Question III: Which things can be bequeathed

ANY thing whatsoever that is alienable, to which the testator has a right, can be bequeathed; the reason arises from dominion over the thing, which is subject to the plain disposition of any Lord. But a thing belonging to another cannot be bequeathed, because a bequest imports a translation of dominion, which must be supposed in the one bequeathing. Yet if anyone should make a bequest of another's thing, willing and knowing that the thing is not his own, then the bequest falls directly upon the heir, who is bound to procure for the legatee that thing or its estimation, as is had in leg. cum alienam, Cod. de legat. and §. non solum, institut. de legat. Nevertheless it falls to the legatee to prove that it was made known to the testator that that thing was another's: partly because he is the actor, whose it is always to prove; partly, because it clearly stands that the thing is another's, which simply cannot be bequeathed; but the presumption stands for the heir, until the opposite be proved. And these things are so according to the disposition of the civil law; but in the forum of conscience, Bonac. §. 3. proposit. 1. judges that such a bequest can neither be made nor paid; with whom accords cap. filius noster de testamentis, reproving the civil law because it makes valid a bequest of another's thing; yet Vasquez dub. 2. teaches that every bequest of another's thing, even made in ignorance, is valid, if made in favor of a wife, a dear friend, or his own servant, because then it is presumed that the Testator would have done the same even if he had known the thing to be another's; whence the heir is compelled to furnish the estimation of the thing, and this is special in a bequest: for in the institution of an heir, another's goods are invalidly inserted, nor is their estimation owed. So Vasquez, citing Gomez in the same place.

But the things of a Church, or of commonwealths, which are not subject to our commerce, can be bequeathed LESS; for the alienation of these things and the like is prohibited, as is had in Institut. de legat. §. non solum, cited above. Yet some thing in which the testator has some right can be bequeathed; and it will stand for that part, if he has bequeathed only his own right; but if he bequeathed the thing, and afterwards obtained the whole of it for himself, the whole bequest will stand, by whatever title he acquired it. So Vasquez, and in part Bonacina, cited.

Also a thing of the testator obligated to a creditor can be alienated by bequest; because in it there is always preserved by the Testator some right, which he can transfer to another; and if the testator was ignorant that the thing was obligated, the heir is bound to redeem it and hand it over to the legatee.

Say the SAME of the things of the heir himself, transferred by bequest to another; for the testator can impose that burden upon him, and the heir can accept it, since the entering upon the inheritance takes up every obligation signed in the testament: and this is true, they say, whether the thing is in the heir's possession or he has a right to it: argum. leg. cum filius, §. dominus, ff. de leg. 1., as Gratianus discept. forens. cap. 237. num. 26. has it, with Molfesius num. 71. and others. Yet there is this difference between a thing of the testator and one of the heir bequeathed: that the former is acquired to the legatee as to dominion immediately upon the death of the testator; not so the thing of the heir, which transfers dominion only by delivery.

But if anyone should bequeath the very own thing of the legatee, such a bequest would be in vain; for the same thing cannot be made the proper thing of the same person twice, leg. proprias, Cod. de legat., since also no one can dispose of a thing not pertaining to himself. Let the same judgment be of a dowry bequeathed to the wife, which pertains to herself, whence she cannot receive it by bequest; yet neither would this bequest be wholly void, because it would serve for anticipating its payment, which must be made immediately upon the death of the husband, since the Dowry of itself is not compelled to be paid except after a year: So Iustin. in §. sed si uxori, instit. de legat.

WHEN, however, some fruit-bearing thing is bequeathed, it must be seen whether it is of a definite species or of a genus. For if it is in some definite species, the fruits of such a bequest are owed from the day of the testator's death; but if not, and the thing be generic, the fruits must be computed from the day of the heir's delay, which is computed from that time at which the heir defers paying the bequest. But if not the thing itself but its fruits are several times bequeathed, it must be considered whether this was done by demonstrating or by taxing the thing; for if it was said demonstratively, although the thing has deteriorated, nevertheless the whole bequest must be paid; as he who should bequeath a hundred modii of wheat from such a field. But if the thing is taxed limitatively in the bequest, nothing must be paid beyond what is received from the thing. So Gomez, Vasquez, Zechius, Sanchez, and others cited in Bonacina, who assigns that rule by which the taxing of a thing is discerned from its demonstration: as if by a double clause the bequest is made, it is judged to have been made demonstratively, as when it is said: I bequeath a hundred to Paul, and I will that they be paid from the revenue of such a field: and then they must be paid, even if the whole revenue of the field has not risen to a hundred; because, the bequest already complete, he only designated the field. So it is gathered ex leg. quidam testamento, ff. de legat. But if the manner of bequeathing is completed by one clause only, as: I bequeath a hundred to Paul from the fruits of such a field; it will be a sign that the testator spoke taxatively; and if the field has not yielded a hundred, nothing more must be paid; leg. nomen debitoris, §. uni ex haeredibus, ff. de legat. 3.

CONCERNING a bequeathed thing, indeed, the general Rule is that with any principal bequest, its other accessories are judged to be bound by the same bond. Hence, with a bequest of a bed read, without house, garden, clothing, peculium, provisions, or furniture, all those things ordinarily annexed to it are judged bequeathed, as Bonacin. draws out at length and proves with a long series of Laws and Doctors.