void if the testator, after having made it, should sue the debtor for the payment of his debt, even if said payment should not have been made at the time of the death. Only the right of pledge is waived by the legacy made to the debtor of a thing pledged. ART. 872. The generic legacy of waiver or release of debts includes those existing at the time of the execution of the will, and not subsequent ones. ART. 873. A legacy made to a creditor shall not be considered as a 1)ayment of his credit, unless the testator should so expressly declare. 122 In such case, the creditor shall have a right to collect the excess of the credit or of the legacy. ART. 874. In alternative legacies the provisions for obligations of the same kind shall be observed, excepting the modifications arising from the express will of the testator. ART. 875. A legacy of generic personal property shall be valid even though there may not be things of the same kind in the estate. A legacy of undetermined real estate shall be valid only if there is such property in the estate. The heir shall have the right of option, and shall perform by giving a thing which may not be either of inferior or superior quality. ART. 876. Whenever the testator expressly leaves an option to the heir or to the legatee, the former may give or the latter may select what he may consider best. ART. 877. If the heir or legatee can not make the choice, in case it has been granted him, his right shall pass to the heirs; but a choice once made shall be irrevocable. ART. 878. If the thing bequeathed belonged to the legatee at the date of the will the legacy shall be void, even though it may have been alienated subsequently. If the legatee has acquired it for a good consideration after said date he can claim nothing for it; but if it should have been acquired for a valuable consideration, he may demand of the heir an indemnity for what he may have given to acquire it. ART. 879. A legacy for education lasts until the legatee is of age. That for support lasts during the life of the legatee, if the testator does not dispose otherwise. If the testator has not fixed any sum for said legacies, it shall be fixed in accordance with the position and condition of the legatee and the amount of the inheritance. If the testator was, during his life, in the habit of giving the legatee a certain sum of money or other things by way of support, the same amount shall be considered as bequeathed unless it is greatly disproportionate with the amount of the estate. ART. 880. If a periodical pension, or a fixed annual, monthly, or weekly sum is bequeathed, the legatee may demand the first payment upon the death of the testator, and the following ones at the beginning of each period, without any right of reimbursement, even though thee legatee should die before the expiration of the period begun. ART. 881. A legatee acquires a right to the pure and simple legacies from the death of the testator, and transmits it to his heirs. ART. 882. If the legacy is of a specific and determined thing, belonging to the testator, the legatee acquires the ownership thereof from the death of the former, as well as the fruits or income due, but not those due and unpaid before said death. 123 The thing bequeathed shall, from the same instant, be at the risk of the legatee, who, therefore, shall bear its loss or impairment, as well as being benefited by its increase or improvement. ART. 883. The thing bequeathed shall be delivered, with all its accessories and in the condition in which it may have been on the death of the testator. ART. 884. If the bequest should not be of a specific and determined thing, but generic or of quantity, its fruits and interest from the death of the testator shall belong to the legatee if the testator should have expressly so ordered. ART. 885. The legatee can not take possession of the thing bequeathed of his own authority, but must request its delivery and possession of the heir or of the executor, when the latter should be authorized to give it. ART. 886. The heir shall deliver the thing bequeathed if he is able to do so, and does not perform by paying its value. Legacies in cash must be paid in specie, even though there be none in the estate. The necessary expenses for the delivery of the thing bequeathed shall be for the account of the estate, but without prejudice to the legal portion. ART. 887. If the assets of the estate should not be sufficient to cover all the legacies, their payment shall be made in the following order: 1. Remunerative legacies. 2. Legacies of specified and determined things forming a part of the estate. 3. Legacies which may have been declared by the testator as preferred. 4. Those for support. 5. Those for education. 6. All others pro rata. ART. 888. If the legatee can not or should not wish to accept the bequest, or said bequest for any reason should not be valid, it shall be merged into the whole of the estate, excepting cases of substitution and rights of accretion. ART. 889. The legatee can not accept a part of the legacy and repudiate the other part, should the latter be onerous to him. Should he die before accepting the legacy, leaving several heirs, one of them may accept and another repudiate the part pertaining to him in the legacy. ART. 890. A legatee of two legacies, one of which is onerous, can not renounce the latter and accept the former. If both are either onerous or gratuitous, he is free to accept all of them or repudiate the one he wishes. The heir who is at the same time a legatee may renounce the inheritance and accept the legacy, or renounce the latter and accept the former. 124 ART. 891. If the entire estate is distributed in legacies, the debts and charges of the same shall be charged to the legatees, pro rata in proportion to their shares, unless the testator should have provided otherwise. SECTION ELEVENTHi.-Executors. ART. 892. A testator may appoint one or more executors. ART. 893. A person who is not qualified to bind himself can not be an executor. A married woman may be an executrix with the consent of her husband, which shall not be necessary should she be legally separated from him. A minor can not be an executor, not even with the authorization of the father or of the guardian. ART. 894. Executors may be universal or special. In any case executors may be appointed either severally, successively, or jointly. ART. 895. Should the executors be appointed severally, only those acts performed by all of them together, or by one of them legally authorized by the others, shall be valid; and, in case of disagreement, when the act has been agreed to by the majority. ART. 896. In cases of extreme urgency, one of the several executors may, under his personal liability, perform the acts which may be necessary, giving notice thereof immediately to the others. ART. 897. If the testator should not clearly establish the appointment of joint executors nor determine the order in which they are to discharge their duties, it shall be understood that they have beeii appointed severally, and they shall discharge their duties in tlhe manner prescribed in the two foregoing articles. ART. 898. Executorship is a voluntary office, and it shall be understood as accepted by the person appointed thereto should he not excuse himself within six days following that on which he has received notice of his appointment, or if he was already aware thereof, during the six days following that on which he had knowledge of the death of the testator. ART. 899. An executor who accepts this office is bound to act; bat he may renounce it, alleging a cause which is sufficient in the sound discretion of the judge. ART. 900. The executor who does not accept the office, or renounces it without sufficient cause, shall lose what the testator may have left him, excepting always his right to the legal portion. ART. 901. Executors of wills shall have all the powers expressly colnferred upon them by the testator and which are not contrary to law. ART. 902. Should the testator not have specially determined the powers of the executors they shall have the following: 125 1. To dispose and pay the suffrages and funeral expenses of the testator in accordance with the provisions made by him in his will and, in their absence, according to the customs of the town. 2. To pay, with the knowledge and consent of the heir, the cash legacies. 3. To carefully see to the execution of the other provisions of the will and maintain, when just, its validity in and out of court. 4. To take the necessary precautions for the preservation and custody of the property, with the intervention of the heirs who may be present. ART. 903. Should there not be in the estate cash enough for the payment of the funeral expenses and legacies, and the heirs should not contribute from their own funds thereto, the executors shall sell the personal property; and should the proceeds therefrom not be sufficient, the real property shall be sold, with the intervention of the heirs. If a minor, absentee, corporation, or public institution should have any interest in the estate, the sale of the property shall take place with the formalities prescribed by law for such cases. ART. 904. The executor for whom the testator has not fixed a term must fulfill his office within a year, counted from his acceptance or from the conclusion of the litigation which may have been instituted with regard to the validity or nullity of the will or of any one of its provisions. ART. 905. Should the testator desire to extend the legal term, he must expressly fix the time of the extension. Should he not have fixed it, it shall be understood that the term is extended for one year. If after the expiration of this extension the will of the testator should not yet have been complied with, the judge may grant another term for the time which may be necessary, in view of the circumstances of the case. ART. 906. The heirs and legatees may, by common consent, extend the term of the executorship for the time they may consider necessary; but if the agreement is only that of a majority the extension can not exceed one year. ART. 907. The executors shall submit an account of their administration to the heirs. Should they have been appointed, not in order to deliver the property to determined heirs, but to invest or distribute the same in the rlanner ordered by the testator in the cases allowed by law, they shall submit their accounts to the judge. Any provision of the testator in contravention of this article shall be void. ART. 908. Executorship is a gratuitous office. The testator, nevertheless, may assign the executors the remuneration he may consider proper; all without prejudice to the right they may have to collect what may be proper for their work in the division, or for any other professional Services. 126 If the testator bequeathes or designates jointly any remuneration for the executors, the shares of those who do not accept the office shall accrue to those who may discharge it. ART. 909. An executor can not delegate the office unless he has express authority therefor from the testator. ART. 910. Executorship terminates by the death, incapacity, renunciation, or removal of the executor, and by the lapse of the term fixed by the testator, by law, and, in a proper case, by the persons interested. ART. 911. In the cases of the foregoing article, and in case the executor has not accepted the office, the execution of the will of the testator shall devolve upon the heirs. CHAPTER THIRD. Intestate succession. SECTION FIRST.-General provisions. ART. 912. Legitimate succession takes place1. If a person dies without a will, or with a void will, or which may have lost its validity subsequently. 2. When the will does not contain the designation of heirship to all or part of the property, or does not dispose of all that belongs to the testator. In such case legitimate succession shall take place only with regard to the property of which the testator has not disposed. 3. When the condition imposed for the designation of heirship is lacking, or if the heir dies before the testator, or repudiates the inheritance, without having a substitute, and there being no right of accretion. 4. When the heir designated is disqualified to succeed. ART. 913. In the absence of testamentary heirs, the law gives the inheritance, according to the rules hereafter set forth, to the legitimate and natural relatives of the deceased, to the widower or widow, and to the State. ART. 914. The provisions relating to disqualification to succeed by will are also applicable to intestate successions. SECTION SECOND.-Relationship. ART. 915. The nearness of relationship is determined by the number of generations. Each generation forms one degree. ART. 916. A series of degrees forms the line, which may be direct or collateral. A direct line is one constituted by a series of degrees among persons descending one from the other. A collateral line is that constituted by a series of degrees among persons not descending one from the other, but proceeding from a common trunk. ART. 917. The direct line is either descending or ascending. 127 The former joins the head of the family with those descending from him. The latter joins a person with those from whom he descends. ART. 918. In the lines as many degrees are counted as there are generations or persons, deducting the progenitor. In the direct line the ascent is made only to the trunk. Thus the son is one degree removed from the father, two from the grandfather, and three from the great-grandfather. In the collateral line, the ascent is made up to the common trunk, and then a descent to the person with whom the computation is made. Therefore the brother is two degrees removed from the brother, three from the uncle, brother of his father or mother, four from the first cousins, and so forth. ART. 919. The computation referred to in the foregoing article governs in all matters, except in those which have relation to the obstacles to canonical marriage. ART. 920. Whole blood relationship is the relation in the father's and mother's line at the same time. ART. 921. In inheritances the relative nearest in degree excludes the most remote excepting the right of representation in proper cases. Relatives who are in the same degree shall inherit in equal shares, with the exception of what is provided in article 949 with regard to whole blood relationships. ART. 922. Should there be several relatives in the same degree and one or more of them should not wish to or could not succeed, his portion shall accrue to the others of the same degree, reserving the right of representation in a proper case. ART. 923. If the inheritance is repudiated by the nearest relative should there be one only, or by all the nearest relatives, designated by law, should there be several, those of the following degree shall inherit inl their own right, without being able to represent those repudiating the inheritance. SECTION THIRD.-Representation. ART. 924. The right which all the relatives of a person have to succeed him in all the rights which he would have if alive, or which he -Might have inherited, is called the right of representation. ART. 925. The right of representation shall always take place in the direct descending line, but never in the ascending. In the collateral line it shall take place only in favor of the children of brothers or sisters, whether they be of the whole or half blood. ART. 926. Whenever the inheritance is taken by representation, the division of the estate shall be made per stirpes; thus the representative or representatives do not inherit any more than that which the person they represent would inherit if alive. 128 ART. 927. When children of one or more brothers or sisters of the deceased survive, they shall succeed the latter by representation, if uncles also survive. But if they alone survive they shall inherit in equal shares. ART. 928. The right of representing a person is not lost by the renuinciation of the inheritance. ART. 929. A living person can not be represented except in cases of disinheritance or incapacity. CHAPTER FOURTH. Order of succession according to diversity of lines. SECTION FIRST.-Descending direct line. ART. 930. Succession pertains, in the first place, to the descending direct line. ART. 931. Legitimate children and their descendants succeed the parents and other ascendants, without distinction of sex or age, even though they spring from different marriages. ART. 932. The children of the deceased shall always inherit from him in their own right, dividing the inheritance in equal shares. ART. 933. The grandchildren and other descendants shall inherit by right of representation, and if one of them should die, leaving several heirs, the portion pertaining to him shall be divided among the latter in equal parts. ART. 934. Should any children and descendants of other deceased children survive, the former shall inherit in their own right, and the latter by right of representation. SECTION SECOND.-Ascending direct line. ART. 935. In the absence of legitimate children and descendants of the deceased, his ascendants shall inherit from him, to the exclusion of collaterals. ART. 936. The father and mother, if living, shall inherit share and share alike. Should one of them only survive, he or she shall succeed to the son's entire estate. ART. 937. In the absence of father or mother the ascendants nearest in degree shall inherit. Should there be several of equal degree belonging to the same line, they shall divide the inheritance per capita; should they be of different lines but of equal degree, one-half shall go to the paternal and the other half to the maternal ascendants. In each line the division shall be made per capita. ART. 938. The provisions of the two preceding articles are understood without prejudice to what is prescribed in articles 811 and Sl 2, which is applicable to intestate as well as testamentary successions. 129 SECTION THIRD.i-Acknowledged natural children. ART. 939. In the absence of legitimate descendants and ascendants, the natural children legally acknowledged, and those legitimized by royal concessions, shall succeed to the entire estate of the deceased. ART. 940. If, together with the natural or legitimized children, there should survive descendants of another deceased natural or legitimized child, the former shall succeed in their own right and the latter by right of representation. ART. 941. The hereditary rights granted by the two preceding articles to a natural or legitimized child shall be transmitted upon its death to its descendants, who shall inherit by right of representation from their deceased grandparent. ART. 942. In case legitimate descendants and ascendants survive, the natural and legitimized children shall receive from the inheritance only the portion granted them by articles 840 and 841. ART. 913. A natural and legitimized child has no right to succeed ab intestato the legitimate children alnd relatives of the father or mother who has acknowledged it; nor shall such children or relatives inherit from the natural or legitimized child. ART. 944. If the acknowledged natural or legitimized child should die without issue, either legitimate or acknowledged by it, the father or mother who acknowledged it shall succeed to its entire estate, and if both acknowledged it and are alive, they shall inherit from it share and share alike. ART. 945. In the absence of natural ascendants the natural and legitimized children shall be succeeded by their natural brothers or sisters, according to the rules established for legitimate brothers or sisters. SECTION FOURTH. -Sccessions of collaterals asod of spouses. ART. 946. In the absence of the persons included in the three preceding sections, the collateral relatives and the spouses shall inherit in the order established in the following articles. ART. 947. Should there be only brothers or sisters of the whole blood, they shall inherit in equal shares. ART. 948. Should brothers survive witl nephews, children of brothers of the whole blood, the former shall inherit per capita and the latter per stirpes. AlT. 949. Should brothers of thie whole blood survive with brothers (f half blood, the former shall receive a share in the inheritance double that of the latter. ART. 950. In case there are only brothers of half blood, some on the father's and some on the mother's side, all shall inherit equal shares without distinction of property. 6433 -9 130 ART. 951. Children of brothers of half blood shall succeed per capita or per stirpes, according to the rules established for brothers or sisters of the whole blood. ART. 952. In the absence of brothers or sisters and of nephews, children of the same, be they or not of the whole blood, the surviving spouse, not separated by a final decree of divorce, shall succeed to the entire estate of the deceased. ART. 953. Should there be brothers or sisters or children of brothers or sisters, the surviving widow or widower shall have a right to receive the part of the inheritance in usufruct assigned him or her in article 837. ART. 954. Should there be neither brothers or sisters nor children of brothers or sisters nor a surviving spouse, the other collateral relatives shall succeed to the estate of the deceased. The succession of the latter shall follow without distinction of lines or preference among them by reason of the whole blood. ART. 955. The right to inherit ab intestato shall not extend beyond the sixth degree of relationship in the collateral line. SECTION FIFTH.-Succession by the State. ART. 956. In the absence of persons having a right to succeed in accordance with the provisions of the preceding sections, the State shall inherit, the property being destined to charitable institutions and those for gratuitous instruction, in the following order: 1. Municipal charitable institutions and free schools of the domicile of the deceased. 2. Those of either class in the province of the deceased. 3. Charitable and educational institutions of a general character. ART. 957. The rights and obligations of charitable and educational institutions, in the case of the preceding articles, shall be the same as those of the other heirs. ART. 958. In order that the State may take possession of the prop. erty of the inheritance, a previous judicial declaration of heirship must be made awarding the property to the same because of the absence of legitimate heirs. CHAPTER FIFTH. Provisions common to inheritance by or without will. SECTION FIRST-Precautions to be adopted when the widow remains pregnant. ART. 959. When the widow believes that she has been left pregnant, she must notify those having in the inheritance rights of such a character that they will disappear or be reduced by the birth of a posthumous child. ART. 960. The persons interested, referred to in the preceding article, may request the municipal judge or the judge of first instance, when there is one, to order the proper precautions taken in order to prevent a supposititious parturition or to accept the child born as viable, when, in truth, it is not so. 131 The judge shall take care that the measures he orders taken shall not be offensive either to the modesty or to the liberty of the widow. ART. 961. Whether the notice referred to in article 959 has been given or not, when the time of the parturition approaches, the widow must notify the persons interested thereof. The latter shall have a right to appoint a person in whom they have confidence in order that he may ascertain the fact of the delivery. If the person appointed should be rejected by the widow, the judge shall appoint a physician or a woman. ART. 962. The omission of these formalities shall not prejudice the legitimacy of the parturition, which, if impugned, may be proven by the mother or by the child legally represented. The action to impugn on the part of those having such right shall prescribe after the periods fixed in art. 113. ART. 963. When the husband has acknowledged in an instrument, either public or private, the fact of the pregnancy of his wife she shall be excused from giving the notice required by art. 959, but she must comply with the provisions of art. 961. ART. 964. A widow who remains pregnant, even though she be rich, must be given support from the estate, taking into consideration the portion thereof which may pertain to the posthumous child, should it be born and be viable. ART. 965. During the time intervening, until the parturition arrives, or until the fact is established that it will not take place, either on account of a miscarriage or because the maximum time for the gestation has passed, the security and administration of the property shall be provided for in the manner established for compulsory testamentary proceedings. ART. 966. The division of the inheritance shall be suspended until the parturition or miscarriage takes place, or the lapse of time shows tle widow was not pregnant. However, an administrator may pay the creditors after a judicial mandate. ART. 967. After the delivery or miscarriage has taken place, or after the period of gestation has elapsed, the administrator of the estate shall terminate his office and shall give an account of his management to the heirs or to their legal representatives. SECTION SECOND.-Property to be set apart. ART. 968. Besides the reservation imposed by art. 811, the widower or widow contracting a second marriage shall be obliged to set apart Ior the children and descendants of the former the ownership of all tle property he may have acquired from the deceased spouse by will, l y intestate succession, by gift, or for an y other good consideration, but not his or her half of the conjugal profits. ART. 969. The provision of the preceding article is applicable to property which has been acquired for the considerations mentioned tilerein, by the widower or widow from any of the children of the first 132 marriage, and to that received from the relatives of the deceased by reason of personal considerations for the same. Art. 970. The obligation to set apart shall cease when the children of a marriage, of age and who may have a right to the estate, should expressly renounce it, or when things given or left by the children to their father or mother, with a knowledge that they had married a second time, are in question. ART. 971. The reservation shall also cease if on the death of the father or mother who contracted a second marriage no legitimate children or descendants of the first marriage survive. ART. 972. Notwithstanding the obligation to set apart, the father or mother, married a second time, may grant betterments in the property to be set apart to any of the children or descendants of the first marriage, in accordance with the provisions of article 823. ART. 973. If the father or mother should not have made use in whole or in part of the right granted him or her in the foregoing article, the legitimate children and descendants of the first marriage shall succeed to the property to be set apart in accordance with the rules prescribed for succession in the descending line, even if, by virtue of a will, he or she should leave unequally inherited from the first deceased spouse or should have renounced or repudiated his or her inheritance. The child, justly disinherited by the father or by the mother, shall lose all right to the property set apart, but should it have legitimate children or descendants the provisions of article 857 shall be observed. ART. 974. Alienations of real property to be set apart, made by the surviving spouse before contracting a second marriage, shall be valid with the obligation to secure, from the moment of said marriage, the value of the same to the children and descendants of the first marriage. ART. 975. Alienations of real property to be set apart, which may have been made by the widower or widow after contracting a second marriage, shall be valid only if on his or her death no legitimate children or descendants of the first marriage survive, without prejudice to the provisions of the mortgage law. ART. 976. Alienations of personal property, made before or after contracting a second marriage, shall be valid, always reserving the obligation to pay an indemnity. ART. 977. A widower or widow, on contracting a new marriage, shall have an inventory made of all the property subject to be set apart, enter in the registry of property that such real estate is subject to be set apart in accordance with the provisions of the mortgage law and shall have the personal property appraised. ART. 978. A widower or widow, on remarrying, is also bound to secure by a mortgage: 1. The restitution of the personal property, not alienated, in the condition in which it was at the time of the death of the deceased, should it be paraphernal, or arising from unappraised dowry; or its value, if arising from an appraised dowry. 133 2. The payment of the damages caused, or which may be caused by his or her fault or neglect. 3. The return of the sums which may have been received for the personal property alienated or the delivery of the value it had at the time of the alienation, if the latter should have been made for a good consideration. 4. The value of the real estate validly alienated. ART. 979. The provisions of the preceding article for the case of a second marriage shall also be observed in third and subsequent marriages. ART. 980. The obligation to set apart, imposed in the preceding articles, shall be applicable to the widower or widow, who, even though he or she does not contract a new marriage, may subsequently have an acknowledged natural child, or one judicially declared as such. Said obligation shall be effective from the date of the birth of said child. SECTION THmRD.-The right of accretion. ART. 981. In legitimate successions the portion of the person who repudiated the inheritance shall always accrue to the coheirs. ART. 982. In order that a testamentary succession in the right of accretion may take place it is necessary1. That two or more persons are designated to the same inheritance or to the same portion thereof without a special designation of shares. 2. That one of the persons designated dies before the testator or renounces the inheritance or is disqualified to receive it. ART. 983. It slhall be understood that a designation has been made by portion only in case the testator may have expressly assigned a share to each heir. The phrase '*one-half to each or in equal I)arts," or any other which, though designating an aliquot part, should not fix it numerically or in such manner as to make each of them tlhe owner of an estate severally, does not exclude the right of accretion. ART. 984. The heirs, to whom the inheritance accrues, shall succeed to all the lights and obligations which the one who did not wish or could not receive it would have had. ART. 985. Among heirs by force of law the right of accretion shall take place only when the part which can be freely disposed of is left to two or more of them, or to any one of them, and to a stranger. Should the part repudiated be the legal portion, the other coheirs shall succeed to it in their own right, and not by the right of accretion. ART. 986. In testamentary successions, when the right of accretion is not proper, the rejected portion of the heir designated, for whom no substitute has been appointed, shall pass to the legal heirs of the testator who shall receive it with the same charges and obligations. ART. 987. The right of accretion shall also be proper between the legatees and the usufructuaries in the manner established for heirs. 134 SECTION FOURTH.-Acceptance and repudiation of the inheritance. ART. 988. Acceptance and repudiation of the inheritance are acts entirely voluntary and free. ART. 989. The effects of the acceptance and repudiation shall always retroact to the moment of the death of the person whose property is inherited. ART. 990. Acceptance or repudiation of the inheritance can not take place, either partially, for a certain period, nor conditionally. ART. 991. No person can accept nor repudiate an inheritance, without being certain of the death of the person from whom he is to inherit and of his rights to the inheritance. ART. 992. Any person having the free disposal of his property may accept or repudiate an inheritance. An inheritance left to minors or incapacitated persons may be accepted in the manner prescribed in number 10 of article 269. Should the guardian accept by himself, the acceptance shall be considered as made under benefit of inventory. The acceptance of an inheritance left to the poor shall pertain to the persons designated by the testator to classify and distribute the property, and, in their absence, to those mentioned in article 749, and it shall also be understood as accepted under benefit of inventory. ART. 993. The legal representatives of associations, corporations, and institutions qualified to acquire may accept the inheritance left to the same; but in order to repudiate it they require judicial approval, after hearing the Department of Public Prosecution. ART. 994. Public official establishments can neither accept nor repudiate inheritances without the approval of the Government. ART. 995. A married woman can not accept nor repudiate an inheritance, except with the permission of her husband, or, in his absence, with the approval of the judge. In the latter case, the property of the conjugal partnership already existing shall not be liable for the debts of the estate. ART. 996. The deaf and dumb, who may know how to read and write, shall accept or repudiate the inheritance personally or through an attorney. Should they not be able to read or write, their guardian shall accept it under benefit of inventory, subject to the provisions of article 218 with regard to said disability. ART. 997. The acceptance and repudiation of an inheritance once made are irrevocable, and cannot be impugned except when they are tainted from alny of the defects which annul the consent, or when an unknown will appears. ART. 998. Inheritances may be accepted purely and simply or under benefit of inventory. ART. 999. Pure and simple acceptances may be express or implied. An express acceptance is one made in a public or private instrument. 135 Implied acceptance is one made by acts which necessarily imply a wish to accept, or acts which no one should have a right to execute except in the capacity of an heir. Acts of mere preservation, or provisional administration, do not imply the acceptance of the inheritance, if, at the same time, the title and character of heir have not been assumed. ART. 1000. An inheritance is considered as accepted: 1. When the heir sells, gives, or assigns his right to a stranger, to all his coheirs, or to one of them. 2. When the heir renounces it, even gratuitously, for the benefit of one or more of his coheirs. 3. When he renounces it for a consideration in favor of all his coheirs indiscriminately, but if this renunciation should be gratuitous, and the coheirs, in whose favor it is made, are those to whom the portion renounced must accrue, the inheritance shall not be considered as accepted. ART. 1001. Should the heir repudiate the inheritance to the prejudice of his own creditors, the latter may request the judge to authorize them to accept it in the name of the former. The acceptance shall be of benefit to the creditors only in so far as it covers the amount of their credits. The excess, should there be any, shall not belong in any case to the renouncer, but shall be awarded to the persons to whom, according to the rules of this code, it may pertain. ART. 1002. The heirs who have taken or concealed any property of the inheritance lose the right to renounce it and retain only the character of pure and simple heirs without prejudice to the penalties which they may have incurred. ART. 1003. Through an acceptance, pure and simple, or without benefit of inventory, the heir shall be liable for all the charges on the estate, not only with the p roperty of the same, but also with his own ART. 1004. No action can be instituted against the heir to compel him to accept or repudiate it until nine days have elapsed from the death of the person whose inheritance is in question. ART. 1005. Should a third person in interest institute a suit to compel the heir to accept or to repudiate the inheritance, the judge shall tix a period for the latter, not exceeding thirty days, within which he shall declare his intention, warning him that should he not do so the inheritance shall be considered as accepted. ART. 1006. Upon the death of the heir, without having accepted or repudiated the inheritance, the rights he may have had are transmitted to his heirs. ART. 1007. Should there be several heirs designated to an inheritance, some of them may accept and some repudiate it. Every one of the heirs shall enjoy the same liberty to accept it purely and simply, or under benefit of inventory. 136 ART. 1008. The repudiation of an inheritance shall be made in a public or authentic instrument, or in writing presented to the judge of competent jurisdiction in testamentary or intestate proceedings. ART. 1009. Any person designated to an inheritance by a will and ab intestato and who repudiates it in the first capacity is considered as having repudiated in both characters. Should he repudiate it as an intestate heir and without having knowledge of his testamentary character, he may yet accept it in the latter capacity. SECTION FIFTH.-Benefit of inventory and right to deliberate. ART. 1010. Every heir may accept an inheritance under benefit of inventory, even though the testator should have forbidden it. He may also request the making of the inventory before accepting or repudiating the inheritance, in order to deliberate on this point. ART. 1011. The acceptance of the inheritance, under the benefit of inventory, may be made before a notary or in a writing before any of the judges of competent jurisdiction in testamentary or intestate proceedings. ART. 1012. Should the heir referred to in the preceding article be abroad, he may make said declaration before a diplomatic or consular agent of Spain, who may be authorized to discharge the duties of a notary in the place of the execution. ART. 1013. The declaration referred to in the preceding articles shall not produce any effect whatsoever unless it be preceded or followed by a true and exact inventory of all the property of the estate, made with the formalities and within the periods fixed in the following articles. ART. 1014. An heir who may have in his possession the property of the estate or a part thereof, and who may wish to make use of the benefit of inventory or of the right to deliberate, shall state this to the judge of competent jurisdiction in testamentary or intestate proceedings, within ten days following that on which he has become aware that he is such an heir, if he resides in the place where the deceased may have died. If he resides outside of it the period shall be thirty days. In either case the heir must request, at the same time, the making of the inventory and the citation of the creditors and legatees in order that they may be present thereat if they wish to. ART. 1015. If the heir should not have in his possession the inheritance or a part of it, or has not taken any steps as such heir, the periods fixed in the preceding article shall be counted from the day following that on which the period fixed by the judge for accepting or repudiating the inheritance expires, in accordance with article 1005, or from the day on which he may have accepted it or has acted as heir. 137 ART. 1016. With the exception of the cases referred to in the two preceding articles, if no action should have been brought against the heir, he may accept, under the benefit of inventory, or with the right to deliberate while the action to claim the inheritance does not prescribe. ART. 1017. An inventory shall be begun within the thirty days following the citation of the creditors and legatees and shall be finished within sixty days more. If, by reason of the property being situated at a long distance, or being very valuable, or for any other sufficient cause, said sixty days should appear insufficient, the judge may extend this period for such a time as he may deem necessary, which can not exceed one year. ART. 1018. If by the fault or negligence of the heir the inventory is not began or finished within the periods, and with the formalities prescribed in the preceding articles, it shall be understood that he accepts the inheritance purely and simply. ART. 1019. An heir, who should have reserved to himself the right to deliberate, must state to the court, within thirty days, counted from the day following that on which the inventory has been concluded, whether he accepts or repudiates the inheritance. If said thirty days have elapsed without said statement being made it shall be understood that he accepts it purely and simply. ART. 1020. In any case the judge may, at the instance of an interested person, during the making of the inventory and until the acceptance of the inheritance, provide for the administration and custody of the inheritance, in accordance with the provisions of the law of civil procedure with regard to testamentary proceedings. ART. 1021. A person who judicially claims an inheritance, which another has liad in his possession for more than one year and who should win the suit, shall not be obliged to make an inventory in order to enjoy said benefit, and he shall be liable for the charges on the estate only with the property which may have been delivered to him. ART. 1022. The inventory made by the heir, who afterwards repudiates the inheritance, shall benefit the substitutes and the intestate heirs, with regard to whom the thirty days for deliberation and in which to make the statement prescribed by article 1019 shall be counted from the day following that on which they received notice of the repudiation. ART. 1023. The benefit of inventory produces the following effects in favor of the heir: 1. The heir shall not be bound to pay the debts and other charges on the inheritance except in so far as the property of the same may go. 2. He retains against the estate all the rights and actions which he may have had against the deceased. 3. His private property shall not be confused for any purpose whatsoever, to his injury, with the property belonging to the estate. ART. 1024. The heir shall lose the benefit of inventory: 1. If having knowledge thereof he fails to include in the inventory any of the property, rights, or actions of the inheritance. 138 2. If before concluding the liquidation of the debts and legacies he should alienate any property of the estate without judicial authorization, or that of all the persons interested, or if he should not apply the value of what is sold in the manner specified at the time the authorization was granted him. ART. 1025. During the making of the inventory and the period granted for deliberating the legatees can not demand the payment of their legacies. ART. 1026. Until all the known creditors and the legatees have been paid, it shall be understood that the estate is under administration. The administrator, whether it be the heir himself or any other person, shall have, as such, the representation of the estate to exercise all the actions pertaining thereto, and answer all complaints instituted against the same. ART. 1027. The administrator can not pay the legacies until he has paid all the creditors. ART. 1028. Should there be a pending suit among the creditors with regard to the preference of their credits, they shall be paid in the order and according to the degree fixed by the final judgment of graduation. Should no suit be pending among the creditors, those presenting themselves first shall be paid first; but should it appear that one of the known credits is preferred, the payment shall not be miade without previous security being given in favor of the creditor having a better right. ART. 1029. If after the legacies are paid other creditors should appear, the latter shall have a right to make claims against the legatees only in case sufficient property should not remain to pay them. ART. 1030. If for the payment of credits and legacies the sale of the hereditary estate should be necessary, it shall take place in the manner established by the law of civil procedure with regard to intestate and testamentary proceedings, unless all the heirs, creditors, and legatees come to a different agreement. ART. 1031. If the hereditary estate should not be sufficient for the payment of the debts and legacies, the administrator shall render an account of his administration to the-creditors and legatees who have not been paid in full, and he shall be liable for the damages caused the estate through his fault or negligence. ART. 1032. After the creditors and legatees are paid, the heir shall have the full enjoyment of the remainder of the estate. Should the estate have been administered by another person, he shall give an account of his administration to the heir, under the liability imposed by the preceding article. ART. 1033. The cost of the inventory and the other expenses arising from the administration of the inheritance, accepted under the benefit of inventory, and the defense of its rights, shall be charged to the said estate. The costs which the heir may have been personally adjudged to pay by reason of his deceit or bad faith are excepted. 139 The same shall be understood with regard to the costs arising from making use of the right to deliberate, if the heir repudiates the inheritance. ART. 1034. The private creditors of the heir can not interfere with the operations of the estate, accepted by the latter under benefit of inventory, until the creditors of the same and the legatees have been paid; but they may demand the retention or the attachment of the remainder which may be left the heir. CHAPTER SIXTH. Collation and division. SECTION FIRST.-Collation. ART. 1035. An heir by force of law surviving with others of the same character to a succession must bring into the hereditary estate the property or securities he may have received from the deceased during the life of the same, by way of dowry, gift, or for any good consideration, in order to compute it in fixing the legal portions and in the account of the division. ART. 1036. Collation shall not take place among heirs by force of law if the donor should have so expressly ordered, or if the donee should repudiate the inheritance, excepting the case in which the gift is to be reduced by reason of illegality. ART. 1037. What is left by will is not subject to collation, if the testator did not order otherwise, the legal portions in any case being reserved. ART. 1038. When grandchildren inherit fromn their grandparents in representation of their parents, surviving with their uncles or cousins, they shall bring to collation all that their parents, if alive, would have been required to bring, even though they may not have inherited it. They shall also bring to collation whatever they may have received from the testator during his life, unless the testator has disposed otherwise, in which case his will must be respected should it not prejudice the legal portion of the coheirs. ART. 1039. Parents are not obliged to bring to collation in the inheritance of their ascendants what may have been bestowed as a gift by the latter to their children. ART. 1040. Neither shall the gifts bestowed upon the spouse of the chiild be brought to collation, but should they have been made by the parent to both of them conjointly, the child shall be obliged to bring to collation one-half of the thing bestowed as a gift. ART. 1041. Expenses for support, education, for sickness, even though they be extraordinary, apprenticeship, ordinary equipment, or usual presents are not subject to collation. ART. 1042. Expenses which may have been incurred by the parents in giving their children a professional or artistic career shall not be 140 brought to collation unless the parent so orders or should they prejudice the legal portion; but when it is legal to bring them to collation, the sum which the child would have spent, if it had lived in the house and company of its parents, shall be deducted therefrom. ART. 1043. The amounts paid by a parent to redeem the children from the lot of soldiers, pay their debts, obtain for them a title of honor, or other similar expenses, shall be brought to collation. ART. 1044. Wedding presents, consisting of jewels, clothing, and outfit, shall not be reduced as illegal except in so far as they exceed one-tenth or more of the sum which can be disposed of by will. ART. 1045. The same things bestowed as a gift or given in dowry need not be brought to collation and division, but only the value they had at the time of the gift or dowry, even though they should not have been appraised at the time. Their subsequent increase or impairment and even their total loss, either casually or culpably, shall be for the account and risk or for the benefit of the donee. ART. 1046. A dowry or gift, made by both spouses, shall be brought to collation in equal parts in the inheritance of each one of them. That made by one alone shall be brought to collation in his or her inheritance. ART. 1047. The donee shall receive from the funds of the inheritance an amount so much less than the sum he may already have received, the coheirs receiving the equivalent in property of the same nature, class, and quality, in so far as possible. ART. 1048. If the provisions of the preceding article can not be executed, if the property bestowed as a gift consisted of real estate, the coheirs shall have a right to be equalized in cash, or in securities, at the rate at; which they are quoted; and should there be in the inheritance neither cash nor securities which can be quoted, other property shall be sold at public auction in so far as necessary. If the property bestowed as a gift is personal property, the coheirs shall have only a right to be equalized in other personal property of the inheritance at its just value at their option. ART. 1049. The fruits of and interest on. the property, subject to collation, are not due the funds of the inheritance, except from the day on which the succession is opened. In order to regulate the same, the rents of and interest on the hereditary property of the same kind as that brought to collation shall be taken into consideration. ART. 1050. If a question should arise among the coheirs as to the obligation to bring or with regard to the objects which are to be brought to collation, the division shall not be stopped for such reason when the proper security is given. 141 SECTION SECOND.-Division. ART. 1051. No coheir can be obliged to continue in an undivided inheritance unless the testator should expressly forbid the division. But even though forbidden, the division shall always be made for any of the causes by reason of which partnerships are dissolved. ART. 1052. Every coheir having the free administration and disposal of his property may at any time request the division of the estate. The legal representatives of incapacitated persons and absentees must request the division in their name. ART. 1053. The wife can not ask for the division of property without the authority of the husband, or, in a proper case, of the judge. Should the husband request it in the name of his wife, he shall do so with her consent. The coheirs of the wife can not request the division without the institution of a joint suit against her and her husband. ART. 1054. The conditional heirs can not request the division until the condition is complied with. But the other coheirs may request it by properly securing the right of the former in case the condition is fulfilled; and until it is known that it has not been or can no longer be complied with, the division shall be considered as provisional. ART. 1055. if, before making the division, one of the coheirs should die, leaving two or more heirs, it shall be sufficient for one of them to request it, but all those who intervene in such capacity shall appear under a single representation. ART. 1056. If the testator should make a division of his property by an act inter vivos or by a last will, it shall be accepted in so far as it does not prejudice the legal portion of the heirs by force of law. A father who, in the interest of his family, desires to keep an agricultural, industrial, or manufacturing enterprise undivided may make use of the privilege granted him by this article by providing that the legal portions of the other children be paid in cash. ART. 1057. The testator may, by an act inter viros or causa mortis, intrust the mere power of making the division after his death to any person who is not one of the coheirs. The provisions of this and the foregoing articles shall be observed, even should there be a minor or a person subject to guardianship among the coheirs; but the trustee must in such case make an inventory of the property of the inheritance, citing the coheirs, the creditors, and the legatees. ART. 1058. Should the testator not have made any division, nor entrusted this power to another, if the heirs should be of age and should have the free administration of their property, they may distribute the estate in the manner they may see fit. ART. 1059. If the heirs of age should not agree as to the manner of making the division, they shall be free to enforce their rights in the Ilanner prescribed in the law of civil procedure. 142 ART. 1060. If the minors should be subject to the parental authority, and are represented in the division by the father or by the mother, in a proper case, neither judicial intervention nor approval shall be required. ART. 1061. In the division of the estate all possible fairness shall be observed by drawing lots or awarding to each one of the coheirs things of the same nature, quality, or kind. ART. 1062. If a thing should be individable or should become considerably impaired by being divided, it may be awarded to one of the heirs under condition of paying to the others the difference in cash. But it shall be sufficient if a single one of the heirs requests its sale at public auction, outside bidders being admitted in order that it may take place. ART. 1063. On making the division, the coheirs shall reciprocally compensate each other for the income and fruits each of them may have received from the hereditary property for the useful and necessary expenses made on said property or for the damage caused thereto by malice or negligence. ART. 1064. The costs of the division, made for the common interests of all the coheirs, shall be deducted from the estate; those made for the particular interest of one of them shall be defrayed by the same. ART. 1065. The titles of acquisition or of ownership shall be delivered to the coheir to whom the estate or estates to which they refer may have been awarded. ART. 1066. When the same title includes several estates awarded to several coheirs, or one only which may have been divided among two or more, the title shall remain in the possession of the person having the largest interest in the estate or estates, and true copies thereof shall be furnished the others at the expense of the estate. Should the interests be equal, the title shall be delivered to the male heir, and should there be more than one, to the eldest. Should the title be an original one, the person in whose possession it remains shall furthermore be obliged to exhibit it to the other persons interested, when they request it. ART. 1067. If any of the heirs should sell his hereditary rights to a stranger before the division, all or any of the coheirs may subrogate himself in the place of the purchaser, reimbursing him for the value of the purchase, provided they do so within the period of a month, to be counted from the time they were informed thereof. SECTION THIRD.-Effects of division. ART. 1068. A division legally made confers upon each heir the exclusive ownership of the property which may have been awarded to him. ART. 1069. After the division has been made, the coheirs shall be mutually bound to the surrender, and shall guarantee the property awarded. 143 ART. 1070. The obligation referred to in the foregoing article shall cease in the following cases only: 1. Should the testator himself have made the division, unless it appears or may be reasonably presumed that he desired the contrary, and always reserving the legal portion. 2. Should it have been expressly stipulated on making the division. 3. Should the surrender arise from a cause subsequent to the division, or should it have been caused by the fault of the person to whom it was awarded. ART. 1071. The mutual obligation of the coheirs to surrender is in proportion to their respective hereditary shares; but if any of them should be insolvent the other coheirs shall be liable for his part, in the same proportion, deducting the part pertaining to the one to be indemnified. Those paying for the insolvent shall preserve their action against him until the time when his fortune may improve. ART. 1072. If a credit should be awarded as recoverable, the coheirs shall not be liable for the subsequent insolvency of the debtor to the estate, and shall be liable only for his insolvency at the time the division is made. No one shall be liable for the credits qualified as unrecoverable; but should they be collected, in whole or in part, the amount collected shall be distributed in the proper proportion among the heirs. SECTION FOURTH —Rescission of the division. ART. 1073. Divisions may be rescinded for the same causes as obligations. ART. 1074. They may also be rescinded by reason of lesion exceeding the fourth part, taking into consideration the value of the things at the time they were awarded. ART. 1075. The division made by the testator can not be impugned by reason of lesion excepting in the cases in which it may injure the legal portion of the heirs by force of law, or when it may appear, or it may be reasonably presumed, that the will of the testator was otherwise. ART. 1076. A rescissory action by reason of lesion shall prescribe after four years, counting from the time the division was made. ART. 1077. A defendant heir may choose between indemnifying for the damage or consent to a new division. The indemnity may be paid in cash or in the same thing which suffered the damage. If a new division is made it shall not include those who may not have been prejudiced, nor those who did not receive more than was proper. ART. 1078. An heir who may have alienated the whole or a consid erable part of the real property awarded to him can not institute the rescissory action by reason of lesion. ART. 1079. The omission of one or more objects or securities of the ilheritance does not give rise to the rescission of the division by rea 144 son of lesion, but only to complete or increase the estate with the objects or securities omitted. ART. 1080. A division, made with preterition of any of the heirs, shall not be rescinded unless it be proven that there was bad faith or deceit on the part of the other persons interested; but the latter shall be obliged to pay to the omitted person the proportionate share belonging to him. ART. 1081. A division made with a person who was believed to be an heir without being so shall be void. SECTION FIFTI.-Payment of hereditary debts. ART. 1082. Creditors, recognized as such, may oppose the division of the inheritance until they are paid or the amount of their credits is secured. ART. 1083. Creditors of one or more of the coheirs may take part, at their own expense, in the division in order to prevent it being made in fraud or to the prejudice of their rights. ART. 1084. After the division has been made the creditors may demand the payment of their debts in full of any of the heirs who may not have accepted the inheritance under the benefit of inventory, or up to the amount of their hereditary share in case they have accepted it under such benefit. In either case the defendant shall have a right to notify and summon his coheirs, unless, by disposition of the testator or by reason of the division, he alone should be bound to p;ay the debt. ART. 1085. The coheir who shall have paid more than pertains to his share in the inheritance may demand his proportionate part of the others. The same course shall be pursued if, by reason of the debt being secured by mortgage or consisting in a specified object, he should have paid it in full. The person to whom it has been awarded may, in such case, demand of his coheirs the proportional part only, even though the creditor should have transferred to him his actions and subrogated him in his place. ART. 1086. Should any of the estates of the inheritance be charged with a )erpetual incomle or real-property charge it shall not be extinguished, even when redeemable, unless a majority of the coheirs agree thereto. Should this not be agreed to or should the charge not be redeemable, its value or principal shall be deducted from that of the estate, and tlhe latter shall pass with the charge to the person to whom it may be allotted or awarded. ART. 1087. The coheir, who at the same time should be a creditor of the deceased, may demand of the others the payment of his credit, deducting his proportional part as such heir, and without prejudice to the provisions of section fifth, chapter fifth, of this title, BOOK FOUITII. OBLIGATIONS AND CONTRACTS. TITLE I. Obligations. CHAPTER FIRST. General provisions. ART. 1088. Every obligation consists in giving, doing, or not doing something. ART. 1089. Obligations are created by law, by contracts, by quasicontracts, and by illicit acts and omissions or by those in which any kind of fault or negligence occurs. ART. 1090. Obligations arising from law are not presumed. Those expressly determined in this code or in special laws are the only demandable ones, and they shall be governed by the provisions of the laws which may have established them and by those of this book in regard to what has not been prescribed by said laws. ART. 1091. Obligations arising from contracts have legal force between the contracting parties, and must be fulfilled in accordance with their stipulations. ART. 1092. Civil obligations, arising from crimes or misdemeanors, shall be governed by the provisions of the penal code. ART. 1093. Those arising from acts or omissions, in which faults or negligence, not punished by law, occur, shall be subject to the provisions of chapter second of title sixteen of this book. CIAPTER SECOND. Nature and effects of obligations. ART. 1094. A person obliged to give something is also bound to preserve it with the diligence pertaining to a good father of a family. ART. 1095. A creditor has a right to the fruits of a thing from the time the obligation to deliver it arises. However, he shall not acquire a property right thereto until it has been delivered to him. ART. 1096. Should the thing to be delivered be a specified one the creditor, independently of the right granted him by article 1001, may compel the debtor to make the delivery. Should the thing be undetermined or generic he may ask that the obligation be fulfilled at the expense of the debtor. Should the person obligated be in default, or be bound to deliver the same thing to two or more different persons, he shall be liable therefor with regard to unforeseen events until the delivery is made. 145 6433 10 146 ART. 1097. The obligation to give a specified thing includes that of delivering all of its accessories, even though they may not have been mentioned. ART. 1098. If the person obliged to do something should not do it, it shall be ordered to be done at his expense. This shall also be done should he act in contravention of the tenor of the obligation. Whatever has been badly done may also be ordered to be undone. ART. 1099. The provisions of the second paragraph of the preceding article shall also be observed when the obligation consists in not doing and the debtor should do what he has been forbidden. ART. 1100. Persons obliged to deliver or to do something are in default from the moment when the creditor demands the fulfillment of their obligation, judicially or extrajudicially. However, the demand of the creditor, in order that default may exist, shall not be necessary1. If the obligation or law declares it expressly. 2. If by reason of its nature and circumstances it may appear that the fixing of the period within which the thing was to be delivered or the service rendered was adeterminate cause to constitute the obligation. In mutual obligations none of the persons bound shall incur default if the other does not fulfill or does not submit to properly fulfill what is incumbent upon him. From the time one of the persons obligated fulfills his obligation the default begins for the other party. ART. 1101. Those who in fulfilling their obligations are guilty ot fraud, negligence, or delay, and those who in any manner whatsoever act in contravention of the stipulations of the same, shall be subject to indemnify for the losses and damages caused thereby. ART. 1102. Liability arising from fraud is demandable in all obligations. The renunciation of the action to enforce it is void. ART. 1103. Liability arising from negligence is also demandable in the fulfillment of all kinds of obligations; but it may be mitigated by the court, according to the case. ART. 1104. The fault or negligence of the debtor consists of the omission of the steps which may be required by the character of the obligation, and which may pertain to the circumstances of the persons, time, and place. Should the obligation not state what conduct is to be observed in its fulfillment, that observed by a good father of a family shall be required. ART. 1105. No one shall be liable for events which could not be -foreseen, or which having been foreseen were inevitable, with the exception of the cases expressly mentioned in the law or those in which the obligation so declares. ART. 1106. Indemnity for losses and damages includes not only the amount of the loss which may have been suffered, but also that of 147 the profit which the creditor may have failed to realize, reserving the provisions contained in the following articles. ART. 1107. The losses and damages for which a debtor in good faith is liable, are those foreseen or which may have been foreseen, at the time of constituting the obligation, and which may be a necessary consequence of its nonfulfillment. In case of fraud, the debtor shall be liable for all those which clearly may originate from the nonfulfillment of the obligation. ART. 1108. Should the obligation consist in the payment of a sum of money, and the debtor should be in default, the indemnity for losses and damages, should there not be a stipulation to the contrary, shall consist in the payment of the interest agreed upon, and should there be no agreement, in that of the legal interest. Until another rate is fixed by the Government, interest at the rate of 6 per cent per annum shall be considered as legal. ART. 1109. Interest due shall earn legal interest from the time it is judicially demanded, even if the obligation should have been silent on this point. In commercial transactions the provisions of the code of commerce shall be observed. Pawn shops and savings banks shall be governed by their special regulations. ART. 1110. A receipt from the creditor for the principal, without any stipulation regarding interest, extinguishes the obligation of the debtor with regard thereto. The receipt for the last installment of a debt, when the creditor has made no reservation, shall also extinguish the obligation with regard to the previous installments. ART. 1111. Creditors, after having attached the property of which the debtor may be in possession, in order to collect all that is due them, may exercise all the rights and actions of the latter for the same purpose, excepting those inherent in his person; they may also impugn the acts which the debtor may have performed in fraud of their right. ART. 1112. All the rights acquired by virtue of an obligation are transmissible, subject to law, should there be no stipulation to the contrary. CHAPTER THIRD. Different kinds of obligations. SECTION FIRST.-Pure and conditional obligations. ART. 1113. Every obligation, the fulfillment of which should not depend upon a future or uncertain event or upon a past event, unknown to the parties in interest, shall be immediately demandable. lvery obligation, containing a condition subsequent, shall also be demandable without prejudice to the effect of the performance. 148 ART. 1114. In conditional obligations, the acquisition of rights, as well as the extinction or loss of those already acquired, shall depend upon the event constituting the condition. ART. 1115. If the fulfillment of the condition should depend upon the exclusive will of the debtor, the conditional obligation shall be void. If it should depend upon chance or upon the will of a third person, the obligation shall produce all its effects in accordance with the provisions of this code. ART. 1116. Impossible conditions, those contrary to morality, and those forbidden by law, shall annul the obligation depending upon them. The condition of not doing a thing which is impossible is considered as not imposed. ART. 1117. The condition that a certain event shall happen within a fixed period, shall extinguish the obligation from the time the period lapses or when there is no doubt that the event will not take place. ART. 1118. The condition that a certain event shall not occur within a fixed period shall render the obligation binding from the time the period fixed elapses, or when it becomes evident that such event can not occur. Should there not be a fixed period, the condition shall be considered as fulfilled within tlhe time which would probably have been fixed, in view of the nature of the obligation. ART. 1119. The condition shall be considered as fulfilled when the obligated party should voluntarily prevent its fulfillment. ART. 1120. The effects of a conditional obligation to give after the condition has been fulfilled shall retroact to the day on which it was constituted. Nevertheless, if the obligation should impose mutual prestations on tlhe parties concerned, the fruits and interest for the time during which the condition has been pending shall be understood as compensating each other. Should the obligation be unilateral, the debtor shall become the owner of the fruits and interest collected, unless by reason of the nature and circumstances of the obligation it must be inferred that the will of the person constituting it was otherwise. In the obligations of doing or of not doing, the courts shall determine in each case the retroactive effect of the condition fulfilled. ART. 1121. The creditor may, before fulfilling the conditions, enforce the actions which may be proper for the preservation of his right. The debtor may recover what he may have paid during the same period. ART. 1122. Should the conditions be established for the purpose of suspending the efficiency of the obligation to give, the following rules shall be observed in case the thing should improve, or be lost or impaired while the condition is pending: 1. If the thing was lost without fault of the debtor, the obligation shall be extinguished. 149 2. If the thing was lost by the fault of the debtor, he is obliged to make good the losses and damages. It is understood the thing is lost when it perishes, becomes unsaleable, or disappears in such a manner that its existence is unknown, or it is not possible to recover it. 3. If the thing deteriorates without fault of the debtor, the deterioration shall be borne by the creditor. 4. If the thing should deteriorate by the fault of the debtor, the creditor may choose between the rescission of the obligation and its fulfillment, with indemnity for damages in both cases. 5. If the thing should improve by its nature or by time, the improvements accrue to the benefit of the creditor. 6. If it should improve at the expense of the debtor, the latter shall have no more rights than those granted a usufructuary. ART. 1123. If the object of the conditions should be to rescind the obligation to give, after they are performed, the parties in interest shall mutually return all they may have received. In cases of loss, deterioration or improvement of the thing, the provisions relating to debtors, contained in the preceding article, shall be applied to the person obliged to make restitution. With regard to the obligations of doing or not doing, the provisions of the second paragraph of article 1120 shall be observed in so far as the effects of the rescission are concerned. ART. 1124. The right to rescind the obligations is considered as implied in mutual ones, in case one of the obligated persons does not comply with what is incumbent upon him. The person prejudiced may choose between exacting the fulfillment of the obligation or its rescission, with indemnity for damages and payment of interest in either case. He may also demand the rescission, even after having requested its fulfillment, should the latter appear impossible. The court shall order the rescission demanded, unless there are sufficient causes authorizing it to fix a period. This is understood without prejudice to the rights of third acquirers, in accordance with articles 1295 and 1298, and with the provisions of the mortgage law. SECTION SECOND.-Obligations with definite periods. ART. 1125. Obligations, the fulfillment of which has been fixed for a day certain, shall only be demandable when the proper day arrives. A day certain is understood to be one which must necessarily arrive, even though its date be unknown. If the uncertainty should consist in the arrival or nonarrival of the day, the obligation is conditional and shall be governed by the rules of the preceding section. ART. 1126. In obligations with definite periods, what has been paid in advance can not be recovered. 150 If the person who paid was not aware when he did so of the existence of the period, he shall have a right to claim from the creditor the interest or fruits which the latter may have received from the thing. ART. 1127. Whenever a period should be fixed in obligations, it is presumed as established for the benefit of the creditor as well as of the debtor, unless from their tenor or from other circumstances it should appear that it was established for the benefit of one or the other. ART. 1128. Should the obligation not fix a period, but it can be inferred from its nature and circumstances that there was an intention to grant it to the debtor, the courts shall fix the duration of the same. The courts shall also fix the duration of the period when it may have been left to the will of the debtor. ART. 1129. The debtor shall lose all right to profit by the period1. If, after contracting the obligation, it should appear that he is insolvent, unless he gives security for the debt. 2. If he does not give to the creditor the guaranties stipulated. 3. If by his own acts he should have reduced said guaranties after giving them, and if they disappear through an fortuitous event, unless they are immediately substituted by new ones equally safe. ART. 1130. If the period of the obligation be fixed by days, to be counted from a specified one, such day shall be excluded from the computation, which must begin on the following one. SECTION THIRD.-A lternative obligations. ART. 1131. A person who is alternatively obliged to make different prestations lmust fully comply with one of them. A creditor can not be compelled to receive a part of one and a part of another. ART. 1132. The option pertains to the debtor unless it has been expressly granted the creditor. A debtor shall not have the right to choose prestations which are impossible, illicit, or which could not have been the object of the obligation. ART. 1133. The election shall be effective only from the time it was made known. ART. 1134. A debtor shall lose the right of option when, of the prestations which he is alternatively obliged to make, only one is feasible. ART. 1135. A creditor shall have the right to indemnity for losses and damages when, by the fault of the debtor, all the things whicl were alternatively the objects of the obligation should have disappeared, or it should hlave become impossible to fulfill the latter. The indemnity slall be fixed, taking as a basis the value of the last thling which may have disappeared or of the last service which has become impossible. ART. 1136. Wlhen an option has been expressly granted the creditor the obligation shall cease to be alternative from the day on which notice of said option may have been given to the debtor. 151 Until their the liability of the debtor shall be governed by the following rules: 1. If any of the things should have been lost by a fortuitous event, he shall perform by delivering the one which the creditor may select from among those remaining, or the one remaining if only one should exist. 2. If the loss of any of the things should have been caused by the fault of the debtor the creditor may claim any of those remaining or the value of the one which has disappeared by the fault of the debtor. 3. If all the things should have been lost by the fault of the debtor the creditor shall have a right to select the value of any one of them. The same rules shall be applied to the obligations of doing or not doing, in case that any or all of the prestations should be impossible. SECTION FOURTH.-Several and joint obligations. ART. 1137. The concurrence of two or more creditors, or of two or more debtors in a single obligation, does not imply that each one of the former has a right to ask, nor that each one of the latter is bound to comply in full with the things which are the object of the same. This shall only take place when the obligation determines it expressly, being constituted as a joint obligation. ART. 1138. If from the context of the obligations referred to in the preceding article any other thing does not appear the credit or the debt shall be presumed as divided in as many equal parts as there are creditors or debtors, being considered as credits or debts, each one different from the other. ART. 1139. If the division should be impossible, the right of the creditors shall only be prejudiced by the collective acts of the same, and the debt shall only be recoverable by proceedings against all of the debtors. If any of the latter should be insolvent, the rest shall not be obliged to pay his share. ART. 1140. Solidarity may exist, even though the creditors and debtors are not bound in the same manner, and for the same periods and under the same conditions. ART. 1141. Each of the joint creditors may do whatever may be I)rofitable to the others, but not what may be prejudicial. The actions instituted against any one of the joint debtors shall prejudice all of them. ART. 1142. A debtor may pay the debt to any one of the joint creditors; but should it have been sued by any one of them, he must make the payment to the latter. ART. 1143. Novation, compensation, confusion, or remission of the debt, made by any of the joint creditors, or with any of the debtors of the same class, extinguishes the obligation without prejudice to the provisions of article 1146. 152 A creditor who may have executed any of these acts, as well as the lerson who collects the debt, shall be liable to the others for the part pertaining to them inl the obligation. ART. 1144. A creditor may sue any of the joint debtors or all of them simultaneously. The actions instituted against one shall not be an obstacle for those that may be brought subsequently against the others, as long as it does not appear that the debt has been collected in full. ART. 1145. The payment made by one of the joint debtors extinguislles the obligation. The person who made the payment can onlly claim from his codebtors the shares pertaining to each one withl interest on the amounts advanced. The nonfulfillment of the obligation by reason of the insolvency of a joint debtor shall be made good by his codebtors in proportion to the debt of each of them. ART. 1146. The waiver or remission made by tlhe creditor of the part affecting one of the joint debtors does not release the latter from his liability with regard to tlhe codebtors in case the debt should have been paid in full by any of them. AnT. 1147. If the thing sliould have perished, or the prestation should have become impossible, without any fault of the joint debtors, the obligation shall be extinguished. If there should have beein any fault on the part of any of them, all shall be liable with regard to the creditor for the value and the indemnity for damages and payment of interest, without prejudice to llis action against the culpable or negligent person. ART. 1148. A joint debtor may utilize, against the claims of the creditor, all the exceptions arising from the nature of the obligation and those which are personal to him. Those personally pertaining to the others may be employed by him only with regard to the share of the debt for which the latter may be liable. SECTION FIFTH.-Divisible and indivisible obligations. ART. 1149. The divisibility or indivisibility of things, the object of obligations, in which there is one debtor and one creditor, does not change nor modify the provisions of chapter second of this title. ART. 1150. An indivisible several obligation is determined by indemniftying for losses and damages from the time any of the debtors fails to comply therewith. The debtors who may have been disposed to perform their obligations shall only contribute to the indemnity a sunl equivalent to the corresponding portion of the value of the thing or of the service of which the obligation may consist. ART. 1151. For the purposes of the preceding articles the obligations to give specified things and all those which are not capable of partial fulfillment shall be considered as indivisible. 153 The obligations of doing shall be divisible when their purpose is the prestation of a number of (lays of work, the execution of works by units of measurement, or other similar things which by reason of their nature are capable of partial fulfillment. In obligations of not doing the divisibility or indivisibility shall be decided by the character of the prestation in each particular case. SECTION SIXTH.I-Obligatiows with a penal clause. ART. 1152. In obligations with a penal clause the penalty shall substitute indemnity for damages and the payment of interest in case of nonfulfillment, should there be no agreement to the contrary. This penalty can only be enforced when it is demandable in accordance with the provisions of this code. ART. 1153. The debtor can not exempt himself from the fulfillment of the obligation by paying the penalty, unless such right has been expressly reserved to him. Neither may the creditor exact the fulfillment of the obligation and also the payment of the penalty, unless such right has been clearly granted him. ART. 1154. The judge shall equitably mitigate the penalty if the principal obligation should have been partly or irregularly fulfilled by the debtor. ART. 1155. The nullity of the penal clause does not carry with it that of the principal obligation. The nullity of the principal obligation carries with it that of the penal clause. CHAPTER FOURTH. -Extinction of obligations. GENERAL PROVISIONS. ART. 1156. Obligations are extinguishedBy their payment or fulfillment. By the loss of the thing due. By the remission of the debt. By the merging of the rights of the creditor and debtor. By compensation. By novation. SECTION FIRST.-Payment. ART. 1157. A debt shall not be considered as paid until the full amount of the thing has been delivered, or the prestation of which the obligation consisted has been made. ART. 1158. Any person, whether lIe has an interest or not in the fulfillment of the obligation, and whether the debtor knows and approves it or is not aware thereof, can make the payment. The person paying for the account of another may recover from the debtor what he may have paid, unless he has done it against his exlpress will. 154 In such case he can only recover from the debtor in so far as the payment has been useful to him. ART. 1159. A person paying in the:namne of the debtor, without the knowledge of the latter, can not compel the creditor to subrogate him in his rights. ART. 1160. In obligations to give, the payment made by a person not having the free disposal of the thing due, and capacity to convey it, shall not be valid. However, if the payment should have consisted in a sum of money or in a thing perishable, no action can be brought against the creditor who may have spent or consumed it in good faith. ART. 1161. In obligations of doing, the creditor can not be compelled to receive the prestation or the services from a third party, when the quality and circumstances of the person of the debtor should have been taken into account in establishing the obligation. ART. 1162. Payment must be made to the person in whose favor the obligation is constituted, or to another authorized to receive it in his name. ART. 1163. The payment made to a person who is incapacitated from managing his property shall be valid in so far as it may have been employed for his benefit. A payment made to a third person shall also be valid in so far as it may have been beneficial to the creditor. ART. 1164. A payment made in good faith to the person who is in possession of the credit shall release the debtor. ART. 1165. A payment made by the debtor to the creditor after he has been judicially ordered to retain the debt shall not be valid. ART. 1166. The debtor of a thing can not oblige his creditor to receive a different one, even though it should be of equal or greater value to that due. Neither in obligations of doing can a prestation be substituted by another against the will of the creditor. ART. 1167. If the obligation should consist in the delivery of a thing, not specified or generic, the quality and circumstances of which should not have been expressed, the creditor can not exact one of a superior quality nor can the debtor deliver one of an inferior quality. ART. 1168. Extrajudicial expenses arising from the payment shall be charged to the debtor. With regard to judicial expenses the court shall decide in accordance with the law of civil procedure. ART. 1169. Unless the contract expressly authorizes it the creditor can not be compelled to partially receive the prestations of which the obligation consists. However, should the debt be in part determined and in part unldetermined, the creditor may exact and the debtor may make payment of the former without awaiting for the liquidation of the latter. 155 ART. 1170. Payments of debts of money shall be made ill the specie stipulated and, should it not be possible to deliver the specie, in legal silver or gold coin current in Spain. The delivery of promissory notes to order or drafts or other commercial paper shall only produce the effects of payment when collected or when, by the fault of the creditor, their value has been affected. In the meantime the action arising from the original obligation shall be suspended. ART. 1171. Payments shall be made at the place designated in the obligation. Should it not have been designated, and when a determined thing is to be delivered, the payment shall be made at the place where the thing existed at the time of constituting the obligation. In any other case the place of payment shall be that of the domicile of the debtor. Application of payments. ART. 1172. A person having several debts of the same kind in favor of a single creditor may declare, at the time of making a payment, to which of them it is to be applied. If the debtor should accept a receipt from the creditor, setting forth the application of the payment, lie can not make a claim against it, unless there should be some cause which may invalidate the contract. ART. 1173. If the debt bears interest the payment can not be considered as made on account of the principal until the interest is covered. ART. 1174. When the payment can not be applied according to the preceding rules the debt which is most onerous for the debtor among those which may be due shall be considered as the one paid. If the latter should have the same nature and charges the payment shall be applied to all pro rata. Payment by assignment of property. ART. 1175. The debtor may assign his property to creditors in pa,yment of his debts. This assignment releases the former from liability only to the net amount of the property assigned, unless there is an agreement to the contrary. Agreements entered into between the debtor and his creditors with regard to the effect of an assignment shall be made in accordance with the provisions of title seventeen of this book and with those of the Law of Civil Procedure. Tender of payment and consignation. ART. 1176. If the creditor to whom the tender of payment has been made should refuse to accept it, without reason, the debtor shall remain released from all liability by the consignation of the thing due. The same effect shall be produced by the consignation alone when nlade in the absence of the creditor, or when the latter should be incapacitated to accept the payment when it is due, and when several persons claim to have a right to collect it, or when the instrument mentioning the obligation has been mislaid. 156 ART. 1177. In order that the consignation ofthe thing due may release the obligee, notice thereof must previously be given to the persons interested in the fulfillment of the obligation. Consignation shall have no effect when not strictly in accordance with the provisions governing payment. ART. 1178. Consignation shall be made by depositing the things due at the disposal of the judicial authority before whom the tender shall be proven in a proper case and the notice of the consignation in other cases. After the consignation has been made the persons interested shall also be notified thereof. ART. 1179. The expenses of the consignation, when proper, shall be charged to the creditor. ART. 1180. After the consignation has been duly made the debtor may request thle judge to order the cancellation of the obligation. Until the creditor may accept the consignation or a judicial decision should be rendered that it was properly done, the debtor may withdraw the thing or amount consigned, leaving the obligation in force. ART. 1181. If, after the consignation has been made, the creditor should authorize the debtor to withdraw it, the former shall lose the preference he may have in the thing. The codebtors and sureties shall be released. SECTION SECOND.-Loss of the thing due. ART. 1182. An obligation, consisting in the delivery of a specified thing, shall be extinguished when said thing should be lost or destroyed without fault of the debtor and before he should be in default. ART. 1183. Whenever the thing should be lost, when in the possessioni of the debtor, it shall be presumed that the loss occurred by his fault and not by a fortuitous event, unless there is proof to the contrary and without prejudice to the provisions of article 1096. ART. 1184. In obligations to do, the debtor shall also be released when the prestation appears to be legally or physically impossible. ART. 1185. When the debt for a certain and specified thing arises from a crime or misdemeainor the debtor shall not be exempted from the payment of its value, whatever the cause of the loss may have been, unless, having offered the thing to the person who should have received it, the latter should have refused to accept it without reason. ART. 1186. After the obligation is extinguished by the loss of the thing, all the actions which the debtor may have against third persons, by reason thereof shall pertain to the creditor. SECTION THIRD. —Remission of debts. ART. 1187. A remission may be made either expressly or by implication. Both shall be subject to the provisions governing illegal gifts. An express remnissio1n nlust, furthermore conform, to the forms of a gift. 157 ART. 1188. The surrender, made voluntarily by a creditor to his debtor, of a private instrument proving a credit, implies the renunciation of the action which the former had against the latter. If in order to invalidate this renunciation, it should be claimed that it is illegal, the debtor and his heirs may support it by proving that the delivery of the instrument was made by virtue of the payment of the debt. ART. 1189. Whenever the private instrument from which the debt appears should be in the possession of the debtor, it shall be presumed that the creditor delivered it of his own will, unless the contrary is proven. ART. 1190. The remission of the principal debt shall extinguish the accessory obligations; but the remission of the latter shall leave the former in force. ART. 1191. The accessory obligation of a pledge shall be considered as remitted, when the thing pledged, after having been delivered to the creditor, should be in the possession of the debtor. SECTION FOURTH.-Confusion of rights. ART. 1192. Whenever the characters of creditor and debtor are merged in the same person, the obligation is extinguished. The case in which this confusion takes place by virtue of inheritance is excepted, if said inheritance should have been accepted under benefit of inventory. ART. 1193. The confusion which takes place in the person of the debtor or of the principal creditor is beneficial to the sureties. That taking l)lace in any of the latter does not extinguish the obligation. ART. 1194. Confusion does not extinguish debts in severalty, except with regard to the part pertaining to the creditor or debtor in whom both characters are merged. SECTION FIFTH.- Compensation. ART. 1195. Compensation shall take place wheni two persons, in their own right, are mutually creditors and debtors of each other. ART. 1196. In order that compensation may be proper, it is required: 1. That each of the persons bound should be so principally, and that lie be at the same time the principal creditor of the other. 2. That both debts consist of a sum of nmoney or, wlhen the things due are perishable, that they be of the same kind and also of the same quality, if the latter should have been stipulated. 3. That both debts be due. 4. That they be determined and demandable. 5. That none of them is subject to any retention or suit instituted by a third person, and of which due notice has been given the debtor. ART. 1197. Notwithstanding the provisions of the preceding article, the surety may oppose compensation with regard to what the creditor may owe his principal debtor. 158 ART. 1198. A debtor who may have consented to the assignment of rights made by a creditor in favor ot a third person, can not oppose, against the assignee, the compensation which should pertain to him against the assignor. If the creditor gave him notice of the assignment and the debtor did not consent thereto, he may oppose compensation for prior debts, but not for subsequent ones. If the assignment is made without knowledge of the debtor, he may oppose compensation for prior credits, and for subsequent ones, until he should have been informed of the assignment. ART. 1199. Debts payable in different places may be compensated by an indemnity for the expenses of transportation or for the exchange at the place of payment. ART. 1200. Compensation shall not be proper when any of the debts arise from a deposit, or from the obligations of the depositary or borrower. Neither can it be set off to the creditor for support due by reason of a good consideration. ART. 1201. When a person should have different debts, which maybe compensated, the provisions relating to the imputation of payments shall be observed in the order of compensation. ART. 1202. The effect of compensation is to extinguish both debts to the concurrent amount, even when the creditors and debtors have no knowledge thereof. SECTION SIXTH.-Novation. ART. 1203. Obligations may be modified1. By the change of their object or principal conditions. 2. By substituting the person of the debtor. 3. By subrogating a third person in the rights of the creditor. ART. 1204. In order that an obligation may be extinguished by another which substitutes it, it is necessary that it should be so expressly declared, or that the old and new be incompatible in all points. ART. 1205. Novation, consisting in the substitution of a debtor in the place of the original one, may be made without the knowledge of the latter, but not without the consent of the creditor. ART. 1206. The insolvency of the new debtor, who may have been accepted by the creditor, shall not revive the action of the latter against the original debtor, unless said insolvency may have been prior, public, and known to the debtor when he transferred his debt. ART. 1207. When the principal obligation is extinguished by reason of the novation, the accessory obligations shall only remain in force in so far as they benefit third persons who have not given their consent thereto. 159 ART. 1208. Novation is void if the original obligation is also so, unless the cause of nullity can be claimed by the debtor only, or the ratification gives validity to acts which were void in their origin. ART. 1209. The subrogation of a third person in the rights of a creditor can not be presumed, except in the cases expressly mentioned in this code. In other cases it shall be necessary to prove it clearly in order that it may be effective. ART. 1210. Subrogation shall be presumed1. When a creditor pays another preferred creditor. 2. When a third person, who is not interested in the obligation, pays with the express or implied approval of the debtor. 3. When the person who is interested in the fulfillment of the obligation pays, without prejudice to the effects of the confusion with regard to the share pertaining to him. ART. 1211. A debtor may make the subrogation without the consent of the creditor when, in order to pay the debt, he may have borrowed money in a public instrument, stating his purpose and setting forth in the receipt the origin of the sum paid. ART. 1212. Subrogation transfers to the subrogated the credit, with the corresponding rights, either against the debtor or against third persons, be they sureties or holders of mortgages. ART. 1213. A creditor to whom a partial payment has been made may exercise his right with regard to the balance, with preference to tlhe person subrogated in his place by virtue of the partial payment of the said credit. CIHAPTER FIFTH. Proof of obligations. ( ENERAL PROVISIONS. ART. 1214. Proof of obligations devolves upon the persons claiming their fulfillment, and that of their extinction upon those opposing it. ART. 1215. Proofs may be given by instruments, by confession, by tlhe personal inspection of a judge, by experts, by witnesses, and by lpresumptions. SECTION FIRST.-Public instruments. ART. 1216. Public instruments are those authenticated by a notary 01 ) by a competent public official, with the formalities required by law. ART. 1217. Instruments in which a notary public takes part shall be governed by the notarial law. ART. 1218. Public instruments are evidence, even against a third person, of the fact which gave rise to their execution and of the date of tte latter. They shall also be evidence against the contracting parties and their le'al representatives with regard to the declarations the former may h1,:ve mnde therein. 160 ART. 1219. Public instruments, made for tlhe purpose of impairing a former instrument, between the same parties, shall be effective against third parties only when the contents of the former should have been entered in the proper public registry or in the margin of the original instrument, and in that of the transcript or copy, by virtue of which the third person may have acted. AIRT. 1220. Copies of public instruments of which there is an original or protocol, contested by those they prejudice, shall have force of proof only when they have been duly collated. Should there be any difference between the original and the copy the contents of the former shall govern. ART. 1221. Should the original instrument, the protocol, and the original record have disappeared, the following shall constitute evidence: 1. First copies made by the public official who authenticated thenm. 2. Subsequent copies issued by virtue of a judicial mandate, after citing the persons interested. 3. Those which, without a judicial mandate, may have been taken in the presence of the persons interested and with their consent. In the absence of the said copies, any other copies, thirty or more years old, shall be evidence, provided they have been taken from the original by tlhe official who authenticated them or by any other in charge of their custody. Copies less than thirty years old, or which may be authenticated by a public official, in which the circumstances mentioned in the preceding paragraph do not concur, shall serve only as a basis of written evidence. The force of proof of copies of a, copy shall be weighed by the courts according to the circumstances. ART. 1222. The entry in any public registry of an instrument which may have disappeared shall be weighed according. to the rules established in the last two paraglra)phs of the preceding article. ART. 1223. An instrument which is defective by reason of the incompetency of the notary or by reason of any other fault in its form shall be considered as a private instrument when signed by the parties who executed the same. ART. 1224. An instrument acknowledgi}ng an agreement or contract proves nothing against tlhe instrument containing the same if by excess or omission they disagree therewith, unless the novation of the former is expressly proven. P'rivate instrulments. ART. 1225. A private instrument legally acknowledged shall have, with regard to those who signed it:and their legal representatives, the same force as a public instrument. ART. 1226. A lersoll against whomn a written obligation, which tappears signed by hiln, is set up in court is obliged to declare whether the signature is his or not. 161 The heirs or the legal representatives of the person obligated may limit themselves to state if they know whether the signature to the obligation is or is not that of their principal. A refusal, without sufficient cause, to make the statement mentioned in the preceding paragraphs may be construed by the courts as an admission of the authenticity of the instrument. ART. 1227. The date of a private instrument shall be considered, with regard to third persons, only from the date on which it may have been filed or entered in a public registry, from the death of any of those who signed it, or from the date on which it may have been delivered to a public official by virtue of his office. ART. 1228. Entries, registries, and private papers shall be evidence against the person who has written them only in all that may appear clearly stated; but a person who wishes to make use thereof is bound to accept them also in the part prejudicial to him. ART. 1229. A note written or signed by a creditor at the end, in the margin, or on the back of an instrument held by him constitutes evidence in all that may be favorable to the debtor. The same shall be understood of a note written or signed by the creditor, on the back, in the margin, or at the foot of the duplicate of an instrument or receipt which the debtor may hold. In either case the debtor who wishes to avail himself of what may be favorable to him shall have to abide by what is prejudicial. ART. 1230. Private instruments executed for the purpose of changilig the agreements made in a public instrument shall produce no effect against a third person. SECTION SECOND.-Confession. ART. 1231. Confession may be madeeither judicially or extrajudicially. In either case it shall be ani indispensable condition for the validity of the confession that it should relate to personal acts of the confessor and that he should have legal capacity to make it. ART. 1232. Confession is evidence against the author. Exception is made of the case in which compliance with the laws may be evaded by the same. ART. 1233. The confession can not be partially used against him who makes it unless it should refer to different facts, or when a part of the confession is proven by other means, or when, in any particular, it slhould be contrary to nature or law. ART. 1234. Confession loses its effectiveness only when it is proven that on making it an error of fact was committed. ART. 1235. A judicial confession must be made under oath before a Judge of competent jurisdiction, and when he who may be benefited by it las actual representation in the proceedings. ART. 1236. When a judicial confession under decisory oath is e'quested, the party fromn whom it is demanded may ask that the oath 6433 11 162 be referred to the adverse party, and should the latter refuse to take it, it shall be considered that the person has confessed. ART. 1237. A decisory oath can not be demanded on incriminating facts nor on questions with regard to which the parties can not compromise. ART. 1238. A confession made under decisory oath, whether deferred or referred, constitutes a proof only in favor or against the parties who submitted to it and their heirs or legal representatives. No proof with regard to the falsity of said oath shall be admitted. ART. 1239. Extrajudicial confession is considered as an act subject to the judgment of the courts, according to the rules established on evidence. SECTION THIRD.-Personal inspection by the judge. ART. 1240. Evidence by personal inspection by the judge shall only be effective in so far as it clearly permits the court to judge, by the external appearance of the thing inspected, of the fact which he desires to ascertain. ART. 1241. The inspection made by a judge may be weighed in the sentence rendered by another judge, provided the former has set forth with perfect clearness in the proceedings the details and circumstances of the thing inspected. SECTION FOURTH.- Expert evidence. ART. 1242. This kind of evidence may only be made use of when, ill order to weigh the facts, scientific, artistic, or practical knowledge is necessary or advisable. ART. 1243. The value of this evidence and the form in which it is to be given are the subjects of the provisions of the law of civil procedure. SECTION FIFTH.-Evidence of witnesses. ART. 1244. Evidence of witnesses shall be admissible in all cases in which it should not have been expressly forbidden. ART. 1245. All persons, of either sex, who are not disqualified by natural incapacity or by the provisions of law, may be witnesses. ART. 1246. The following are disqualified by natural incapacity: 1. Lunatics or insane persons. 2. The blind and deaf, in those things a knowledge of which depends upon sight and hearing. 3. Minors under 14 years of age. ART. 1247. The following are disqualified by provision of law: 1. Those directly interested in the suit. 2. The ascendants in the suits of their descendants and the latter in those of the former. 163 3. The father-in-law or mother-in-law in the suits of the son-in-law or daughter-in-law, and vice versa. 4. The husband in the suits of his wife and the wife in those of her husband. 5. Those who, by reason of their rank or profession, are bound to preserve secrecy in the matters relating to their profession or rank. 6. Those specially disqualified to be witnesses to certain instruments. The provisions of Nos. 2,3, and 4 are not applicable in suits in which it is intended to prove the birth or death of children, or any private family matter which it may not be possible to verify by other means. ART. 1248. The force of proof of depositions of witnesses shall be weighed by the courts in accordance with the provisions of the law of civil procedure, taking care to avoid that, by the simple coincidence of some depositions, unless their truthfulness be evident, the affairs may be finally decided in which instruments, private documents, or any basis of written evidence are usually made use of. SECTION SIXTH.-Presumptions. ART. 1249. Presumptions are not admissible, except when the fact from which they are to be deduced is fully proven. ART. 1250. Presumptions established by law exempt those favored tliereby from producing any further proof. ART. 1251. Presumptions established by law may be destroyed by proof to the contrary, except in the cases in which it is expressly prohibited. Only a judglent obtained in a suit for revision shall be effective against the presumption of the truth of the res adjudicata. ART. 1252. In order that the presumption of the res adjudicata may be valid in another suit, it is necessary that, between the case decided by the sentence and that in which the same is invoked, there be the most perfect identity between the things, causes, and persons of the litigants, and their capacity as such. In questions relating to the civil status of persons, and in those regardilig the validity or nullity of testamentary provisions, the presumption of the res adjudicata shall be valid against third persons, even if they should not have litigated. It is understood that there is identity of persons whenever the litigants of the second suit are legal representatives of those who litigated in the preceding suit, or when they are jointly bound with them or by the relations established by the indivisibility of prestations among those having a right to demand them, or the obligation to satisfy the same. ART. 1253. In order that presumptions not established by law may be admitted as means of evidence, it is indispensable that between the fact demonstrated and the one it is desired to deduce there should exist a precise and direct connection according to the rules of human judgment. 164 TITLE II. Contracts. CHAPTER FIRST. General provisions. ART. 1254. A contract exists from the moment one or more persons consent to bind himself or themselves, with regard to another or others, to give something or to render some service. ART. 1255. The contracting parties may make the agreement and establish the clauses and conditions which they may deem advisable, provided they are not in contravention of law, morals, or public order. ART. 1256. The validity and fulfillment of contracts can not be left to the will of one of the contracting parties. ART. 1257. Contracts shall only be valid between the parties who execute them and their heirs, except, with regard to the latter, the case in which the rights and obligations arising from the contract are not transmissible, either by their nature, or by agreement, or by provision of law. Should the contract contain any stipulation in favor of a third person, he may demand its fulfillment, provided he has given notice of his acceptance to the person bound before it may have been revoked. ART. 1258. Contracts are perfected by mere consent, and from that time they are binding, not only with regard to the fulfillment of what has been expressly stipulated, but also with regard to all the consequences which, according to their character, are in accordance with good faith, use, and law. ART. 1259. No one can contract in the name of another without being authorized by him or without having his legal representation according to law. A contract executed in the name of another by one who has neither his authorization nor legal representation shall be void, unless it should be ratified by the person in whose name it was executed before being revoked by the other contracting party. ART. 1260. Oaths shall not be admitted in contracts. If admitted, they shall be considered as not given. CHAPTER SECOND. Essential requisites for the validity of contracts. GENERAL PROVISION. ART. 1261. There is no contract unless the following requisites exist: 1. The consent of the contracting parties. 2. A definite object which may be the subject of the contract. 3. The cause for the obligation which may be established. 165 SECTION FIRST.-Consent. ART. 1262. Consent is shown by the concurrence of the offer and the acceptance of the thing and the cause which are to constitute the contract. An acceptance made by letter does not bind the person making the offer, but from the time it came to his knowledge. The contract in such case is presumed as executed at the place where the offer was made. ART. 1263. The following persons can not give consent: 1. Minors who are not emancipated. 2. Lunatics or the insane, and the deaf and dumb who do not know how to write. 3. Married women, in the cases specified by law. ART. 1264. The incapacity, mentioned in the preceding article, is subject to the modifications which are determined by law and is understood without prejudice to the special disqualifications established by the same. ART. 1265. Consent given by error, under violence, by intimidation, or deceit shall be void. ART. 1266. In order that the error may invalidate the consent, it must refer to the substance of the thing, which may be the object of the contract, or to those conditions of the same, which should have been principally the cause of its execution. An error with regard to the person shall invalidate a contract only when the consideration of the person should have been the principal cause of the same. A mere error of account shall only give rise to its correction. ART. 1267. Violence exists when, in order to exact the consent, irresistible force is used. Intimidation exists when one of the contracting parties is inspired with a reasonable and well-grounded fear of suffering an imminent and serious injury to his person or property, or to the person or property of the spouse, descendants, or ascendants. In order to classify the intimidation, the age, sex, and status of the person must be considered. Fear of displeasing the persons to whom obedience and respect are (due shall not annul the contract. ART. 1268. Violence or intimidation shall annul the obligation, even if it should have been employed by a third person who did not take part in the contract. ART. 1269. There is deceit when by words or insidious machinations ont the part of one of the contracting parties the other is induced to execute a contract which without them he would not have made. ART. 1270. In order that deceit may give rise to the nullity of a contract, it must be serious, and must not have been employed by both of the contracting parties. 166 Incidental deceit renders the party who employed it liable to indemnify for losses and damages only. SECTION SECOND.-Objects of contracts. ART. 1271. All things, even future ones, which are not out of the commerce of man, may be objects of contracts. Nevertheless, no contract may be executed with regard to future inheritances, except those the object of which is to make a division inter vivos of the estate, according to article 1056. All services not contrary to law or to good morals may also be the object of a contract. ART. 1272. Things or services which are impossible can not be the object of a contract. ART. 1273. The object of every contract must be a thing determined with regard to its kind. The indetermination of the amount shall not be an obstacle to the existence of the contract, provided it may be possible to determine it without necessity of a new agreement between the contracting parties. SECTION THIRD.-Consideration of contracts. ART. 1274. In contracts, involving a valuable consideration, the prestation or promise of a thing or services by the other party is understood as a consideration for each contracting party; in remuneratory contracts, the service or benefits remunerated, and in those of pure beneficence, the mere liberality of the benefactor. ART. 1275. Contracts without consideration or with an illicit one have no effect whatsoever. A consideration is illicit when it is contrary to law and good morals. ART. 1276. The statement of a false consideration in contracts shall render them void, unless it be proven that they were based on another real and licit one. ART. 1277. Even though the consideration should not be expressed in the contract, it is presumed that it exists and that it is licit, unless the debtor proves the contrary. CHAPTER THIRD. Effectiveness of contracts. ART. 1278. Contracts shall be binding, whatever may be the form in which they may have been executed, provided the essential conditions required for their validity exist. ART. 1279. Should the law require the execution of an instrument or other special formality in order to make the obligations of a contract binding, the contracting parties may compel each other to comply with said formalities from the moment in which consent and the other requirements, necessary for their validity, have taken place. 167 ART. 1280. The following must appear in a public instrument: 1. Acts and contracts the object of which is the creation, transmission, modification, or extinction of property rights on real property. 2. Leases of the same property for six or more years, provided they are to the prejudice third persons. 3. Marriage contracts, and the creation and increase of dowries, whenever it is intended to enforce them against third persons. 4. The assignment, repudiation, and renunciation of hereditary rights or of those of the conjugal partnership. 5. The power to contract marriage, the general one for lawsuits, and the special ones to be presented in suits; the power to administer property and any other, the object of which is an act drafted or which is to be drafted in a public instrument, or which may prejudice a third person. 6. The assignment of actions or rights arising from an act contained in a public instrument. All other contracts, in which the amount of the prestations of one of the two contracting parties exceeds 1,500 pesetas, must be reduced to writing, even though it be private. CHAPTER FOURTH. Interpretation of contracts. ART. 1281. If the terms of a contract are clear and leave no doubt as to the intentions of the contracting parties, the literal sense of its stipulations shall be observed. If the words should appear contrary to the evident intention of the contracting parties, the intention shall prevail. ART. 1282. In order to judge as to the intention of the contracting parties, attention must principally be paid to their acts, contemporaneous and subsequent to the contract. ART. 1283. However general the terms of the contract may be, there should nQt be understood as included therein things and cases different from those with regard to which the persons interested intended to contract. ART. 1284. If any stipulation of a contract should admit of different meanings, it should be understood in the sense most suitable to give it effect. ART. 1285. The stipulations of a contract should be interpreted in relation to one another, giving to those that are doubtful the meaning which may appear from the consideration of all of them together. ART. 1286. Words which may have different meanings shall be understood in that which may be most in accordance with the nature and object of the contract. ART. 1287. The uses or customs of the country shall be taken into consideration in interpreting ambiguity in contracts, supplying in the same the omission of stipulations which are usually included. 168 ART. 1288. The interpretation of obscure stipulations of a contract must not favor the party occasioning the obscurity. ART. 1289. When it should be absolutely impossible to decide the doubts by the rules established in the preceding articles, if they deal with incidental circumstances of the contract, and said contract involves a good consideration, they shall be decided in favor of the smallest transmission of rights and interests. Should the contract involve a valuable consideration, the doubt shall be decided in favor of the greatest reciprocity of interests. Should the doubts, the decision of which is referred to in this article, involve the principal object of the contract so that the intention or will of the contracting parties can not be ascertained, the contract shall be void. CHAPTER FIFTH. Rescission of contracts. ART. 1290. Contracts validly executed may be rescinded in the cases established by law. ART. 1291. The following may be rescinded: 1. The contracts which may be executed by guardians without the authorization of the family council, provided the persons they represent have suffered lesion of more than one-fourth part of the value of the things which may have been the object thereof. 2. Those executed in representation of absentees, provided the latter have suffered the lesion referred to in the preceding number. 3. Those executed in fraud of creditors, when the latter can not recover, in any other manner, what is due them. 4. Contracts relating to things in litigation should they have been executed by the defendant without the knowledge and approval of the parties in litigation or of the competent judicial authority. 5. Any other contracts specially determined by law. ART. 1292. Payments made, while in a state of insolvency, by a, debtor on account of obligations, which at the time of making, the del)tor could not be compelled to fulfill may also be rescinded. ART. 1293. No contract shall be rescinded for lesion, excepting the cases mentioned in Nos. 1 and 2 of article 1291. ART. 1294. The action for rescission is a subsidiary one; it may be enforced only when the person injured has no other legal remedy to obtain reparation for the injury. ART. 1295. Rescission obliges the return of the things which were the objects of the contract, with their fruits and the sum with interest; therefore it can only be carried into effect when the person who may have claimed it can return that which, on his part, he is bound to do. Neither shall rescission take place when the things which are the object of the contract are legally in the possession of third persons wlio have not acted in bad faith. 169 In such case the indemnity for damages may be claimed from the person who caused the lesion. ART. 1296. The rescission, referred to in No. 2 of article 1291, shall not take place in contracts executed with judicial authorization. ART. 1297. Contracts by virtue of which the debtor alienates property, for a good consideration, are presumed to be executed in fraud of creditors. Alienations for valuable considerations, made by persons against whom a condemnatory judgment, in any instance, has been previously rendered, or a writ of seizure of property has been issued, shall also be presumed fraudulent. ART. 1298. Any person who may have acquired in bad faith things alienated in fraud of creditors must indemnify the latter for the losses and damages caused to them by the alienation whenever, for any reason whatsoever, it should be impossible for him to return them. ART. 1299. The action asking rescission must be brought within four years. For persons subject to guardianship and for absentees, the four years shall not commence until the incapacity of the former has ceased to exist, or the domicile of the latter is known. CHAPTER SIXTH. Nullity of contracts. ART. 1300. Contracts containing the requisites mentioned in article 1261 may be annulled, even when there should be no lesion to the contracting parties, whenever they contain any of the defects which invalidate them according to law. ART. 1301. The action for nullity shall last four years. This term shall commence to run: In cases of intimidation or violence from the day on which it has ceased; In those of error or deceit or falsity of consideration, from the date of the consummnatioin of the contract; When the purpose of the action is to invalidate contracts made by a married woman, without consent or competent authority, from the (late of the dissolution of the marriage; And when it refers to contracts executed by minors or incapacitated persons, from the date they were released from guardianship. ART. 1302. The action for nullity of contracts may be brought by those who are principally or subsidiarily obligated by virtue thereof. Persons with capacity can not, however, allege the incapacity of those with whom they contracted; neither those who caused the intimidation or violence, or employed deceit, or caused the error, can base their action on these defects of the contract. ART. 1303. When the nullity of an obligation has been declared, the contracting parties shall restore to each other the things which have 170 been the object of the contract with their fruits, and the value with its interest, without prejudice to the provisions contained in the following articles. ART. 1304. When the nullity arises from the incapacity of one of the contracting parties, the incapacitated person is not obliged to make restitution, except to the extent he has profited by the thing or by the sum he may have received. ART. 1305. When the nullity arises from the illegality of the consideration or the object of the contract, if the fact constitutes a crime or misdemeanor common to both contracting parties, they shall have no action against each other and proceedings shall be instituted against them, and, furthermore, the things or sum which may have been the object of the contract shall be applied as prescribed in the penal code with regard to the goods or instruments of the crime or misdemeanor. This provision is applicable to the case in which there is a crime or misdemeanor on the part of only one of the contracting parties; but the one who is not guilty may recover what he may have given, and shall not be bound to fulfill what he may have promised. ART. 1306. If the fact of which the illicit consideration consists does not constitute either a crime or misdemeanor, the following rules shall be observed: 1. When both parties are guilty, neither of them can recover what he may have given by virtue of the contract, nor claim the fulfillment of what the other party may have offered. 2. When only one of the contracting parties is guilty, he can not recover what he may have given by virtue of the contract, nor demand the fulfillment of what may have been offered him. The other party, who has had nothing to do with the illicit consideration, may reclaim what he may have given without being obliged to fulfill what he has offered. ART. 1307. Whenever a I)erson, who is obliged by a declaration of nullity to return a thing, can not return it because it has been lost, he must return the fruits collected and the value which the thing had when lost, with interest from the same date. ART. 1308. While one of the contracting parties does not return that which he is obliged to deliver by virtue of the declaration of nullity, the other can not be compelled to fulfill, on his part, what is incumbent on him. ART. 1309. The action of nullity is extinguished from the moment the contract may have been validly confirmed. ART. 1310. Only contracts having all the requisites mentioned in article 1261 can be confirmed. ART. 1311. The confirmation can be made either expressly or in an implied manner. It shall be understood that there is an implied confirmation when, being aware of the cause of the nullity and such cause having ceased to exist, the person who may have a right to invoke it 171 should execute an act which necessarily implies his wish to renounce such a right. ART. 1312. Confirmation does not require the consent of the contracting parties who are not entitled to exercise the action of nullity. ART. 1313. Confirmation purges the contract of all defects which it may have contained from the moment of its execution. ART. 1314. The action for nullity of a contract shall also be extinguished when the thing which is the object thereof should be lost by fraud or fault of the person having a right to bring the action. If the cause of the action should be the incapacity of any of the contracting parties, the loss of the thing shall be no obstacle for the action to prevail, unless it has occurred by fraud or fault on the part of the plaintiff after having acquired capacity. TITLE III. Contracts relating to property by reason of marriage. CHAPTER FIRST. General provisions. ART. 1315. Persons who may be joined in matrimony may, before celebrating it, execute contracts, stipulating the conditions for the conjugal partnership with regard to present and future property, without any other limitations than those mentioned in this code. In the absence of contracts relating to property it shall be understood that the marriage has been contracted under the system of legal conjugal partnership. ART. 1316. In the contracts referred to in the preceding article the contracting parties can not stipulate anything contrary to law or morality, nor humiliating to the authority within the family pertaining respectively to the future spouses. All stipulations not in accordance with the provisions of this article shall be considered void. ART. 1317. There shall also be considered as void and as not written in the contracts mentioned in the two preceding articles the stipulations by which the contracting parties in a general manner stipulate that the property of the spouses shall be submitted to the local laws and customs of regions governed by the law of the forum and not to the general provisions of this code. ART. 1318. A minor who can marry in accordance with law may also execute his marriage contract, but it shall be valid only when in its execution the persons designated by law to give consent to the minor to contract marriage take part therein. In case the marriage contract should be void, because the concurrence and signature of the said persons are lacking and the marriage, however, is valid according to law, it shall be understood that the minor has contracted it under the system of conjugal partnership. 172 ART. 1319. In order that any change in the marriage contract be valid it must be made before the celebration of the marriage and in the presence and with the concurrence of the persons who took part in the contract as contracting parties. The attendance of the same witnesses shall not be necessary. Any of the persons who attended the execution of the original contract can only be substituted by another, or his attendance may not be required when, by reason of death or any other legal reason, at the time of the execution of the new stipulation or the modification of the preceding one, attendance is impossible or should not be necessary according to law. ART. 1320. After the marriage has been celebrated, the marriage contract executed prior thereto can not be changed, whether present or future property is involved. ART. 1321. Marriage contracts and modifications made therein must be contained in a public instrument executed before the celebration of the marriage. Property in the condition referred to in article 1324 is excepted from the preceding rule. ART. 1322. Any modification which may be made in the marriage contract shall have no legal effect with regard to third persons if it does not include the following conditions: 1. That in the proper protocol, by a marginal note, reference be made to the notarial act or instrument containing the modification of the previous contract; and 2. That in case the original contract may be entered in the registry of property, the instrument by which it has been modified, be also entered. The notary shall state these modifications in the authenticated copies of the stipulations or original contract he may issue, under the penalty of indemnifying the parties for losses and damages should he not do so. ART. 1323. For the validity of a marriage contract, executed by a person against whom a sentence of civil interdiction or incapacity has been rendered, or against whom a suit for the same cause has been instituted, the attendance and consent of the guardian shall be indispensable, who for this purpose shall be appointed, by the proper persons, according to the provisions of this code and of the law of civil procedure. ART. 1324. Whenever the property brought by the spouses is not real estate, and that of the husband and wife together does not exceed a total of two thousand five hundred pesetas, and there should be no notary in the town of their residence, the marriage contract may be executed before the secretary of the municipal council and two witnesses, who shall state, on their liability, that they know said property has been delivered or that it has been brought to the marriage, as the case may be. 173 The original contract or contracts shall be preserved in the registry in the archives of the proper municipality. When, in the property brought to the marriage, whatever its value may be, there should be one or more estates, or the contracts relate to real property, they shall always be executed in a public instrument, before a notary, as prescribed in article 1321. ART. 1325. Should the marriage be contracted in a foreign country, between a Spaniard and a foreign woman or between a foreigner and a Spanish woman, and the contracting parties should not state or stipulate anything with regard to their property, it shall be understood, when the husband is a Spaniard, that he marries under the system of the legal conjugal partnership, and when the wife is a Spaniard that she marries under the system of laws in force in the husband's country, all without prejudice to what is established in this code with regard to real property. ART. 1326. All that is agreed to in the stipulations or contracts referred to in the preceding articles, in contemplation of a future marriage, shall be void and of no effect in case the marriage does not take place. CHAPTER SECOND. Gifts by reason of marriage. ART. 1327. Gifts by reason of marriage are those bestowed before its celebration, in consideration of the same, and in favor of one or of both spouses. ART. 1328. These gifts are governed by the rules established in title second, book third, in so far as they are not modified by the following articles. ART. 1329. Minors may bestow and receive gifts in, their antenuptial contracts, provided they are authorized by persons who must give their consent to contract marriage. ART. 1330. Acceptance is not required for the validity of such gifts. ART. 1331. Affianced persons may give each other in their marriage contract as much as the tenth part of their actual property, and with regard to future property in case of death, only a portion within the limit fixed by the provisions of this code relating to testate succession. ART. 1332. The donor, by reason of marriage, must free the property bestowed as a gift from mortgages and any other charges thereon, except annuities (censos) and easements, unless in the marriage stipulations or contract the contrary may have been specified. ART. 1333. A gift bestowed by reason of marriage may be revoked 0)nly in the following cases: 1. If it should be conditional and the condition should not be fulfilled. 2. If the marriage should not take place. 3. If the persons should marry without having obtained the consent il accordance with the provisions of rule 2, article 50, or when the marriage is annulled and there should exist bad faith on the part of one of the spouses, in accordance with No. 3, article 73 of this code. 174 ART. 1334. All gifts between spouses bestowed during the marriage shall be void. Moderate gifts which spouses bestow on each other on festive days for the family are not included in this rule. ART. 1335. All gifts bestowed during marriage by one of the spouses upon the children, whom the other spouse may have had by another marriage, or upon the persons of whom he or she is a presumptive heir, at the time of the gift, shall be void. CHAPTER THIRD. Dowry. SECTION FIRST.-The creation and guarantee of dowry. ART. 1336. A dowry is composed of the property and rights brought as such by the wife to the marriage at the time of contracting it, and of those which she acquires (luring the same by gift, inheritance, or legacy, as dowry property. ART. 1337. Real property acquired during the marriage shall also be considered as dowry in the following cases: 1. When it is exchanged for other dowry property. 2. By right of redemption belonging to the wife. 3. By delivery in paymenlt of tlie dowry. 4. By purchase with money belonging to the dowry. ART. 1338. The parents and relatives of the spouses and the persons not belonging to the family may create the dowry in favor of the wife, either before or after the celebration of the marriage. The husband may also create it before the marriage, but not after it. ART. 1339. A dowry created before or at the time of the celebration of the marriage shall be governed in all that is not provided in this chapter by the rules for gifts made in consideration thereof. A dowry created after the marriage shall be governed by thle rules for ordinary gifts. ART. 1340. The father or the mother, or whichever one of them is alive, is bound to give a dowry to his or her legitimate daughters, except in the cases in which they should need their consent, according to law, to contract marriage and marry without obtaining it. ART. 1341. The obligatory dowry referred to in the preceding article shall consist in a moiety of the presumptive rigorous legal portion. Should the daughter haxe property equivalent to the moiety of her legal portion, this obligation shall cease, and should the value of the property not cover the moiety of the legal portion, the donor shall supl)lY the balance required to complete it. In any case, it is prohibited to make investigations with regard to the fortune of the parents in order to determine the amount of tlhe dowry, and the courts, in an act of voluntary jurisdiction, shall reg'ilate it without any further investigation than the statements of the 175 parents who are to give the dowry and those of the two nearest male relatives of the daughter, who are of age, one of the paternal line and the other of the maternal, residing in the same place or within the judicial district. In the absence of relatives of age, the courts shall decide, in the exercise of their discretion, by the statements of the parents only. ART. 1342. The parents may comply with the obligation of giving dowries to their daughters, either by delivering to them the principal of the dowry or by paying them an annual income as fruits or interest thereof. ART. 1343. When the husband alone or both spouses jointly create a dowry for their daughters, it shall be paid from the property of the conjugal partnership. Should there be no property, it shall be paid by moieties, or in. the proportion in which the parents may have, respectively, bound themselves, with the property belonging to each spouse. If the wife alone should grant the dowry, what she has given or promised shall be taken from her own property. ART. 1344. The dowry acknowledged by the husband, the delivery of which does not appear, or appears only in a private instrument, shall produce no other effect than that of a personal obligation. ART. 1345. Notwithstanding the provisions of the foregoing article, the wife in whose favor an acknowledged dowry has been created by the husband before the celebration of the marriage, or within the first year thereof, may demand at any time that the said husband secure it by a mortgage, provided she judicially proves the existence of the dowry property or of other similar or equivalent property at the time she instituted her claim. ART. 1346. Dowry may be either appraised or unappraised. It shall be appraised, if the property of which it consists was appraised, at the time of the creation of the dowry, its ownership being transferred to the husband, who became obliged to return its value. It shall be unappraised if the wife retains the ownership of the property, whether appraised or not, and the husband remains bound to return the same property. If the marriage contract should not state the kind of dowry, it shall be considered as unappraised. ART. 1347. The increase or the reduction of the appraised dowry shall be for the account of the husband, who shall remain bound only to return the value at which he received it and to guarantee the rights of the wife in the manner prescribed in the following articles. ART. 1348. If the husband who may have received the appraised dowry believes himself prejudiced by its appraisal, he may request that the error or injury be remedied. ART. 1349. The husband is bound: 1. To record in his name and to mortgage in favor of his wife the real property and property rights which he received by way of appraised dowry, or other sufficient ones to secure the appraised value thereof. 176 2. To secure with a sufficient special mortgage all other property which may have been delivered to him by way of appraised dowry. ART. 1350. The sum which must be secured by reason of the appraised dowry shall not exceed the amount of the valuation, and if that of said dowry be reduced, the mortgage shall be reduced in the same proportion. ART. 1351. The mortgage created by the husband in favor of the wife shall secure the restitution of the property or its appraised value in the cases in which this must take place according to law and with the limitations therein specified, and it shall become of no effect and may be canceled when, for any legal cause whatsoever, the husband may be exempted from the obligation of making the restitution. ART. 1352. A married woman of age may herself demand the creation of the mortgage and the record of property referred to in article 1349. Should she not as yet have celebrated the marriage, or if, having celebrated it, she be a minor, said right must be enforced in her name, and the determination of the sufficiency of the mortgage which is created shall be passed upon by the father, the mother, or the person who may have given the dowry or the property to be secured. In the absence of these persons, and when the woman is a minor, married or not, the guardian, the protutor, family council, or any of its members, shall require that the same rights be enforced. ART. 1353. If the guardian, protutor, or the family council do not demand the creation of the mortgage, the fiscal shall officially, or at the instance of any other person, demand that the husband be compelled to execute the same. Municipal judges shall also be obliged to insist that the department of public prosecution shall compally with the provisions of the preceding paragraph. ART. 1354. Should the husband have no property of his own upon which to create the mortgage referred to in article 1349, he shall remain bound to create it on the first real estate or property rights he may acquire. ART. 1355. Whenever all or a part of the property which constitutes an appraised dowry should consist of public securities or bonds which can be quoted, and as long as their value is not secured by the mortgage which the husband is bound to create, the titles, records, or documents representing it shall be deposited, in the name of the wife and with the knowledge of the husband, in any of the public institutions designated for that purpose. ART. 1356. In cases in which the husband should be obliged to secure with a mortgage personal property belonging to an unappraised dowry, the provisions of articles 1349 to 1355, relating to appraised dowries, shall be applicable. 177 SECTION SECONI).-A dministration and usuJruct of the dowry. ART. 1357. The husband is the administrator and usufructuary of the property which may constitute the unappraised dowry, with the rights and obligations pertaining to the administration and the usufruct, reserving the modifications mentioned in the following articles: ART. 1358. The husband is not bound to give the security required of ordinary usufructuaries; but he is obliged to enter in the registry, if not already recorded, in the name of the wife and as unappraised dowry, all the real property and property rights which he may receive as such, and to create a special sufficient mortgage as security for his administration, usufruct, and restitution of the personal property. ART. 1359. Notwithstanding the provisions of the two preceding articles, the husband who should receive securities which can be quoted, or perishable property, by way of appraised or unapprasied dowry, and should not have secured them with a mortgage, may, nevertheless, substitute them with other equivalent ones with the consent of the wife, should she be of age, or of the persons referred to in article 1352, should she be a minor. He may also alienate said property with the consent of the wife, and, in a proper case, with that of the aforesaid persons, on the condition that its value be invested in other property, securities, or rights equally safe. ART. 1360. The wife retains the ownership of the property constituting the unappraised dowry, and, consequently, any increase or decrease it may have shall also belong to her. The husband is only liable for the deterioration which such property may suffer by his fault or negligence. ART. 1361. The wife may alienate, incumber, or mortgage the property of the unappraised dowry, should she be of age, with the permission of the husband, and, should she be a minor, with judicial authority and with the intervention of the persons mentioned in article 1352. Should she alienate said property, the husband shall be bound to create a mortgage, in the same manner and under the same conditions as with regard to the property of the appraised dowry. ART. 1362. The property of the unappraised dowry shall be liable tor the usual daily expenses of the family, incurred by the wife, or by ler order with the tacit consent of the husband, but in this case al)plication shall first be made of the property belonging to the conijugal partnership, and then of that belonging to the husband. ART. 1363. The husband can not, without the consent of the wife, lease for longer than six years real property of the unappraised dowry. nlu any case, the advance of income or rentals made to the husband tor more than three years shall be considered void. 6433 —12 178 ART. 1364. If the spouses, by virtue of the provisions of article 1315, should have stipulated that conjugal partnership shall not exist between them, without stating the rules by which their property is to be governed, or should the wife or her heirs renounce said partnership, the provisions of this chapter shall be observed, and the husband, in compliance with the obligations stated therein, shall receive all the fruits which would be considered as earnings of the partnership in case of its existence. SECTIO1N THIRD.-Restitution of dowry. ART. 1365. The dowry shall be returned to the wife or to her heirs in the following cases: 1. Should the marriage be dissolved or declared void. 2. Should tlhe administration of the dowry be transferred to the wife in the case prescribed in the second paragraph of article 225. 3. Should the courts order it in accordance with the provisions of this code. ART. 1366. The restitution of an appraised dowry shall be made by the husband or his heirs delivering to the wife or to her heirs the value at which it was appraised when the husband received the same. From the value shall be deducted: 1. The dowry created in favor of the daughters, in so far as it can be charged against the private property of the wife, in accordance with article 1343. 2. The debts contracted by the wife before the marriage and which the husband may have paid. ART. 1367. The real property of the unappraised dowry shall be restored in. the condition in which it may be; and should it have been alienated, the proceeds of the sale shall be delivered, deducting what may have been applied to the payment of the exclusive obligations of the wife. ART. 1368. Tlhe payment of the expenses and the improvements, made by the husband in the unappraised dowry property, shall be goverllned by the provisions relating to the possessor in good faith. ART. 136;9. After the marriage has been dissolved or declared void, the husband or his heirs may be compelled to the immediate restitution of tlhe real and personal property of the unappraised dowry. AuT. 1370. Until one year, to be counted from the dissolution of the marriage, has elapsed, neither the husband nor his heirs can be required to return the money, the perishable property and public securities which do not exist totally or in part upon the dissolution of the conjugal partnership. ART. 1371. The husband or his heirs shall pay to the wife or to her heirs, from the date of the dissolution of the marriage until the restitlution of the dowry, the legal interest on what they must pay in monley on the amount of the perishable property and what may be earned by 179 the public securities or credits in the meantime, according to their condition or character, without prejudice to the provisions of article 1379. ART. 1372. In the absence of an agreement between the persons interested, or of an express stipulation in the marriage contract, the assets of unappraised dowry, or the part thereof which may not be restored in the same property which may have constituted the dowry, or in that which may have substituted the same, shall be restored and paid in money. From this rule is excepted the restitution of the value of personal dowry property which may not exist and which may be paid with other personal property of the same kind, should there be any, in the conjugal partnership. The restitution of unappraised perishable property shall be. made with an equal amount of property of the same kind. ART. 1373. In the same manner as designated in the preceding article there shall be restored the part of the dowry assets consisting1. Of marriage gifts legally bestowed by the husband upon the wife to take effect after his death, excepting the provisions with regard to the spouse who may have acted in bad faith in the case of the annulient of the marriage, and in that of article 1440. 2. Of indemnities which the husband may owe his wife in accordance with this code. ART. 1374. The conjugal couch, with whatever constitutes it, and the clothing and dresses for ordinary use of the widow shall be delivered to her without being charged to her dowry. ART. 1375. The credits or rights brought to the marriage by way of unappraised dowry, or assigned with this character, shall be delivered in the condition in which they are at the time of the dissolution of the marriage, unless through negligence of the husband said credits may not have been collected or may have become unrecoverable, in which case the wife and her heirs shall have a right to demand their value. ART. 1376. When two or more dowries are to be restored at the same time, each of them shall be paid with the property which may exist and originally belonged to them, respectively, and in their absence, if the estate inventoried should not be sufficient to cover both of them, their payment shall be effected according to priority of time. ART. 1377. For the liquidation and restitution of the unappraised dowry, the following items shall be deducted should they have been paid by the husband: 1. The amount of the judicial costs and expenses incurred in the collection and defense of the dowry. 2. The debts and obligations inherent to or affected by the dowry, Which in accordance with the marriage contract or with the provisions of this code should not be chargeable to the conjugal partnership. 3. The sums for which the wife may be specially liable, in accordance with the provisions of this code. 180 ART. 1378. At the time of the restitution of the dowry, the marriage gifts legally bestowed on the husband by his wife shall be paid to him without prejudice to the provisions of this code for the case of separation of property, or that of annullment of the marriage in which bad faith may have existed on the part of one of the spouses. ART. 1379. Should the marriage be dissolved by the death of the wife, the interest or fruits of the dowry to be restored shall run in favor of the heirs from the day of the dissolution of the marriage. Should the marriage be dissolved by the death of the husband, the wife may choose between demanding the interest and fruits of the dowry for one year or that support be given her from the estate of the inheritance of the husband. In any case, the widow shall receive from the funds of the inheritance the value of the mourning apparel. ART. 1380. After the marriage has been dissolved, the pending fruits or rents shall be divided pro rata among the surviving spouse and the heirs of the deceased in accordance with the rules established for a case in which the usufruct ceases. CHAPTER FOURTH. Paraphernal property. ART. 1381. Paraphernal property is that which the wife brings to the marriage without being included in the dowry and that she may acquire after the creation of the same without being added thereto. ART. 1382. The wife retains the ownership of the paraphernal property. ART. 1383. The husband can not institute actions of any kind whatsoever with regard to the paraphernal property without the intervention or consent of the wife. ART. 1384. The wife shall have the management of the paraphernal property unless she has delivered the same to her husband, before a notary, in order that he may administer said property. In such case the husband is obliged to create a mortgage for the value of the personal property he may receive, or to secure said property, in the manner established for dowry property. ART. 1385. The fruits of the paraphernal property form a part of the assets of the conjugal partnership, and are liable for the payment of the marriage expenses. The property itself also shall be liable, in the case of article 1362, lrovided that of the husband and the dowry property should be insufficient to cover the liabilities referred to therein. ART. 1386. The personal obligations of the husband can not be paid out of the fruits of the paraphernal property unless it be proven that they were incurred for the benefit of the family. ART. 1387. The wife can not alienate, encumber, or mortgage the paraphernal property without the permission of the husband, nor appear in court to litigate with regard to the same, unless she has been judicially authorized for the purpose. 181 ART. 1388. When the paraphernal property, the administration of which is reserved by the wife, should consist in money or public securities or valuable personal property, the husband shall have a right to demand that said property be deposited or invested in such manner that the alienation or pledge of the same would be impossible without his consent. ART. 1389. The husband, to whom the paraphernal properly may have been delivered, shall be subject, with regard to the management of the same, to the rules established with regard to the property of the unappraised dowry. ART. 1390. The alienation of the paraphernal property entitles the wife to demand the creation of a mortgage for the amount the husband may have received. The husband as well as the wife, in a proper case, may exercise, with regard to the proceeds of the sale, the right granted them by articles 1384 and 1388. ART. 1391. The return of the paraphernal property, the administration of which has been turned over to the husband, shall take place in the same cases and in the same manner as that of the unappraised dowry property. CHAPTER FIFTH. Conjugal partnership. SECTION FIRST -General provisions. ART. 1392. By virtue of the conjugal partnership the earnings or profits indiscriminately obtained by either of the spouses during the marriage shall belong to the husband and the wife, share and share alike, upon the dissolution of the marriage. ART. 1393. The conjugal partnership shall always begin on the same day that the marriage is celebrated. Any stipulation to the contrary shall be void. ART. 1394. This partnership can not be renounced during the marriage, except ini case of judicial separation. When the renunciation should take place by reason of a separation, or after the marriage has been dissolved or annulled, said renunciation shall be included in a public instrument, and the creditors shall have the right granted them in article 1001. ART. 1395. The conjugal partnership shall be governed by the rules o'f articles of partnership in all that does not conflict with the express 1)rovisions of this chapter. SECTION SECOND.-Property belonging to each of the spouses. ART. 1396. The following is the separate property of each of the sp1ouses: 1. That brought to the marriage as his or her own. 2. That acquired for a good consideration by either of them during tlbe marriage. 182 3. That acquired by right of redemption or by exchange for other property belonging to one of the spouses only. 4. That bought with money belonging exclusively to the wife or to the husband. ART. 1397. A person giving or promising capital to the husband shall not be subject to eviction, except in case of fraud. ART. 1398. Property bestowed as a gift or left by will jointly to the spouses and with a designation of specified shares shall belong as dowry to the wife and as capital to the husband in the proportion fixed by the donor or testator; and, in the absence of said designation, share and share alike, without prejudice to the provisions of article 637. ART. 1399. Should the gifts be bestowed for a valuable consideration, the amount of the charges shall be deducted from the dowry, or from the capital of the spouse who bestows them, provided they have been borne by the conjugal partnership. ART. 1400. In case that any credit, payable within a certain number of years, or a pension for life belongs to either of the spouses, the provisions of articles 1402 aiid 1403 shall be observed in order to determine what constitute, the dowry and what forms the capital of the husband. SECTION THIlR). —Property of the conjugal partnership. ART. 1401. To the coikjugal partnership belong: 1. Property acquired for a valuable consideration during the marriage at the expense of the partnership property, whether the acquisition is made tor the partnership or for one of the spouses only. 2. That obtained by the industry, salaries, or work of the spouses or of either of them. 3. The fruits, income, or interest collected or accrued during the marriage, cominig from the partnership property, or from that which belongs to either one of the spouses. ART. 1402. Whenever a sum or credit, payable in a certain number of years, belongs to one of the spouses, the sums collected for installments due during the marriage shall not be partnership property, but shall be considered as capital of the husband or of the wife, according to whom the credit belongs. ART. 1403. The right to a usufruct or pension, belonging to one of the spouses, either in perpetuity or for life, shall form part of his or her own property; but the fruits, pensions, and interest due, during the marriage, shall be partnership property. In this provision is included the usufruct which the spouses have ill the property of their children, even though they be of another marriage. ART. 1404. The useful expenses made on behalf of the private property of either one of the spouses through advances made by the partier ship or by the industry of husband or wife are partnership property. 183 Buildings constructed during the marriage, on land belonging to one of the spouses shall also belong to the partnership, but the value of the land shall be paid to the spouse owning the same. ART. 1405. Whenever the dowry or the capital belonging to the husband should consist, in whole or in part, of cattle existing at the time of the dissolution of the partnership, the heads of cattle exceeding the number which were brought to the marriage, shall be considered as partnership property. ART. 1406. The earnings obtained by the husband or wife by gainmbling, or proceeding from other causes exempted from restitution, shall belong to the conjugal partnership, without prejudice in a proper case, to the provisions of the penal code. ART. 1407. All the property of the marriage shall be considered as partnership property until it is proven that it belongs exclusively to the husband or to the wife. SECTION FOURTH.-Charges and obligations of the conjugal partnership. ART. 1408. The conjugal partnership shall be liable for: 1. All the debts and obligations contracted during the marriage by the husband, and also for those contracted by the wife in the cases in which she can legally bind the partnership. 2. The arrears or interest, matured during the marriage, of obligations which affect the private property of the spouses as well as the partnership property. 3. The minor repairs or of mere preservation, made during the marriage, to the private property of the husband or the wif