Question V: In what ways legacies lapse, so that the heir is not bound to pay them

THESE things are understood of profane bequests, not of Pious ones, which are never caducous, as is clear from what has been said: and as D. Bonaventure cited teaches, quaest. 2, saying that if a bequest is repudiated by one of the poor who are left, it is to be given to another.

In MANY ways, however, it happens that the Heir is free from the payment of a bequest; the chief are sought from its invalidity, from its tacit or express revocation made by the testator, from the perishing of the thing without the Heir's fault; also from the repudiation of the legatee himself.

INVALIDITY can arise by reason of the manner in which the bequest is made, and by reason of the person to whom it is left: in the first way it is invalid, if the solemnities of the Law have been omitted, if dominion of the bequeathed thing is lacking in the testator, as has been said, if finally he has named the matter in the supreme or subalternate genus (as I may speak dialectically): otherwise, if in the lowest species; wherefore a bequest of Being, or of Animal, will be judged illusory; not so if an ox or a horse is bequeathed. So §. si generaliter, institut. de legat., and then, according to the more common opinion, the heir is bound to give according to the option of the legatee; for in the same §. it is had: If a slave, or any other thing, is bequeathed generally, the choice is the legatee's, unless the testator has said otherwise.

In the SECOND way it is invalid, if it is made to an incapable person; as if the testator erred concerning its substance, or it does not yet exist in the nature of things.

That a bequest fails even when the final cause fails, or the condition attached to it, has been said above.

REVOCATION also invalidates a bequest. For since the bequeathed thing is under the dominion of the one bequeathing while he lives, he can alienate it at his pleasure; wherefore, as it is left by his will, so it is taken away by a contrary will; for things are dissolved by the same causes by which they are born, as is said in the Rules of Law in 6. Nevertheless it falls to the heir to prove the revocation, otherwise in doubt favor must be given to the legatee, since he is in possession of the fact. For what clearly stands to have been done, but it is doubted whether it has been revoked, is judged in favor of the one to whom it is made, until the opposite is juridically proved, leg. 3. §. si duobus, ff. de adimend. legat.

I SAID a bequest is revoked tacitly or expressly; because the nature of each is the same; wherefore if, after the bequest is signed, enmity springs up between the Legator and the Legatee, the bequest will be presumed to have been tacitly revoked, since ordinarily no one is wont to do good to an enemy hostile to himself; yet the Judge ought to use much circumspection in considering this. See leg. nec adiecit, ff. pro socio.

ITEM, a bequest of some definite thing which the testator voluntarily alienated otherwise, sold, or gave to another, is judged tacitly revoked; leg. rem Legatam, and leg. Legatum, ff. de adimend. legat. And this is true a fortiori if it was done in favor of the Legatee himself; for then the payment will be judged anticipated.

But if a debt of his own is left to the Legatee, and afterwards it is exacted and consumed, it is judged revoked; truly, if the debt was exacted that it might be kept more securely and laid up, it must be paid: see Mantica, Molfesius, Mascardus, and Gratianus, whom Bonacina reports cit. §. 8.

Say the same of any consumptible thing, which, after it is bequeathed, is converted by the Legator to his own uses; the heir will not be bound to pay for that thing, unless the testator has reckoned another like thing in its place, or ignorantly consumed the former. So Bartolus, Baldus, and commonly the rest.

The third cause, on account of which the Heir is exempted from paying the bequest, is the loss of the thing: for if the thing is determined, and has perished without the fault of the heir, it perishes for the legatee; because the thing perishes for its own lord, leg. pignus, Cod. de pignorata actione, but by the death of the Testator the dominion is transferred to the Legatee.

I said: if the thing be determined; for if it is only in the genus, its dominion is not acquired otherwise than by delivery, wherefore, having perished, it perishes for the heir.

A question, however, is disputed, whether, if two things are bequeathed at once, and one perishes without the fault of the heir, the other must be restored: the common opinion holds that the surviving thing must be paid; because the useful is not vitiated by the useless: whence, with an ox and a calf bequeathed, the one having died, the other must be restored; indeed, with a whole herd or flock bequeathed, what remains must be paid: so leg. grege Legato, ff. de legatis, 1.

Nor does it tell against this, that a flock is bequeathed; but one sheep does not make a flock. For although a flock cannot be constituted in one sheep, nevertheless the denomination of a flock can be preserved in one surviving from many. Bonacina brings an example above: for although the inhabitation of one man does not suffice to constitute a college, yet after it has been constituted from several, and the rest have died down to one, the college is preserved in that one, leg. Sicut, §. finali; ff. quod cuiusque universitatis, from which Law it is gathered that more things are required for the constitution of something than for its conservation.

Nor likewise does it stand in the way that the usufruct of the flock would perish in one alone; whence if the usufruct of a whole flock had been left to someone, with one sheep alone remaining, the heir would not be bound to pay anything. This, I say, does not stand in the way, because the law decreed that of the usufruct specifically, as must be seen, leg. fin. quibus modis ususfruct.; but what is decreed in one case is badly drawn to another, where the like reason is wanting. The reason, however, why it was so enacted in the law is sought from the small utility of the usufruct which is received from one sheep; which reason ceases in our case. So Bonacina notes §. 8. citat.

The fourth cause of invalidating a bequest is the repudiation of the Legatee himself, since every bequest has tacitly that condition, if it be accepted: whence, not being accepted, it accrues to the heir, and this is true even if he wishes to accept part of the bequest and repudiate the rest, because it is enacted, leg. Legatarius, ff. de legat. 2., that the Legatee cannot repudiate in part and accept in part the same thing; yet his heirs, however, can do otherwise: the reason is, because the will of the testator was to bequeath the whole thing, to which the will of the Legatee ought to correspond by accepting the whole; yet since the will of his heirs can be manifold, each of them can reject or receive the part falling to him; for this the testator is judged to have willed to will.

If, however, manifold, or disparate, things have been left, even in one codicil or testament, it will lie with the Legatee to have the option of repudiating or accepting for the whole, or in part; but this again must be limited: for if the things are so diverse that a burden is annexed to one, but by no means to the other, the Legatee will not be able to repudiate the onerous thing, taking up the other which has no burden: for the testator is presumed to have left the whole bequest in respect of the burden, wherefore it will not be fair that his will be frustrated.

Some other things remain to be said concerning bequests, namely, when and in what order they are to be paid; what the heir can retain for himself from these; whether things left for one use can be converted to another, and the like, which are treated abundantly, though they are almost of no weight, in Bonacina de Contractibus quaest. 17., Vasquez, Opusculo de testamentis, and others cited by them.

Here therefore it may suffice to say: a bequest left absolutely, which no condition suspends, is to be paid immediately after the death of the Testator; truly, if debts concur at the same time with the bequests, these must be paid first, in that order which we intimated above in treating of restitution. Say the same of real vows, to which the testator was bound; for these are to be preferred before bequests; but when several legatees concur for several bequests, all are to be paid at a ratable rate. See Sanchez in Summa lib. 4. cap. 15. num. 39.

As to the commutation of bequests, it can be made for a reasonable cause, at the same time with the authority of a superior intervening; the legitimate superior, moreover, in pious bequests is the Bishop of the place; in profane ones, however, the Prince, who acknowledges no other superior to himself in his kingdom.

Finally, as to what can be deducted from bequests by the heirs, this must be known: that necessary Heirs, to whom the inheritance has come ab intestato, can retain their legitimate part, whether the goods of the testator suffice for paying the bequests or not. But unnecessary heirs, to whom no legitimate part is owed, can deduct from each bequest a fourth part at a ratable rate, which is called the Falcidian portion; the rest is clear from what has been said above concerning the Testament; see the cited authors.