Question III: Who can and ought to make a testament, or be instituted heirs

I ASSERT first, that all those, and only those, can make a testament who, having the use of reason, have a peculium, unless they are prohibited by law. They are prohibited, first, the Under-age. Second, sons under paternal power, except as regards castrense, or quasi-castrense goods: likewise as regards adventitious goods, which they have acquired after entering the clerical state, except for pious causes with the father's consent. Third, those intestable by law on account of the crime of a deed l. Is cui. Et l. cum lege, ff. Qui testam. et C. Falcidia, de poenis in 6. and other laws. Fourth, Religious, except by concession of the supreme Pontiff for pious causes. Fifth, those condemned to natural or civil death, and to perpetual prisons, except for pious causes. All which the law proves and declares more fully, as Sylvester verb. Testam. 1. quaest. 3. et 4. Molina T. 1. disp. 136. ad 138. et Less. l. 2. cap. 19. dub. 4.

ALTHOUGH, speaking per se (where the paying of due debts, or the avoidance of litiis, or scandals, does not require it) no one is held under grave obligation to make a testament; yet those sin gravely against justice who prevent anyone from freely making a testament, or from changing, if he wishes, a testament already made, and who try to restore to those to whom the goods of the deceased would have come. And in the external forum, besides other penalties, they are deprived of every emolument of the goods of such a deceased person, according to l. 1. et 2. ff. si quis aliquem Testam. prohib. l. 2. C. eodem titulo, Leg. Testamenti, C. de inoff. Testam. as Molina proves disp. 135.

I ASSERT second: Heirs, or legatees, cannot first be instituted as heretics, apostates, and those adhering to them Leg. fin. Cod. de haeret. et Leg. hi, qui sanctum, Cod. de Apost. Second, those who persecute Cardinals, and strike or capture them, C. felicis, ne panis in 6. Third, the Intestable on account of crime, as above. Fourth, the Friars Minor, and not a few other religious, who nevertheless can receive Legacies under the title of alms, as Clement V. declares in Exivi de Paradiso.

THE inheritance can also be left in their favor, that it be sold by executors and the price given to them, as Less. teaches l. 2. cap. 19. dub. 5.

I ASSERT third, that the necessary heirs are the sons, grandsons, etc., and in default of these the ascendants; the Father, and Mother, and when these fail the Grandfather, Great-grandfather, as Molina declares disp. 159.

A distinction must be made concerning illegitimate sons: for Natural children, who are from simple fornication, can be instituted heirs, even universal heirs, if they themselves have no legitimate offspring, Leg. licet Cod. de fil. natur. nay, they even succeed to their mother ab intestato in full if she lacks legitimate children; but if she has legitimate ones, they succeed equally with them Leg. si qua illustris, Cod. ad Senatusconsult. Orficianum. To the father, however, if he lacks legitimate children, they do not succeed ab intestato except in two unciae, that is, in the sixth part of the goods, according to Leg. licet, Cod. de filiis natur. Yet even those having legitimate sons can leave them an Uncia, that is, a twelfth part of the goods.

BUT Spurii, who are from a union condemned by the laws, cannot receive anything from their father leg. Licet Cod. de natur. lib. et Novella 74. cap. 6.

Yet the Spurius can receive aliments, and his parents owe them, if he has them from no other source cap. cum haberet de eo, qui duxit in matrim. notwithstanding the civil law Leg. ex complexu Cod. de Incest. nupt. for it was rightly derogated from by the canons. Whence it follows that to a spurious daughter a dowry is owed, which takes the place of aliments, even if the parent be a priest. So Nauar. in C. Non liceat, §. 19. Couar. ibi, num. 15. Less. lib. 2. cap. 19. dub. 6. Nay, Henriquez cap. 20. num. 4. thinks that these aliments can be left to spurious children even if they are not in need, which Less. does not disapprove num. 69. But the Mother is bound, if she can, to nourish the son during the first triennium, at the end of which the father is bound, until the son can do so by his own industry, l. Haec filium, Cod. de patr. potestate, et C. fin. de convers. infid. as Couar. teaches num. 19. Molina disp. 169. Lessius num. 70. Tannerus disput. 4. quaest. 7. dubio 11.

YOU ASK, what Substitution is, and that it is fourfold.

IT is answered, with Tannerus n. 314. disp. 4. quaest. 7. that it is a vocation, made in a last will, of one or more into the place of another or others, to some thing, which generically is twofold, Direct, and Indirect, according to Molina t. 1. disp. 182.

EACH of these again is sixfold, namely vulgar, pupillary, exemplary, fideicommissary, reciprocal, and compendious, of which the first four are simple; the last two are composed of several.

VULGAR substitution is that by which the testator substitutes to the heir, whether instituted by himself or succeeding ab intestato, any other person not prohibited by law, in the case that he will not, or cannot, be heir.

PUPILLARY substitution is that by which he substitutes someone to an under-age child placed under his power, if that child should die before puberty; whence it comes about that not only the goods of the pupil left by the father, but also other things, come to the substitute; according to §. Igitur, Instit. de pupil. substit.

EXEMPLARY substitution (as if invented on the pattern of the pupillary) is that by which substitution is made to a son who is demented, or deaf and mute at once, or a prodigal; which therefore also contains the vulgar one, should it happen that the son die before the testator. But if the son be under age, the same substitution will also be pupillary, etc.

FIDEICOMMISSARY substitution is that by which the heir is burdened to restore the whole inheritance, or a certain portion of it, to another, who is called the fideicommissary; and since it is a substitution introduced, it can also be made by Codicil.

RECIPROCAL substitution is that by which those instituted are substituted to one another in turn; as if you were to say: I institute as heirs Peter and John, and I substitute these to each other.

COMPENDIOUS substitution is that which contains several substitutions according to diverse times, and ages, or conditions of those who are substituted.

YOU ASK what is called the legitimate portion, which ought always to be Salic for heirs legitimately to be instituted.

BY the Caesarean law it is had that, if the testator has four sons, or fewer, a third part of the goods be divided equally among them; but if there are more, the half part of the goods be divided. See Molina disp. 158. With respect, however, to the ascendants, the Father and Mother, it is a third part Auth. de triente, et semisse, §. 1. et gloss. ibi.

BUT the legitimate portion ought to be left free leg. quoniam in prioribus, Cod. de inofficioso testam. See Molina t. 1. disput. 177. Fagund. l. 6. cap. 13. num. 19.

NOTE that in default of ascendants and descendants, even if the testator has collateral kinsmen and brothers, it is free for him to institute as heir even an extraneous person §. 1. Instit. de inoffi. test. lib. fratres, Cod. eodem.

Yet if he leave the inheritance to an infamous person, the brother will be able to act for the rescission of the testament, provided he be not merely uterine, etc., according to the same laws.

But to this testator, when free, poor kinsmen are commended, on whom he may have mercy, and that he not institute unfit heirs, whom Sylvest. enumerates v. haereditas 3. quaest. 1. et alii Summistae.

In these Sylvest. enumerates the excommunicate, but wrongly, as Suar. proves 3. p. t. 5. disp. 15. sect. 9. et Ioan. Baptist. Villalob. l. com. op. v. Excommunicatio. Heretics, however, and others expressly designated by the law, are excepted, as Fagund. notes loc. cit. num. 21.

NOTE that all who are not prohibited by law can be executors of testaments. It happened, however, that one of ours, dying, when he had been left by his Father to assist his demented brother, with the faculty of naming another at death, named another; it was asked whether he had done this licitly.

IT IS ANSWERED affirmatively, because, although the Friars Minor cannot become executors of last wills, according to Clem. Exivi, §. Proinde iur. Sanctus, de verb. signif. they can nevertheless name executors with the license of a superior. So Rodriq. t. 3. qq. Reg. quaest. 70. art. 2. et in summa, p. 2. cap. 70. Vecchis Praxi, disp. 8. dub. 13. Couar. in C. Tua nos, num. 1. de testam. Sanch. l. 6. Moral. cap. 11. Diana p. 8. tract. 5. resol. 13. where he enumerates 25 Doctors in this opinion. Nay, Bassaeus our own adds to them that it is probable that the same Friars Minor, and a fortiori the others, can be constituted, with the license of their Superiors, Commissaries for making a testament in the name of the one committing it.

IN explanation of the decree of Clement I say that there the matter concerns properties, and therefore the friars are excluded from executing it by their own authority, but not by the authority of another, the testator's, for the doing of the work. Thus I explain D. Bonav. epist. ad Provinciales.