56. On the Obligations of Spouses

1. Philemon, married, thinks to undertake a pilgrimage to Rome and Jerusalem. He manifests his desire to his wife Anna, who openly asserts that she is altogether unwilling. Hence Philemon asks his confessor whether, notwithstanding the manifest dissent of his wife, he can depart.

Q. 1. What are the obligations of spouses? 2. What must be responded by the confessor?

R. To the first. Cf. I. M. 674, 675; V. 2, n. 1051, 1052. To the second. The confessor ought to respond that he cannot depart. For there is a grave obligation of the consortium of an undivided life; nor does the reason, in the case, of mere devotion excuse him from such an obligation. Nor indeed is the wife held, in this case, to follow the husband, since this is altogether grave for a woman. Hence it is that a wife can also annul a vow emitted by the husband of a long pilgrimage, since this vow gravely prejudices her. Lig. 235. For indeed those things which are of necessity are not to be passed over on account of those things which are of one's own will. Hence also the Lord, Matt. 15:13 seqq., rebuked the Pharisees, who taught that the commandment concerning the honoring of parents should be passed over, so that some voluntary offerings might be offered to God. But from necessity it is incumbent on a man that he have care for his wife and cohabit with her. But that he undertake a pious pilgrimage is subject to his own will. But if it is of necessity of the Church that the man undertake such a pilgrimage, then the wife is held to consent to it. St. Thomas, Quodlibet 4, a. 11; S. q. 64, a. 6, ad 1.

2. Polydorus, managing the family estate badly, seeks borrowed money so that he can continue the trade which he exercises. Aurelius, his friend, indeed gladly gives it to Polydorus; but he requires that his wife Apollonia also sign the debt. Apollonia, fearing lest the matter turn out badly, altogether refuses, but, pressed by the entreaties of Polydorus, signs the debt. A little afterward Polydorus dies, burdened by debt. Aurelius demands payment of the debt from Apollonia out of her dotal goods. Since it is a question of an immense sum of money, the whole family is exposed to most grave misery. Apollonia consults Philetus the advocate, who immediately says that she is held to nothing, according to the law, since her private signature is not admitted by law, and that she can fear no detriment from this, since, if the matter were treated before a judge, sentence would certainly have to be rendered for her. Hence, Philetus adds, Aurelius himself will suppress the matter in deep silence. Apollonia, agitated by scruples, asks her confessor whether she can with a safe conscience stand by the counsel of the advocate Philetus, an excellent Catholic.

Q. 1. What are the rights and obligations of spouses concerning goods? 2. Is Apollonia held to pay the debts of her husband from her own dotal goods?

R. To the first. Cf. I. M. 677 seqq., 868. - To the second. Negatively. For from C. I. 1407, no alienation and obligation of a dowry exists, although the spouses consent, unless it was permitted in the marriage contract itself and the prescribed formalities are fulfilled. Thus also from C. G. 1554. Laws of this sort, since they are just, for they are directly on account of the public good, and since they are definitive and constitutive of the right of property, have effect in the forum of conscience and oblige. Therefore Apollonia can use the benefit of the law. Indeed, if Apollonia, during marriage, incautiously permitted her husband to draw off part of the dowry for entering some contract or paying debts, she has a right to obtain the rescission of the contract, or compensation for the detriment brought upon the dowry; for the dowry of a wife cannot be alienated. - I. M. 677, 678, 953; Lig. 354; G. 506.

3. A father of a family, about to give his daughter in marriage, had promised to the bridegroom a dowry of fifty aurei. But because, the nuptials having been celebrated, he does not have them ready at hand, meanwhile he gives to his son-in-law in pledge a little vineyard which he possesses, of about the same price.

Q. Is the son-in-law held to compute into the principal the fruits which, all expenses having been deducted, he gathers from that little vineyard?

R. Negatively, provided nevertheless, as is supposed, that the son-in-law, not the father-in-law, feeds the wife. The resolution of this case is found in C. Salubriter 16, de Usuris, where it is said: "Indeed, we do not think that a son-in-law must be compelled to compute into the principal the fruits of possessions which have been obligated to him by the father-in-law as a pledge for the counted dowry, since frequently the fruits of the dowry do not suffice for bearing the burdens of marriage." But because it is generally certain that a creditor must compute into the principal sum the fruits received from a thing given to him in pledge, as is clear from C. de Pignoribus and C. 1 de Usuris, therefore the present decision has not undeservedly seemed difficult to doctors, both jurists and theologians, and they have brought forward various interpretations of it, most of which obscure rather than illustrate it. The rest being omitted, that which is brought forward by Emanuel Gonzalez in his commentary on the cited C. Salubriter, n. 7, is especially approved by us, where he says: "That we may assign the true reason of this text, it must be premised that a husband, to whom the promised dowry is not paid, is not held to sustain the burdens of marriage; indeed the father, or the stranger promising the dowry to the husband, is held, while the dowry is not paid, to support the burdens of marriage, L. Si is qui 56, § 1, ff. de Iure dot.; L. Si filia nupta 20, § 2; L. Si maritus 46, Famil. ercisc. Then it must be premised that if, from the beginning, when there is question of the constitution of the dowry, it has been agreed between the husband and the one constituting the dowry that the dowry be paid within a month or a year, pledges having been given, although meanwhile he sustains the burdens of marriage, nevertheless for this reason he cannot profit from the fruits of the pledge or seek interest on the dowry, unless an agreement intervened that meanwhile, while the dowry is not paid, something be paid under the title of interest. But in the present text the dowry was constituted for the present, with no delay of time having been given to the father for its payment. These things having been premised, the true reason appears why in the present case the husband can receive the fruits of the pledge and is not held to impute them to the dowry: namely, because he receives them not by reason of a loan, nor of delayed payment, but from this cause, namely, because he fed his wife and sustained all other things without the dowry, which the father-in-law ought to sustain. Wherefore what wonder, if the son-in-law sustained the burdens of marriage from the things of the father-in-law, namely from the fruits of the pledges, which burdens the father ought to have sustained, and therefore is not held to impute such fruits to the principal sum?... Therefore the whole reason why in the present case the husband duly and rightly profits from the fruits of the pledges consists in this: that he sustains the burdens of marriage which the father-in-law ought to have sustained." Cas. Bonon. Dioec., year 1766, month Sept., case 2, p. 142.

The same indeed is the resolution of the case from more recent laws. For in the Italian Code, art. 1397, it is thus had: "The interests of the dowry run by right from the day of the marriage against those who have promised it, even though a delay of payment has been agreed upon, if there is no stipulation to the contrary." The disposition of the French Code, art. 1440, 1548, is altogether the same. Wherefore the son-in-law in the case, since the father-in-law did not pay the dowry, will be able rightly to use the fruits of that little vineyard of equivalent price, without afterward having to compute those fruits into the principal sum. - Dal giorno del matrimonio, from the day of marriage, namely from the day of the celebration of the marriage before the civil magistrate, not from the day of the celebration of the dotal contract before the notary. From the day of marriage, because from that day the burdens of marriage begin, for the sustaining of which the dowry is destined. - I. M. 677.

4. Felix, a tailor, having his own shop in Naples, is joined in marriage to Feliciana, a seamstress, also having her own shop, without any marital contract. Felix, during several years of marriage, gains fifty thousand lire. But Feliciana gains ninety thousand lire. With the capital, by common consent, being constituted as one for its more convenient administration, from its fruits both spouses are sustained, and they perform many pious works and give alms. Meanwhile Feliciana, wishing, for the future case of death, to make a testament, since she is ignorant of these matters, approaches her confessor, asking of him whether she can make a testament, and whether by her testament she can leave 30,000 lire to her surviving husband, 30,000 lire to her sister, 10,000 lire to the chapel of the Blessed Virgin Mary, 10,000 lire to the Capuchin Fathers, 5,000 lire to the poor of the place, 4,000 lire for her soul, so that Masses may be celebrated for her, and finally 1,000 lire so that each year ten Masses may be celebrated for her in perpetuity in the parish church.

Q. 1. Is that which a wife gains by her own industry proper to the wife? 2. What must be answered to Feliciana?

R. To the first. Cf. I. M. 677. 4°. - To the second. That sum of 900,000 lire [printed thus; context indicates 90,000] which Feliciana gained by her singular industry, exercising the art of seamstress, belongs entirely to Feliciana. That sum constitutes neither a dowry and a dotal good, nor a common good. For no dowry was constituted at the beginning of the marriage, and no contract was entered concerning community of goods, C. I. 1388, 1425, 1433. Besides, Feliciana gained that sum not by common labor with her spouse, but from her own singular industry and extraordinary and proper labor. Wherefore a sum of this sort constitutes an extradotal good and one altogether proper to Feliciana. But that afterward, from the 50,000 lire of Felix and from the 900,000 lire [printed thus; context indicates 90,000] of Feliciana, one capital was made, this was only for more convenient administration, and accordingly those two spouses remained owners, each of his or her own capital. Wherefore Feliciana can rightly dispose by testament concerning that whole sum. - I. M. 677.

But as to the testamentary dispositions which Feliciana proposes to make for herself, these things must be noted.

1. As seems to be gathered from the case, Felix and Feliciana are Italians; therefore Feliciana, according to the Italian Code, can make a testament concerning her own goods, nor for making a testament does she need the consent of her husband or the decree of a judge. I. M. 1137.

2. A spouse is not declared by law incapable of receiving an inheritance. If the testator spouse does not leave ascendants and descendants who have a right to the legitime, the other spouse has a right to the usufruct of a third part of the goods. C. I. 814. Feliciana, as appears from the case, has neither ascendants nor descendants. But the part left to Felix exceeds the legitime. Wherefore, since the rights of Felix are not only not harmed, but on the contrary he receives far more than is owed to him, the disposition of Feliciana can be placed in the testament. I. M. 1043.

3. According to civil law, indeed there is no obligation to institute brothers and sisters as heirs or legatees. Indeed this obligation is not present according to natural law and in the forum of conscience either, unless they are in grave necessity; in which case it suffices to leave to them only as much as suffices for relieving their need. Nothing therefore can be noted against Feliciana if she does not have other brothers and sisters, or if, should she have them, they are not needy. But as regards her sister who is to be her legatee, Feliciana used her own right, since Feliciana can freely and altogether dispose of her own goods, apart from the usufruct owed to her husband by law, since she lacks necessary heirs. I. M. 682, 1040-1042, 1044.

4. The legacy of 10,000 lire for the chapel of the Blessed Virgin Mary is altogether valid as a pious legacy, which is governed only by Canon Law.

Nor indeed from civil law can this disposition suffer any difficulty; since here it is not a question of dispositions ordered to instituting simple benefices, or lay chaplaincies, or other similar foundations, which art. 833 declares null. Nevertheless the permission of the Government is needed. C. I. 1060. Wherefore this disposition also can be placed in the testament. I. M. 1039. But to avoid every difficulty on the part of this permission, and since, generally speaking, pious legacies are often subject to the annulment of civil laws, because they are considered as autonomous moral entities which are not approved by law, in place of bequeathing the aforesaid sum to the chapel of the Blessed Virgin Mary in the testament, it should be bequeathed to the Ordinary of the place, with his name and surname expressed, and beforehand, by a particular letter, the destination of this pious legacy should be signified to him.

5. The legacy in favor of the monastery of the Capuchin Fathers is valid, since they can receive a legacy after the manner of alms. But from civil law there can be grave difficulty, since Institutes, Congregations, and other foundations whose existence is not legally proved are incapable. Indeed, moral bodies, although they are legally recognized, need the permission of Superiors. C. I., a. 2; law of 5 June 1850; decree of 26 June 1864. But religious, from the Italian Code, even if they are professed, are not incapable either of making a testament or of acquiring an inheritance. Wherefore Feliciana will be able to leave 5,000 lire to some determined Father, for example, Fr. Philip of Naples or another, with a note privately delivered to him and to be preserved in the archive of the monastery, by which she declares her mind concerning that legacy in favor of the monastery. I. M. 1038, 1039.

6. Nor indeed can there be any difficulty, also on the part of civil law, as to the legacy of 5,000 lire for the poor of the place. For this disposition is expressly approved by art. 832. But this disposition, from the same article, devolves to the local Institute of Charity. I. M. 1039. Wherefore if she wishes it to be distributed, by the parish priest, for example, among the present poor, it should be bequeathed to some determined person who merits trust; and by living voice, or better by some written note, the destination of that sum should be signified. - Besides, the disposition by which the testator assigns to the parish church a determined revenue, constituted in certificates of public debt, with the obligation that the parish priest distribute it annually to the poor of the parish, is juridically valid. Likewise, a resolutive clause in favor of relatives is valid, when from any cause whatever the legacy can no longer be fulfilled. A legacy in favor of the poor blood-relatives of the testator is juridically valid. For the legacy is not uncertain, since that double quality can easily be certified.

7. The disposition made in favor of her soul, of 4,000 lire, is valid and is admitted by the civil law itself. For Feliciana's disposition is in no way perpetual, nor is it expressed generically, but is altogether precarious and is determined as to its scope. I. M. 1039.

8. Finally, the disposition of the foundation of ten Masses in perpetuity, in the parish church, is also valid from the civil law itself. For here it is not a question of a benefice, or of a chaplaincy, or of a similar foundation. Nor indeed is it a question of a pious work expressed generically, but one altogether determined. C. I. 832; I. M. 1033. Moreover, legacies made to the parish church for worship and suffrages, mandated by testament, are juridically valid. For the testator does not create an autonomous entity, but only bequeaths certain goods to the parish Fabric with the obligation of burdens of this sort. Nevertheless, immovable goods bequeathed are converted by the Treasury, and the corresponding revenue must be paid by the same to the Fabric. - Likewise, a testament has juridical value by which the testator imposes on the heir the burden of giving to the parish priest, or to other celebrants designated by the testator himself, or to be designated by another person, annually and in perpetuity, a certain determined sum of money for offices and Masses to be celebrated in suffrage for his soul. Cassaz. di Roma, 10 May 1882; Cassazione di Napoli, 17 Dec. 1880.

9. Let Feliciana name as heir in the testament her spouse or her sister, and let her impose on the heir the burden of executing the remaining pious dispositions. For thus the dispositions will be firmer; for it will be a testamentary disposition under a mode. But if Feliciana wishes to be altogether certain concerning the fulfillment of her will, as regards pious legacies, it is much better that, during her life, she herself hand these things over from hand to hand to the bishop, so that afterward they may be applied to the destined purpose.

5. Romanus and Romana, spouses separated in goods, had handed over the administration of their goods to their firstborn son Peter. Now a certain spacious and very ancient villa was being exposed to public sale. Romana, desiring to buy it, gave a mandate to Peter that he buy it in her name and with her money. But at that moment there was not found, in the chest of the mother's administration, sufficient counted money. Peter, greatly desiring to comply with his mother, took money from the chest of the father's administration, and with that money bought the villa. After the contract had already been perfected, Romanus learns that his money had been used for that purchase; hence he contends that the purchased villa is his, although integral restitution of the money had already been made from the chest of Romana's administration into the chest of Romanus's administration.

Q. 1. Can a wife enter contracts? 2. Whether the villa belongs to Romana or to Romanus?

R. To the first. Cf. I. M. 678, 953. - To the second. The villa belongs to Romana. For it was bought in her name and from her mandate. Therefore she is the one who, by the contract of purchase, acquired its dominion. Nor indeed is it an obstacle that the purchase was made with another's money. For it is not money which acquires dominion for the person; but it is the person of the buyer who, through the money, in the purchase, by an act of his will, acquires dominion, which is transferred from the seller to that person. And thus dominion of the thing bought can be acquired even when the price has not yet been paid. C. I. 1448, 1507 seqq. This is besides established also from L. 1, Cod., tit. Si quis alteri, vel sibi, sub alterius nomine, vel aliena pecunia, emerit: "If land and slaves were purchased with the father's money, nevertheless, since you state that the purchases were made in the name of your mother, you must not be ignorant that by tradition your mother was constituted mistress." Likewise L. 2 and 8, e. t., and L. 6, Cod., tit. de Rei vindicatione: "If from that money which you had deposited, the one with whom it had been placed purchased possessions for himself, and they were delivered to him, it is unjust for them either all to be delivered to you, or for some of these to be conferred upon you by him unwilling, by way of compensation." I. M. 1127.