Question I: What a legacy is, and of how many kinds

A bequest (Legatum) is defined as: A kind of donation left by a testator and to be furnished by the heir. So all the Jurists, in leg. legatum est, ff. de legat. 1. et 2.

It is called a Donation, because it is left not by any right of kinship but out of sheer liberality; for the testator has, up to the very last instant of his life, full power over his goods, so that it is lawful for him to bequeath and legate them at his pleasure. It is called to be furnished by the heir, for the reason adduced above in the last question.

The bequest is divided first into pious and profane, as is gathered from the cited Holy Doctor.

Second, the bequest is divided into universal and particular; the former rarely occurs, since it is of all one's goods, and is called a universal fideicommissum: the particular, however, is in common use, when the heir is compelled to hand over some definite thing.

Then it is divided into absolute and conditional. The former occurs when something is left without any determination, which must be restored to the legatee without delay after the death of the testator. The latter is made thus, with a condition added: I bequeath to Paul fifty gold pieces, if a son is born to him, and this must be fulfilled upon the condition's occurring. Now this condition varies with the variety of the object, or of the manner in which it is attached: it is sometimes tacit or express; possible or impossible; necessary or contingent; finally, honorable or shameful; likewise it is sometimes signified of the past, at times of the present and future.

Concerning these conditions the laws thus decree, and the Doctors so judge: that a contingent condition about the future, possible and honorable, suspends the bequest until it is purified; conditions about the present and past annul or bind the bequest in the very instant, since such conditions are necessarily actually true or false; but an impossible condition, or a necessary and shameful one, is considered as not attached. So Vasquez, De testamentis, cap. 8.

In every bequest, moreover, there is understood tacitly: if the inheritance be entered into, by the common law, although the royal law has decreed otherwise: there is also a tacit condition underlying an annual bequest, which is understood to have been left for as many years as the legatee shall live; so that nothing passes to his heirs.

But that slender distinction which exists between a conditional and a modal bequest so torments the Jurists that they plainly do not know: if a girl's dowry is left, ut nubat (that she may marry), does it import a condition, or rather a mode?

Baldus, Covarru., Peregrinus, and Simon, on these points in Bonacina loc. cit. prop. 3., hold that the bequest is modal, and therefore that its payment is not to be deferred, at least if it is made by the parents; wherefore, they say, the girl can compel her brother to make the payment even before she is of marriageable age.

On the contrary, Bart. Gomez, Mantica, Molfesius, and others cited in the same place proclaim it to be conditional, and accordingly that one must wait until the girl is ripe for a husband; in the meantime, however, they teach that the brother is bound to nourish her and supply other things according to the decency of her station, since he succeeds to the father's place.

The whole difficulty lies in those little words Si (if) and Ut (that): for if something is bequeathed to a girl, si nubat (if she marries), it is certain that it is a condition; but if, ut nubat (that she may marry), who does not know that the final cause of the bequest is denoted? and thus it is owed to her even before she marries a husband, and even if she should never marry, provided only that it did not lie with her that she did not join herself to a husband; the reason is, because when a condition is rendered impossible for the legatee without his fault, it is considered as not attached.

Hence Vasquez, in Bonacina, ubi supra, infers that a bequest left to Berta, that she may marry Titius, ought still to be restored to Berta when Titius has died, in case she wishes to marry another. From this one may infer that when something is bequeathed with the burden of a certain action, there is contained in it a tacit condition, if the legatee should wish to undertake such an action; for if he should not wish it, the bequest must be denied to him: whence the dowry bequeathed to Berta, that she may marry, must be handed over immediately after the death of the testator, if she wishes to marry; yet with a caution given; but if she should altogether refuse to marry, the cause and final motive ceasing, the effect will safely cease. Now the decision of this difficulty is of no small consequence, that it may become clear whether a dowry thus left, and not handed over before the death of the girl, is to be transferred to her nearest heirs, or whether rather the heir of the testator himself has a right in it.