Question IV: What a pious, or privileged, legacy is

A PIOUS bequest is that which is judged made in respect of piety, and which in very fact contains something for a pious use. The laws have fortified this bequest with various privileges; for it was fitting that the piety of the testator not be so entangled with forensic litigations that it would not the sooner and more certainly have its effect; therefore we name this bequest Privileged, being exempt from the ambages and conditions required for profane bequests; but of this a little below.

IN the first place, however, care must be taken of the testator about to bequeath, that he be conscious of no mortal sin, lest that pious action, done outside grace, profit others only, not himself: for the state of grace is necessary for the merit of piety, outside which, whatever is done will be reckoned as no act, being dead, as we discussed in treating of Grace.

If, however, being conscious of a mortal fault he has confirmed such his will in a last instrument, and afterwards has obtained grace by repenting, the best counsel will be to ratify his bequest anew, which will be equivalent to its first institution as to merit; for as he could revoke it up to death, so he can approve it anew. So warns Bonacina cited above §. 2. propos. 2., with others related by him: these things, however, are to be understood in order to the legator himself.

AS TO pious bequests in order to the persons to whom they are made, it must be asserted that whatever is left in honor of God or the Saints; whatever also is bequeathed for the salvation of one's own soul, for the poor, widows, orphans, pilgrims, Monasteries of Mendicants, hospitals, and Churches, breathes this piety; so commonly all.

NOR is it necessary that the poor, of whatever sort they be, be so needy that they are compelled to beg from door to door; but it suffices that there not be available to them that from which they can live according to the exigency of their station; whether to pay their debts or to procure other necessaries; as the holy Doctor notes in the Apologeticum of the Order of Minors, quaest. 9.

But if this bequest left to them is specified for their aliments, and afterwards they, or some of them, have attained a more fortunate state or fortune, it will no longer be owed to them, since the final cause ceasing, those things cease which are ordained to it; if, however, they afterwards fall back into their former indigence, the bequest will return with its cause to be paid to them. So Surdus, De Alimentis, quaestione 7, numero 38, and others.

By some, that which is left to virgins to be married, or to be made fit for the state of religion, is also reduced to a pious bequest; provided that it not be owed to them under another title of justice. Likewise that which is destined for the repair of fountains, roads, bridges, and the like; likewise that which is bequeathed for painting the images of Saints, or for promoting the uses of studies: these things, however, we shall not willingly admit among pious bequests, unless it be established that they were made in respect of poverty or piety: since not rarely these and the like are wont to be carried out on account of other motives.

HENCE one can discern what kind of bequest is that made to a poor kinsman; for often not poverty but, on the contrary, kinship prevails in the affection of the testator; wherefore, to discern this, the chief rule is, whether in his testament he first named the poor man or the kinsman. For if the poor man is first mentioned, the bequest is judged pious, to which two conditions are always required: the first is piety in the person to whom it is made: the second is piety in the person, or in the motive, by which it is made. For if a bequest is made to a rich man, it will not be judged pious, since in him is not that piety founded in poverty: let the same judgment be, if it is made to a poor man, but not in respect of poverty.

FINALLY, bequests made to Confraternities to be erected with Pontifical authority, for withdrawing sinners from an evil state, for burying the dead, and for celebrating Masses, are reckoned among things piously left by the Doctors, as is seen in Bonacina cited. All which the Confessor and the penitent must take note of on account of the reserved case, which is incurred in many places on account of the deferral of the payment of a pious bequest beyond two years; which reservation is observed at Milan, by the report of Bonacina above. Nor does it stand in the way that sometimes pious bequests are made to Mendicants, who are capable of dominion; for although they cannot vindicate the dominion of the bequeathed thing, nevertheless the executors of testaments are bound to convert it to their use. So D. Bonaventure cited.

Nor does it follow that a definite thing bequeathed is meanwhile in the goods of no one. For it is in the goods of the heir, to be expended, not to be reserved, as the holy Doctor cited says expressly.

CONCERNING the privileges of a pious bequest, this must be known: that the Falcidian portion, or the Trebellianica, usually deducted from a profane bequest, has no place here; because it is a disposition of the civil law, to which a pious cause is not subject. So Tiraquell. privileg. 26, Tuscus verb. legata, conclus. 111, and all the rest.

SECOND, it can always be sustained by whatever means it can stand; and if it cannot accrue to one cause, it is applicable to another; so the aforesaid, Tiraquell. privil. 33, and Tuscus, concl. 109, after D. Bonaventure in Reg. Min. cap. 4.

THIRD, all the solemnities of the civil law are driven away from this, on account of the reason already given; whence the various conditions of witnesses, as of the testator, are not required in so many dispositions; wherefore it is all the same, whether the witnesses are requested or not; whether men or women; more or fewer; whether the testator be blind, mute, and Deaf or not, wholly testate or in part, capable of profane bequests or not; and it suffices that he have sufficiently expressed himself by naming the heir or legatee loftily. So it stands from Bonacina and others whom he cites. There can be added to the privileges of a pious bequest, that if it is left indefinitely, or in perpetuum, it is not prescribed with any term of time prefixed, as Alexander VII defined for a bequest left annually pro anima, as we saw in treating of Human Acts, disput. 17, quaest. 10, sect. 41.