The judge may also authorize, when he considers it proper, that the administrator be paid his necessary traveling expenses incurred in the discharge of his duties." ART. 1033. The subaltern managers which the deceased may have had beyond the town where the proceedings are being held, for the care of his property, shall be retained at the same compensation and with the same powers which were granted them by the said deceased. ART. 1034. The said managers shall render their accounts and forward what they may receive to the judicial administrator, considering themselves as employees of the latter, but he can not remove them except for good cause and with the authority of the judge. The judicial administrator may, with the same authority and under his liability, fill the vacancies which may occur. TITLE X.-TESTAMENTARY PROCEEDINGS. SECTION I.-GENERAL PROVISIONS. ART. 1035. Testamentary proceedings may be voluntary or nec essary. ART. 1036. They are voluntary when instituted by a legitimate party. ART. 1037. A legitimate party to institute testamentary proceedings shall be: 1. Any of the testamentary heirs. 2. The surviving spouse. 3. Any of the legatees of an aliquot part of the estate. 4. Any creditor, provided he presents a written instrument conclusively proving his claim." ART. 1038. The voluntary heirs and the legatees of an aliquot part can not institute voluntary testamentary proceedings when the testator has expressly prohibited it. ART. 1039. Nor can such proceedings be instituted by creditors: 1. When their claims are secured by mortgage or other sufficient guaranty. 2. When otherwise the heirs give them sufficient security to secure their claims independently of the property of the deceased. The administrator is not entitled to any other recompense but that mentioned in the different clauses of this article.-Decision of March 21, 1873. The costs of collection constitute part of the administration, and if a decision allows a fixed amount for the expenses of the administration, the cost of collection can not be included therein.-Decision of March 29, 1884. Until the action becomes prescribed, the institution of voluntary testamentary proceedings is proper for the liquidation of the hereditary portions.-Decision of May 28, 1888. The right of the legatees of an aliquot part of the estate can not be extended to anyone else, and it does not therefore include the legatees of specific and determined things, and therefore said legatees do not have the legal capacity to institute testamentary proceedings. Decision of June 22, 1880. Although according to the Law of Civil Procedure heirs may, among others, institute testamentary proceedings, a simple statement of being an heir is not sufficient if impugned, because from such time there arises a question which must be previously decided, and which must be heard in an ordinary action, whether the right alleged is or is not true.-Decision of September 29, 1877. Executors, no matter how full their powers may be, are not considered legitimate parties for the institution of voluntary testamentary proceedings.—Decision of June 23, 1883. Heirs are considered legitimate parties for the institution of testamentary proceedings; but not the persons who believe themselves entitled to be heirs.Decision of January 28, 1889. ART. 1040. Testamentary proceedings shall be called necessary in the cases wherein the judge must institute them ex officio. Such cases are: 1. When all or any of the heirs are absent and have no legal representative in the place where proceedings are to be instituted. 2. When the heirs, or any of them, are minors or incapacitated, unless they are represented by their parents." ART. 1041. In such cases any of the judges mentioned in rule 5 of article 63 may institute proceedings, taking the steps indicated in said rule and in article 958. ART. 1042. In the first case of article 1040, as soon as the relatives appear in person or by means of a legal representative, there shall be delivered to them the property and effects of the deceased, and the judicial intervention shall cease unless requested by any of the legitimate parties for the purpose of instituting voluntary probate proceedings. ART. 1043. Even though the heirs are minors or incapacitated, necessary testamentary proceedings can not be instituted, if such proceedings have been expressly prohibited by the testator. If the provisional measures referred to in article 1041 have been commenced, they shall be suspended as soon as said prohibition is proven by a copy of the will. ART. 1044. When the testator has forbidden such judicial intervention in his will, in order that such prohibition may produce the effects mentioned in the foregoing article and in article 1038, it shall be necessary that he shall have appointed one or more persons, duly empowered, so that either in the character of executors, accountants, or any other capacity they may execute extrajudicially all the operations in the administration of the estate." ART. 1045. Should the testator have established rules distinct from those prescribed in this law for the inventory, appraisement, liquidation, and partition of his property, the voluntary testamentary heirs and the legatees shall respect them and submit thereto. The same rule shall apply to forced heirs provided that their légitimes are not injured or damaged. a When the heir instituted dies before the testator, necessary testamentary proceedings may be instituted ex officio, because the unknown heir must be considered as absent.-Decision of June 23, 1883. When the testator authorizes his executors to discharge the duties of accountants and liquidators of the estate, notwithstanding the fact that he leaves children under age, it is understood that he wishes to prevent the institution of necessary testamentary proceedings.Decision of June 30, 1862. A judgment deciding whether testamentary proceedings are necessary or voluntary is final for the purposes of annulment of judgment.-Decision of April 15, 1862. Articles 1044 and 1045 of the law of procedure do not affect the absolute right of a forced heir to institute universal testamentary proceedings.-Decision of July 5, 1887. The second paragraph of article 1057 of the Civil Code not only confirms the provisions of this article, but extends the same in order to prevent judicial intervention and even approval, if the testator has prohibited it, and notwithstanding the provisions of article 1048. Légitime: That portion of a parent's estate of which he can not disinherit his children without a legal cause. & The provisions of article 1045 apply only to the case that a testator has established rules distinct from those prescribed in the law for the inventory, appraisement, and division of his property, affecting the form or manner of performing these acts, and not the absolute right of forced heirs to institute the said universal proceedings.-Decision of July 5, 1887. ART. 1046. The interested parties may, at any stage of voluntary testamentary proceedings, terminate the same and make such agreements as they may consider proper. For this purpose, in addition to the heirs and legatees, the creditors who may have instituted the proceedings and the surviving spouse shall be considered interested parties. Should they request it by common consent, the judge shall order the proceedings closed and the property placed at the disposal of the heirs. ART. 1047. In the necessary proceedings, after the judicial inventory and deposit of the property have been made, as prescribed in article 1094, the persons interested may also desist from further proceedings, in order to attend extrajudicially all other steps in the settlement of the estate. In such case the judge shall not place the property at the disposal of the heirs until after the partition thereof has been approved. ART. 1048. The liquidations and partitions of the inheritance made extrajudicially, even though made by accountants appointed by the testator, must be presented for judicial approval, providing that a minor, an incapacitated person, or an absentee whose residence is unknown, has any interest therein as an heir or legatee of an aliquot part thereof. ART. 1049. In order to obtain said approval, the procedure prescribed in articles 1076 et seq. shall be observed. Partitions made by the testators themselves are not included in the provisions of this and the foregoing article, and do not require judicial approval." ART. 1050. To minors, incapacitated persons, or absentees are reserved the rights granted them by law in addition to those vested in them by the provisions of this title. ART. 1051. Testamentary proceedings do not debar heirs from exercising at the proper time and in the proper manner the right to deliberate or the benefit of inventory. When instituting proceedings, they may request that the legal term for deliberating be granted them, or state that they accept the inheritance under the benefit of an inventory." In either case, the inventory having been regularly made, the judge shall order that it be submitted to them so that they may decide what they may consider most conducive to their interests. ART. 1052. Estates of deceased persons may be declared insolvent or in bankruptcy, in the same manner as individuals, in which case they shall be subject to the procedure prescribed for the said proceedings. SECTION II.-VOLUNTARY TESTAMENTARY PROCEEDINGS. ART. 1053. He who institutes voluntary testamentary proceedings must present the death certificate of the person whose succession is in question, and if this be impossible, another document or proof of death, and the will of the deceased. ART. 1054. If such person be a legitimate party, and the requisites mentioned in the foregoing article are complied with, the judge shall order that the petition made in his name be ratified. 75270--09 a See arts. 1056 and 1057 of the Civil Code. -27 This ratification having been made, the judge shall consider proceedings instituted, and shall order the heirs, the legatees of aliquot parts, and the surviving spouse, if there be one, to be formally cited to appear, and also, in a proper case, the creditors who may have instituted proceedings. ART. 1055. If there be any of said heirs or legatees who, by reason of being minors or incapacitated, have a tutor or curator, the citation shall be served upon the latter. Should they have no tutor or curator, one shall be appointed, or they shall be required to appoint one according to law, unless they are represented by their parents. ART. 1056. When the tutor, curator, father, or mother should have an interest in the estate incompatible with that of the minor or incapacitated person whom they represent, a special curator ad litem shall be appointed according to law, whose intervention shall be limited to the acts wherein such incompatibility exists." ART. 1057. The heirs and other absent interested parties who may have a known place of residence shall be cited to appear personally. Those who have no known residence shall be cited by means of edicts posted in the public places and inserted in the official newspapers of the locality where the proceedings are pending, if there be any, and in the Boletin of the province, or in its absence, in the Gaceta of the general government. Should the judge consider it necessary, in view of the circumstances of the case, the edict shall be published in the Gaceta de Madrid or in the last place of residence of the absentee. ART. 1058. The deputy public prosecutor shall also be cited to appear in order to represent the persons interested in the estate who are minors or incapacitated and have no legal representative, the absentees whose place of residence is unknown, and those who, requiring a citation in person by reason of their having a known residence, can not be found at the place where the proceedings are being held. ART. 1059. The representation of the deputy public prosecutor shall cease With regard to minors and incapacitated persons, as soon as a tutor or curator has been appointed for them. With regard to absentees whose whereabouts is unknown, as soon as they appear in the proceedings or can be cited personally, although they should afterwards again absent themselves. With regard to absentees cited personally, as soon as they appear, or twenty days from the time of the citation if they reside in the territory of the respective island, two months if they reside in Porto Rico and must claim their rights in Cuba, or vice versa, and six months if residing in any other place. In the last case the proceedings shall be continued in default without further citation of parties properly cited and who have not appeared. ART. 1060. If the person instituting the action should request at the proper time a judicial supervision of the estate, it shall be so ordered, • See art. 165 of the Civil Code. and the steps prescribed in article 958 shall be taken in such manner as to cause the least possible injury." ART. 1061. Said intervention can only be ordered for the judicial preparation of the inventories, when requested after the thirty days following the death of the testator, or from the time when notice of the death has been received. ART. 1062. The court clerk shall be commissioned to make the judicial inventory, without prejudice to the right of the judge to be present at the making thereof, in whole or in part, when one of the interested parties requests it and he considers it necessary. ART. 1063. The court clerk shall commence to make the judicial inventory within eight days after the making thereof was ordered, fixing a day and hour there for which shall be communicated to the persons interested when citing them to appear for said purpose. ART. 1064. The following persons shall be cited to appear at the making of the inventory: 1. The heirs or their legal representatives who may be at the place where the proceedings are pending, or who may have entered their appearance of record, and the deputy public prosecutor (promotor fiscal) for the absentees, if there be any. 2. The surviving spouse, or his or her legal representative. 3. The legatees of an aliquot part. 4. The creditors who may have instituted the proceedings or who may have been admitted therein as legitimate parties. ART. 1065. All the persons mentioned in the foregoing article having been cited to appear, at the specified day and hour the court clerk shall proceed, with those who may be present, to make the inventory, which shall contain a description of the property of the estate according to the following order: 1. Cash. 2. Public securities. 3. Jewelry. 4. Live stock. 5. Products. 6. Personal property. 7. Real estate. 8. Rights and actions. a As these proceedings are not the legal means to question and disturb rights of which third persons are possessed and in quiet enjoyment, but only a series of judicial acts prescribed by law in order that, at the instance of those having a right to institute the said proceedings, the inheritance be distributed among them when they have not been able to come to an agreement as to its extrajudicial partition, the intervention authorized by the law of civil procedure must be limited to the property and rights which have not left the possession of the testator and which are not possessed under a more or less questionable title by third persons, without prejudice to the right of the heirs to institute the proper actions for the purpose of recovering for the inheritance such property as rightfully belongs to the same, as neither this law nor jurisprudence denies to third persons who are prejudiced, when such principles are violated, the right to appear in such action, not as legitimate parties in the question of the partition of the inheritance, but in view of the right which they have, not to be dispossessed or disturbed in their possession until they have been heard and defeated in court.-Decision of December 26, 1876. |