Footnote: The title of “Barone di Gomerino” was originally conferred jointly on Paolo Testaferrata, together with his wife Beatrice, by Grand Master Perellos, by a diploma of the 24th December 1710.
This title is remarkable not only because of the considerations made hereafter but especially because it was granted jointly to two persons, one of whom being a woman.
Some published sources maintain that this title is related to the ownership of the Gomerino property. Unfortunately, this is was never the case as seen below. The title of Gomerino is purely nominal and does not have any property attached to it. In their general observations, the Royal Commissioners observed that most of the titles granted by the Grandmasters were merely honorary and had no relevance on property tenure “although it appears that those titles (granted by the Grand Masters) have derived their different denominations from several feudal lands existing in these islands, this annexation, however, is in most cases purely nominal, for those lands were never in reality conveyed to the grantees, but they remained as they are still Government Property.” The Commissioners also identified the only three exceptions to this purely nominal phenomenon, where tenure of property was a prerequisite namely Bahria, delle Catene, and Senia, the last being a divisible property. See:- “Correspondence and Report of the Commission appointed to enquire into the claims and grievances of the Maltese Nobility”, May 1878, presented to both Houses of Parliament by Command of Her Majesty (C.-2033.) (See Report Paras. 82).
In the case of Gomerino the property was Beatrice’s own allodial property.
The faculty to nominate a successor is discussed hereunder. Altogether the Grand Masters created six titles which are disposable by nomination, namely Gomerino (Perellos), Budack (Perellos), San Marciano (Vilhena); Tabria(Vilhena), Culeja (Despuig) and Benuarrat (Despuig).
At the time the Royal Commission was formed, this title was attributed to both Pietro Paolo Testaferrata AbelaMoroni and Augusto Testaferrata Abela. It is to be remarked that according to the list of “Titled Heads of the Maltese Nobility” originally presented to the Commissioners, there is no reference to any dispute. At that time the only title indicated as being in dspute was that of Catena (See:- “Correspondence and Report of the Commission appointed to enquire into the claims and grievances of the Maltese Nobility”, May 1878, presented to both Houses of Parliament by Command of Her Majesty (C.-2033.), pages 54-55))
The Royal Commissioners decided not to express any opinion on this title saying that the title was contested and that it would be prudent not to hear the claimants. The Commissioners did however go as far as outlining the history of this title and the validity of the 1710 grant. “Correspondence and Report of the Commission appointed to enquire into the claims and grievances of the Maltese Nobility”, May 1878, presented to both Houses of Parliament by Command of Her Majesty (C.-2033.) (See Report Paras. 24-26).
The actual report says the following:
“Among the titles conferred by the Grand Masters and now inquired into, the most ancient is the barony of Gomerino, created by Grand Master Perellos, by a patent dated 24th December 1710, and granted to Paolo Testaferrata and Beatrice Cassia, his wife, with succession to one of their legitimate and natural descendents for ever. Gomerino is the name of certain lands situated in this island: they were granted originally as a noble fee by Frederick King of Sicily to GuglielmoSurdo, and after having been purchased by Grand Master Fr. Giovanni La Valette, they were again conferred in allodium by Grand Master Fr. Alosio Wignacourt on Gio. Maria Cassia.
By the said diploma of the 24th December 1710, the Grand Master in creating the barony of Gomerino gave to the said Paolo and Beatrice Testaferrata Cassia, and to all and each of the holders of the title of “Barone di Gomerino” in perpetuum, the power of nominating to the succession of the title one of their male descendents at their will and pleasure, and on failure of such nomination it was provided that the title should descend to their first-born child. The subjoined is an extract from the original diploma registered in the Government Cancelleria.: Praefeatos Paulum et Beatricem et post eosdem, omni futuro tempore et in perpetuum, unum ex omnibus et singulis eorumdem successoribus de suis corporibuslegitime et naturaliter descendentibus, semper Baronis Gomerini titulo decoarus et insignimus, et barones creamus et constituimus......Tribuentes iisdem Paulo et Beatrice omnibusque ac singulis aliis qui omni futuro tempore ax in perpetuumtitulo ac prerogativa Baronis Gomerini fruentur, facoltatem nominandi et eligendi unum ex dictis eorum descendentibussive marem sive foeminanam, ad ipsorumet libitum et beneplacitum, pro hujusmodi titulo Baronis Gomerini consequendo et adipiscendo, dictaque nominatione et electione minime facta, ex tunc censeatur per eosdem eorumque singulos barones, nominatus et electus ipsorum Primogenitus, nisi eri ad Sacros Ordines promotus et in Religione professus et in defectumarium foemina primogenita.”
This title is claimed by Dr. Pietro Paolo Testaferrata Abela Moroni and Augusto Testaferrata Abela, both of whom are descendents of the said Paolo and Beatrice Testaferrata, and each of whom demands the title to the exclusion of the other.
Augusto contends that he is the possessor of the garden and lands of Gomerino, and that he was appointed to the title by Francesco his brother, the last holder of it, by a testament published on the 12th January 1861.
Dr. Pietro Paolo asserts that the title belongs to him as the first-born son in the primogenial line of the said Paolo and Beatrice, and as the holder of a primogenitura (Anglice entailed estate) descendible from the first born to the first-born child) to which Beatrice had annexed the baronial title.”
Both these gentlemen have produced documents and genealogical trees, in order to substantiate their respective claims. In the year 1861 a suit to the succession to the lands of Gomerino was instituted in the civil courts of these islands by EttoreTestaferrata against Augusto his brother, after the death of the last possessor of those lands, Francesco, their common brother. The court gave judgment in favour of Augusto, who was thereby put in possession of the lands of Gomerino, but no decision was delivered as to the title, which was claimed by Ettore as annexed to the lands of Gomerino.
Whilst the cause between the two brothers was pending, Giuseppe Testaferrata, father of the present claimant Dr. PietroPaolo, in a protesto, which he presented on the 21st April 1862 against the two contending parties, asserted that the title belonged to him, for he contended, it was not annexed to the lands of Gomerino, but to the primogenitura founded by Beatrice Testaferrata and her predeceased husband Pietro Paolo (should read Paolo) Testaferrata, on the 7th March 1714, in the acts of Notary Benedetto Vassallo, of which primogenitura he was the possessor. Beatrice in fact, in a public instrument bearing date 5th November 1734, and received by Notary Tomaso Gatt, availing herself of the power given her by the sovereign, named to the succession of the title of Barone di Gomerino, her son Ercole Martino Testaferrata and his legitimate and natural children and descendents and annexed the present title to the possession of the primogenitura, in the following terms:- “Cum hac tamen conditione, quod praedictus titulus Baroniae Gomerini, ut supra, praedicto Don ErculiMartino ejus filio, suisque filiis et descendentibus datus et relaxatus, sit et esse debeat, cunctis futuris temporibus et in perpetuum, adjunctus datus et concessus ili filio seu filiae et descendenti, qui vel quae consequutus vel consequuta fueritPrimogenituram fundatam per praedictos dominos jugales De Testaferrata, in quodam donationis instrumento rogato in actis quondam Magnifici Benedicti Vassalli, sub die septima Martii Millesimi Septingentesimi decimi quarti."
As the controversy between the two claimants may lead to litigation in our local courts, and as in our capacity of two of Her Majesty’s judges we may at some future time, be called upon to take cognizance of, and decide, the disputed claims of the aforesaid two gentlemen, we think it advisable not to express any opinion on their respective claims.
“Moreover, in order to deal properly with this question, it is necessary that the matter in dispute should be more or less minutely investigated before a Court of Judicature. It is for the foregoing reason that we did not ask the claimants to appear before us, to furnish necessary information. Consequently, in the list of titled gentlemen, which agreeably to the instructions we have received, will be appended to our present Report, no mention will be made of the claimants names; and in withholding our decision on their respective claims, we must add that the title of ‘Barone di Gomerino’ lawfully exists.”
It is unclear, at this stage, why the Commissioners excluded the possibility of any female being nominated to succeed to the title when the text cited by them allows for a succession by a female. Perhaps more remarkable is that elsewhere in their report the same Commissioners observed that at the time of the 1878 Commission, the primogenial descendent of Paolo and Beatrice Testaferrata was Alessandro Sceberras Testaferrata Damico Inguanezdescribed as “first-born descendent in the primogenial line of Paolo Testaferrata and Beatrice Cassia Baronessa diCastel Cicciano his wife, who by a deed of donation stipulated before notary Benedetto Vassallo, on the 8th February 1695, granted to Fabrizio Testaferrata their first-born son”.. (See:- “Correspondence and Report of the Commission appointed to enquire into the claims and grievances of the Maltese Nobility”, May 1878, presented to both Houses of Parliament by Command of Her Majesty (C.-2033.) (See Report Para. 106).
It appears, however that although the Commissioners actually acknowledged Alessandro Sceberras’s primogenialdescent from Paolo and Beatrice, they did not think this relevant in terms of the Gomerino grant.
Published sources show this title as having been conferred on Paolo and Beatrice with power given to them and their descendants of nominating a successor, and in failure of such nomination with automatic transmission to the first born descendant of the grantees. Moreover, the same published sources show succession to this title as commencing immediately after the death of Paolo Testaferrata, in favour of his eldest son Fabrizio Testaferrata who in turn nominated in 1744 his brother Ercole Martino from whom the claimants to this title descend. Unfortunately these publishes sources are incorrect.
What the published sources fail to mention is that Ercole Martino was invested in this title on the 1st May 1737 as Baron of Gomerino (National Library of Malta Collections. Archives of the Order Volume 541, f. 184-185) that is to say a full seven years before the published nomination by Fabrizio in favour of Ercole Martino.
The said investiture makes specific reference to the fact that it was being done in accordance with the 1710 grant and consequent to a deed made in the acts of Notary Thomaso Gatt of the 5th November 1734 (“Baronissa D. Beatrice ad hoc huoi Barones Titulum consequendum in actio Egregj Notarij Thoma Gatt miletenani, sub die v. novembris anni 1734, nominator, et electus, Nos, et Ordinem nostrum, sicut ). This implies that the grant of 1710 was affected by the terms of the 1734 deed. This deed found at the Archives of the Malta Notary to Government and Notarial Archives, in turn refers to a primogenitura founded on the 7th March 1714 by Paolo and Beatrice Tetaferrata in favour of Ercole Martino regarding certain properties. It appears that this would explain the Commissioners” ignoring the primogenial descent of said Alessandro Sceberras.
Nonetheless, this state of affairs poses a problem in determining succession from Paolo who was already dead by 1734. “Once the title was granted to both Paolo AND Beatrice, it would have been Fabritio’s right to succeed Paolo on the latter’s death. On the other hand, the surviving grantee Beatrice had made a deed with the younger son Ercole Martino. This deed would have been invalid had it not received the Sovereign’s sanction, it being a settled point of feudal law that titles of nobility cannot be alienated and conveyed to other persons by deed of transaction between private parties, and without the Sovereign’s sanction. Such sanction was, however, achieved in 1737.
It therefore follows that as at 1 May 1737, there were two valid Barons of Gomerino, one claiming under the 1710 grant, the other claiming under the 1737 investiture with reference to the 1734 and 1714 deeds. The same conclusion is arrived at when one considered that one barone was claiming under the joint grantee Paolo Testaferrata, whilst the other barone was claiming under the joint grantee Beatrice.
Thus Augusto Testaferrata Abela was validly claiming under the 1710 grant by a series of nominations commencing from Fabritio’s nomination made in 1744, whilst Pietro Paolo Testaferrata Abela Moroni was claiming under the 1734 grant by virtue of his primogenial descent from Ercole Martino. Both cases exclude Alessandro Sceberras from making any claim to the title(s) of Gomerino, therefore explaining why the Royal Commissioners did not think it fit to consider the latters position in regard to the title of 1710.
In any event and as predicted by the Commissioners, Augusto Testaferrata Abela (the plaintiff/attore) filed a court case against Pietro Paolo Testaferrata Abela Moroni (the defendant/convenuto), claiming that he was the rightful holder of the Gomerino title on the basis that he possessed the Gomerino property and that his rights stemmed from various nominations.
The Corte Civile di Sua Maesta Prim Aula 9 gennajo 1882 decided as follows (See Testaferrata Abela vs TestaferrataAbela Moroni (4 January 1882)):
1. That Paolo and Beatrice Testaferrata assigned the property of Gomerino to Fabrizio by means of a deed dated 1713 subjecting it to an earlier deed dated 1695 by which a primogenitura was set up in favour of Fabrizio con facolta di nominare trai figli maschi di ciascun possessore and that in 1714 the same parents set up a separate primogenituraof the lands Xbiex, Fauara and Landriet in favour of Ercole Martino. (The reference to the 1695 deed probably explains why the Royal Commissioners went on to say that no female may be nominated in this title.)
2. That the title of Gomerino was not annexed to the property of Gomerino: Che non fa quindi, che un manifesto errore quello di Francesco Testaferrata Abela, il quale, nell’atto di nomina dell’attore Augusto di lui fratello nel 1861, qualicava il titolo di Barone come annesso al giardino del Gomerino quello di Pietro Paolo Testaferrata, il quale, nell’attodi nomina del detto Francesco suo figlio nel 1829, qualicava nello stesso modo la concessione e, cio, che e piu strano, l’errore di Don Fabrizio Testaferrata, figlio primogenito diBeatrice, il quale nel suo testamento del 1744, fatto soli trentaquattro anni dopo che fu spedita la Bolla di concessione, aveva asserito, che sul giardino del Gomerino era imposto iltitolo baroniale.
3. That the investiture of 1737 did not tantamount o a change to the 1710 grant: Che il convenuto ha tentato di fare la prova che la condizione imposta da Beatrice nellanomina di Ercole sia stata approvata e confermata dall’ assenso Sovrano, il quale avrebbe sanata la nullita producendo copia di una Bolla del 1mo maggio 1737, a fol. 45, data del Gran Maestro Despuig, successore del Gran Maestro Perellos. Questo documento non e altro, che il solito atto di investitura, simile ad altri, che trovansi registrati nella Cancelleria, e che ogni nuovo titolato era obbligato di ottenere per mantenersi nel possesso del feudo. E siccome Ercole Martino succedeva nel titolo, non con dritto di primogenitor, ma come nominato dalla madre Beatrice, era necessario che si rendesse noto al Principe, l’atto di nomina, onde fosse attenuta da lui l’investitura; ma la menzione fatta nell’investitura delloatto del 5 novembre 1734, presso Notar Tommaso Gatt, non aveva altro oggetto che di dimostrare il titolo di dettoErcole, utpote a memorata Baronissa Beatrice ad hoc hujusmodi Baronis titulum consequendum nominatuset electus; Che e di regola, che l’allusione, che in un documento si fa ad un altro precedente, s’intende fatta per l’oggetto soltanto, per cui il primo sara emanato; e siccome la menzione del contratto in atti Gatt e stata fatta per dimostrare al Principe, che Ercole Martino era stato effettivamente nominato, e quindi intotolato all’investituraper il suo interesse personale soltanto; e non risultando che sia stata intenzione sua di chiedere ed ottenere la conferma e l’approvazzione della altra parti dell’ atto, la pretesa conferma del Sovrano manca di qualunque base
4. That there was no proof that Augusto Testaferrata Abela or his predecessors ever assented to the deed of 1734: Che daltronde non si e fatta alcuna prova, che l’attore e ilsuo nominante Francesco, benche’ eredi mediate di Beatrice abbiano mai approvato la condizione imposta dalla stess nel contratto del 1734
5. That the reckoning of eligible successors of the title is made not with reference to the possessor of such title, but with reference to the descent from the original grantees:Che nella parte principale della Bolla il titolo e’ accordato a Paolo e Beatrice, et uni ex omnibus et singulis eorumdem successoribus, de suis corporibus legittime et naturaliterdescendendentibus; e nella facolta’ di nominare ad ogni possessore in persona terza, tribuentes, vi si dice, unum ex dictis eorum descendentibus. Ora non essendosinella Bolla adoperato il prenome possessive suis, il quale si riferisce ad una persona, che appartiene al soggettodel verbo, ma il dimostrativo eorum, il quale non si puo’ riferire al detto soggetto, perche in tale caso si sarebbedetto unum ex descendentibus suis, necessariamente il vocabole descendentibus dovra ritenersi ad altrepersone, che non potevano essere, che i primi acquirenti.
6. That the nomination of Augusto Testaferrata Abela stemming from Fabrizio Testaferrata was valid: Chenon e’ diffettosa la nomina nel titolo, per parte di Pietro Paolo Testaferrata e di Francesco, perche’ nella stessa si e’ ritenuto essere il detto titolo annesso al giardino del Gomerino, e la nomina e’ stata fatta nel giardino coll’annessovi titolo baronale, siccome risulta bastantamente della intenzione dei detti Pietro Paolo e Francesco di nominare la stessa persona, e nel possesso del Giardino, e nel titolo; molto piu’ che questa era la volonta’ di Fabrizio Testaferrata, primogenito di Paolo e Beatrice, espressa nel di lui testamento del 12 agosto 1744, nelquale diceva che anche questa era la volonta’ dei detti di lui genitori, primi acquirenti del titolo
7. In conclusion, the court decided that: Che premessi i motivi nella presente enunciate, ne consegue che Pietro Paolo Testaferrata, il quale posssedeva insieme e la primogenitura, fondata da Beatrice di lui ascendente, ed insieme il titolo di Barone del Gomerino, accordato dal Principe alla detta Beatrice, poteva legittimamente, come ha fatto,nominare nell primogenitura l’unico figlio di secondo matrimonio, Giuseppe, padre del convenuto, e nel titolo uno dei figli di terzo letto, Francesco, e che questi poteva nominarel’attore, di lui fratello, per le facolta accordate dal Sovrano nell’atto di concessione del titolo, nonostante il possesso del titolo dal possesso della primogenitura
Although this judgment clarified the above issues, it did not consider what the position was during the seven year period 1737-1744 when there were 2 barones, namely a barone of Gomerino (Fabrizio) and a barone who was invested pursuant to the Testaferrata Primogenitura of 1714 (Ercole Martino).
Moreover, if Ercole Martino was already invested in 1737, there was no need for his brother to nominate him in 1744. It is therefore strange why Mr. Justice Filippo Pullicino justified the nominations leading to Augusto with reference to Fabrizio’s will of 1744 when the court was aware that said Ercole Martino was already in possession of the title. This consideration appears to permit the possessor of the latter primogenitura to stake a valid claim to a title of barone being distinct from that granted in 1710.
In any event, the outcome of the said judgment concerns the validity of the nominations leading up to the plaintiff. It cannot be said that the judgment has any bearing on the general remainder of the (main) title granted in 1710.
Today it is no longer possible to effect any nomination. In the Gieh ir-Repubblika Act (ACT XXIX of 1975), the lawdictates that it is “the duty of every public officer or authority, and of every body established or recognised by law and of every member thereof, to refrain from recognising in any way, and from doing anything which could imply recognition of, any title of nobility”. A similar duty is imposed in regard to other foreign honours which have not obtained approval by the local authorities. By reason of this ACT, it is therefore legally impossible (an offence?) for any notary to receive an instrument by which somebody can be “nominated” to succeed a title simply because such nomination would be made contrary to law. It therefore reasonable to assert that it is impossible for any “possessor” of the aforesaid title to make use of the faculty to nominate a successor.
It follows that one may disregard any “nomination” purportedly made at any time after 1975, and instead follow the general remainder of the grant.
According to the Code de Rohan of 1783, a primogeniture is a regular individual entail consisting of chattels which devolved from first-born to first-born in the descendental line. It can pass on to collaterals, the determining criteria operating in the following order: line (the first line excluding all the others), degree (the closer degree of relationship excluding the remoter) sex (the male sex being preferred to the female), and age (the elder being preferred to the younger). Accordingly, it follows that regardless of any nominations that may have been made in the meantime, in terms of the grant made out to Paolo Testaferrata and Beatrice Testaferrata, any succession happening after 1975 should be reckoned in accordance with primogeniture. However, given the complexities of the 1734 investiture, it is unclear at this stage the primogenial descendant is that person descending as the primogenial descendant from the original grantees or the barone who holds the Testaferrata 1714 primogenitura.