Question IV: Whether an heir instituted in a testament invalid at civil law through defect of solemnity can take the inheritance in the forum of conscience, despoiling the heir who succeeds on intestacy

THE first opinion is that the will of the testator is to be executed, and consequently that the heir, though invalid by civil law, can in conscience take possession of the inheritance. So Innoc. in cap. sicut de elect. and in cap. celebrata de cler. excom. Abbas in cap. Quae plerique, de immun. Eccl. Iason. in l. Nemo potest, de legatis, where it is had expressly from c. ultima voluntas, 13. quaest. 2. deduced from the Decretals of D. Gregory Pope there: The last will of the deceased ought to be preserved in every way. Which the Doctors understand of testaments of this kind. So also Bartholus in Minor. l. 1. cap. 3. ad l. Nemo potest, ff. de legatis 1. and other Jurists, as in Couar. in cap. cum esses, de testam. Fagundium de contr. l. 6. cap. 7. Sotus l. 4. de iust. quaest. 5. art. 3. Medin. de rebus restituat. quaest. 23. Adrian. quodl. 6. Molina T. 1. de iust. disp. 81. Less. l. 2. cap. 19. dub. 3. Sylvest. v. haered. quaest. 7. Reginald. l. 25. num. 105. Bassaeus v. Haeres.

THE NEGATIVE, on the contrary, is upheld by Cevallos l. 2. contr. com. quaest. 71. Bald. in l. 1. num. 55. C. de Sacros. Eccles. Couar. in cap. cum esses de testam. de Gomez in l. 3. Tauri, num. 121. Spino in speculo testam. gloss. 8. Cenedo 2. p. collect. 67. ad Decretal. Menchaca de success. creat. §. 2. Gutierrez l. 2. qq. Canonic. cap. 5. Cervant in l. 3. Tauri, num. 189. Ledesm. 2. 4. quaest. 18. art. 1. dub. 12. Victoria 2. 2. de restitut. initio, Sotus l. 4. de iust. quaest. 5. art. 3.

THESE, however, are divided; for Sotus, Victoria, and others in Couar. hold that the civil laws concede to the successor ab intestato restitution in the external forum, and retention in the internal, not the translation of dominion to him, but to prevent its being transferred. Others, however, concede even this, with whom subscribe Malderus, Salas, Becanus, Vasquez, Bonacina, and others, as in Diana p. 1. tract. 8. resol. 75.

THIS seems to be the opinion of D. Bonav. in 2. dist. 44. art. 2. et 3. and in 4. dist. 18. D. Thom. 1. 2. quaest. 62. art. 4. and of as many as assert that the laws of Princes oblige also in the forum of the pole, whom I cited in tract. de Legibus, disp. 5. quaest. 1. et 2.

THIS grave decision is extended to all civil contracts, so that those who are void by civil law are such also in the forum of conscience.

MANY, however, follow a middle way, that if the will of the testator be fully established, the heir instituted in a less solemn testament can retain the inheritance. This common opinion Fagund. strengthens num. 6. with Couar. ad cap. cum esses, de testam. and with the authors of the first opinion they bring forward others.

THEY SAY second, that if the heir ab intestato reasonably opine, or doubt, that some fraud has been introduced into that testament, he can justly act for its rescission; Fagund. agrees num. 12. with many in Couar. loc. cit.

I ASSERT with the second opinion that it is probable that the Heir ab intestato can rescind a testament in which another is instituted without solemnity, and that in the meantime the inheritance cannot safely be taken possession of by one so instituted.

IT IS PROVED first: The laws of Princes, being just, oblige in the forum of the pole; but the Laws decree that heirs instituted without solemnity are excluded, l. hac consultissima, Cod. de testam. and Instit. Quibus modis testamenta infirmentur, §. penult. and these are received throughout the whole world, as just, and most gravely necessary for the public good, lest the resources of the dying be squandered by frauds: Therefore. The major is broadly demonstrated in l. c. de Legibus.

IT IS PROVED second from other laws which so dispose, and void in order to avoid frauds, nor do they lack effect even with the fraud removed, as in the alienation of pupils, etc., which therefore is null also in the forum of conscience.

I ASSERT second. If the will of the testator be rightly established in the forum of conscience, the heir can safely in conscience take possession of the inheritance. This is D. Bonaventure's, as I shall show.

IT IS PROVED first. The laws of Princes are just, and oblige in conscience, which are consonant with the law of nature, and much more if they are thus interpreted by the Legislator: But it is of the law of nature that inheritances be of those to whom the legitimate owners justly leave them, and to this sense even the civil laws come: Therefore. The major is evident, from what was said de Legibus, disp. 1. quaest. 4. and disp. 2. quaest. 6. The minor is shown from both Laws, the Canonical, and the CIVIL.

And indeed Pope Innocent in cap. quod sicut, and in C. quia propter, de elect. thus decrees: If any election be valid by the law of nature and of nations, even though the solemnities required by civil or canon law be lacking, it is valid in the forum of the pole, because the solemnities of positive law were invented only to avoid frauds, and in the forum of conscience natural truth is to be preferred. But this is consonant with the law of nature, that the transmission of inheritances be taken from the will of the Lord: it is proved in the Institution de rerum divis. §. per traditionem; where it is said: Nothing is so conformable to natural equity as that the will of the owner, willing to transfer his thing to another, be held valid.

THAT the civil laws themselves thus unfold in the forum of the soul is proved from Authent. de nuptiis, §. disponat. collat. 4. where it is related that the last will of the deceased is to be preserved as law. And in C. ultima voluntas, causa 13. quaest. 2. these words are had: The last will of the deceased ought to be preserved in every way. But more formal is the text in leg. inutiliter, Cod. de fideicommiss. where, when the Emperor had said that in a less solemn testament a fideicommissum left is uselessly left, namely that for exacting it no action be granted in a judicial forum, he adds: If the heirs, having discovered the will of the deceased, had performed it, it cannot thereafter be reclaimed. The Emperor gives the reason, Because satisfaction seems to have been made to the will of the deceased not from the writing alone, but from the conscience of the fideicommissum left. It is confirmed by the consensus of Jurists saying that a less solemn testament has such force that the legacies left in it can not only be possessed in the forum of conscience by a legatee in possession, but be defended in a judicial forum by a legitimate exception: so Bartol. ad leg. Nemo potest, ff. de legatis, and others, as is clear from Gamma decis. 347. and Claro §. Testamentum quaest. 90.

If they say that this text proceeds concerning legates, and fideicommissa, not concerning heirs.

I say that it is commonly conceded concerning these also by Jurists and Theologians, as we have seen.

Hence I argue a fortiori from D. Bonav. Laws are to be kept from conscience the more gravely, the graver are the things commanded: But the laws yield to the last will in conscience, that last wills be fulfilled, interpreting the legacies, etc.; therefore much more as regards inheritances. For these are much graver, and it would be much more grave and hard for the testator to see the inheritance distraught, against his will, than a legacy. Therefore by the instinct of nature no one, even of timid conscience, will wish to restore the inheritance conferred on him by a testator, even if less solemnly.

Therefore from the observance of the laws, enjoined on us in the forum of conscience according to the mind of the Legislators, it is brought out that the SS. Doctors are for the first opinion, not for the second, as Fagund. thinks num. 3. nay, that they agree with the third.

From what has been said for the second assertion the response to the arguments of the first is clear: For laws are to be interpreted, and observed with great wisdom, discretion, and spirit; for so they are enjoined by God and the Apostles for the good of the Republic, for justice, and peace, and therefore the rectitude of nature is to be kept, as also justice, etc., as the S. Doct. de Eccles. Hierar. p. 2. cap. 3. discusses.