Question II: Whether legacies ought to be paid to all those for whom they are made, and how

SInce the will of the testator is immovable after death, as S. Bonaventure, on the Rule of the Friars Minor, cap. 4. letter B. says, the general rule of all justices is that bequests must be paid to all those persons who are capable of goods. But in order that these may be discerned, it must be noted that the laws declare the liberty of certain persons to be so proscribed that they can have dominion over nothing: and in the first place manifest heretics, where the Holy Inquisition holds dominion, can possess nothing, since their goods are adjudged to the fisc; wherefore bequests made to them, as also to apostates, are invalid by the law itself, as is had in Leg. Manichaeos, C. de haereticis.

ITEM, bequests left to uncertain persons do not stand: §. incertis, instit. de legatis. Yet conceive this thus, if they are altogether uncertain, since nothing can be rendered to those who are known to us in no way. But if there is present, or soon to be present, some ground for discerning such persons, a bequest can validly be made to them: as if one should bequeath in favor of the one who has married his granddaughter or daughter, such a bequest will stand, and it must be rendered to the granddaughter or daughter already wed.

From this rule are excepted bequests made to God, if anyone should so express his will, because God is not reckoned among uncertain persons; and the civil law cannot extend its exceptions to pious causes; wherefore such a bequest will have to be furnished to the greater Church of that place in which it was made, as is noted §. si quis in nomine magni Dei, Anthem. de Eccles. The same is to be understood of bequests to pious causes universally, since the civil law holds no authority over them; and if they are made to Churches, this is to be understood of the Church of the place, and where several Churches concur, of the greater Church; if all are equal, it is to be given to the Bishop, that he may distribute it among all according to his prudence. So Bonacina with others cited by him above.

It is DOUBTED among the Jurists, indeed, whether a bequest left to the poor must be given to the poor of the place, or whether it suffices that it be given to others. Some adjudicate it to those who are held in need in the homeland of the legator, argument. leg. si quis ad declinando, §. ubi autem; for the testator is judged to be more affectioned toward them than toward strangers: nevertheless, Bonacina holds as more probable that satisfaction is made to whatever poor it is given; since the last will is to be believed to burn with a more common piety than with particular affection, and that is sufficiently fulfilled in any needy persons whatsoever.

WHEN, however, a bequest is left to Canons, it must not be drawn to their Church but to the whole chapter, which is something other than the Church; and then it must be divided among all in geometric proportion, according to the grade and dignity of each; but if the bequest is to individual Canons: then it is to be distributed equally, or arithmetically, among the individuals. But if it is bequeathed to one alone, let it be handed over to this one, not another, out of reverence and observance of the last will. Bonacina notes this very aptly above, citing Mantica, Covarruvias, Genuensis, Vasquez, and others.

IN any bequest, however, in which a doubt arises concerning the persons to whom it must be paid, the intention of the legator must be attended to above all, and the simple signification of the words; and these failing, pious causes are more to be favored. Hence you have several resolved cases.

FIRST, a bequest left in general to women to be married cannot be dispensed to girls not yet marriageable; for in them it is presumed that the will of the testator is not being fulfilled. So Mantica de coniect. ultima vol. lib. 21. tit. 21. num. 5., Sanchez de matrimonio, num. 7. disp. 91., and several others in Bonacina above.

SECOND, a dowry bequeathed to a girl, if she marry, is nevertheless to be handed over to one wishing to enter religion; so all commonly; say the same of a bequest made to a widow, as long as she leads a widowed life, which she can also lead more honorably in religion. So Sanchez cited above.

There is a DIFFICULTY, however, about a bequest made to a widow on this condition, that she always dwell with her sons, and she wishes to fly to second nuptials, the sons refusing to dwell together with the father-in-law.

There is a TWOFOLD opinion of the Doctors on this matter. The first is that of Baldus leg. 1. Cod. ubi pupilli, etc. and leg. 1. at the end, Cod. de leg., Iason. in the same place, and of not a few others, whom Sanchez reports and embraces ubi supra: that such a bequest becomes void, because a tacit condition must be presumed to be in it, that she not pass to second nuptials; and besides, the sons can plead a just motive of fear; as if a wife should bequeath to a husband on a like condition, and he should take a stepmother to his children, without doubt the children would have just cause to withdraw from her, since she is wont to conduct herself more harshly.

The SECOND opinion is Bonacina's, citing Bartolus, Imola, in leg. cum tale, num. 2. ff. de condit. et demonstr. and others, who say that such a bequest must be paid even to one flying to second nuptials and wishing to dwell with the sons of the former husband: the reason is, because the bequest is owed to one willing, though not able, to attach a condition; nor is that cohabitation so suspect, since it is customary; but if the sons wish to reject her, it is their fault, which must not bring prejudice to the legatee.

I WOULD SAY, however, in conscience, that such a bequest is not owed, if either the mother herself or the sons' tutors had noticed that such a dwelling would be harmful on the part of the father-in-law, and the mother, once admonished, refused to acquiesce; for thus she herself is judged to remove the condition, and she is at fault.

THIRD, a bequest given to a future wife in general, before the testator has been married, can be paid to the second wife, since out of affection for the wife surviving him he is presumed to have so bequeathed. But if he makes the bequest already married, it is presumed to be for the first, and the second is excluded, even though she enjoy it under the same name with the first, because the husband's affection must be judged to have regarded only the former. So Barbosa leg. divortio, §. 8. ff. soluto matrim., Menoch. lib. 4. praesumptione 122., and Sanchez supra numero 59.

FOURTH, a conditional bequest made, that there be no passage to second nuptials, must be paid, even if nuptials, but invalid ones, have followed. The reason for this is sought from the rule non praestat, de regul. iuris in 6., because an impediment does not avail which obtains no effect by law. So Gutierrez capite III. numero 7., Sanchez citat., who add, with Sylvester verbo sponsalia, quaestione 1. dicto 2., that such nuptials, even valid ones but not consummated on account of some unforeseen event, do not invalidate the bequest; because in penal, or odious, matter, by the name of nuptials a consummated marriage is understood.

IN all these cases it must be considered that the legatee ought to receive whatever is left to him from the hand of the heir, not by his own authority; otherwise he will be guilty of Commissum, that is, he will suffer the loss of the bequest; understand this, however, after the heir has entered upon the inheritance; and this penalty is inflicted by the law, that time may be given for the Falcidian portion to be deducted; whence it is clear that pious bequests, not subject to the Falcidian portion, do not undergo this penalty; see Bonacin. de contract. puncto 8. dub. 3.

But if the heir should be contumacious in paying the bequest, a threefold action lies for the legatee against him: the first is Personal; for since the heir has contracted the debts of the deceased testator, he is judged to obligate himself and his goods to paying them, leg. 2. Cod. communia de leg. Yet if he is not an heir by testament but by another title, that action will cease, and the Praetorian action will succeed. The second action is named Hypothecary, by which the thing of a definite species remains hypothecated to the legatee; or even all the heir's goods, if the thing bequeathed is only of a definite quantity; so it has been decreed by said law. The third action is for the very thing itself, that it be vindicated, whose dominion, since it has been transferred from the day of the testator's death, can be vindicated from whomever possesses it; whence the legatee can seek the aid of the Judge, or bring the interdict Salvianum for the thing; see Bonacina and the Doctors cited by him puncto 8. §. 4. toward the end.

A GREAT difficulty there is, and it is the seedbed of many litigations, when the same thing is bequeathed jointly to several, to whom then must it be rendered: that this may be resolved more clearly:

It must be NOTED first, from the disposition of the laws, that there is given in bequests the Ius accrescendi (right of accrual) and the Ius non decrescendi (right of non-diminution). The former is a kind of right by which one, by reason of his conjunction with another, obtains that other's vacant part: for if the same thing is left to two, and one wishes to repudiate it, but the other to claim it, the whole title will be of this latter, because he was conjoined with the former, whence the thing repudiated by the latter must accrue to him. But the Ius non decrescendi is that by which some failing thing comes to someone not by his own right but by another's: under this right, if one canon is absent from the choir, the one assisting will be able to claim his distributions for himself.

It must be NOTED second, that some can be conjoined in a threefold way: by the thing only; by the words only; and by the thing and words at once.

The FIRST conjunction occurs when one thing is left to two under a diverse formula of words; and then it is bequeathed in solidum to both, whether by testament to one and by codicil to the other, or by both at once: wherefore, one repudiating, or being unable to recover anything, the whole is acquired by the other.

The SECOND conjunction is made in a twofold way. First, if the same thing is left to two distributively in the same words, as if it were said: my estate at Lyons in parts, portions I leave to Peter and Paul: if one should reject this estate, the other can receive the whole by the right of accrual; for although it was not bequeathed in solidum to both, nevertheless the law decrees unica, §. his ita, C. de caduc. toll., that since the parts are only divided in the mind, not designated to the eye, each, the other failing, obtains the other's part.

SECOND, it occurs when diverse things are not bequeathed in diverse words, as when it is said: my house at Bergamo to Titius, and my house at Lyons to Caius I leave: here there is no right of accrual, although the conjunctive particle and makes the same context of speech, because the things are utterly diverse.

The THIRD conjunction then occurs, when in the same last instrument the same thing is left to several in one context of words, without any division of parts; for example, my field at Bergamo I bequeath to Titius, and the same I bequeath to Paul. This conjunction is the most commodious of all, and by the law of accrual it prevails over the rest: but if conjunctio re tantum (by the thing only) and conjunctio verbis tantum (by the words only) occur at once, many, cited in Bonacina §. 5., wish the force of each to be equal; others, however, consenting, hold that the conjunction by the words only prevails, since it draws forth the more express will of the testator: see Molfesius in summa, 2. p. tract. 13. cap. 5. num. 75. et seqq., Mantica de tacitis et ambiguis convent. lib. 10. tit. 3., Tuscum verb. ius crescendi conclus. 566., with Oinotom. instit. de legat. §. si eadem res, num. 3. et seqq.

Yet the Testator can forbid this right of accrual, so that, one of the conjoined failing, his part falls to the heir; whence there shines forth a great difference between the heir and the legatee: for the latter can obtain nothing by the right of accrual where the express will of the legator shall have expressed otherwise; but an heir instituted in some particular thing, the other heirs failing, can succeed to the whole inheritance, even if the opposite has been expressly provided in the testament; and the reason is, because the testator cannot impede the effect of the common law, which decrees thus, lest anyone die in part testate and in part intestate.