72. On Testament and on Legacy

1. Vincentius, an Italian, makes a holographic testament in this form: "I the undersigned institute as universal heir of all my goods my wife. - On the first day of January of the year one thousand eight hundred ninety-four. Vincentius de Vincentiis." He writes it in the Latin language and on common paper, not sealed with the seal of the kingdom. But he omits to note the place in which it was made. Likewise there is a blank after the words, I the undersigned [blank] institute, etc.; for he wished afterward to write his own name and surname. There is also another blank after the words, of all my goods [blank] my wife, etc.; for he also wished to add the name and surname of the wife. Then there are erasures of the words universal and goods, which afterward again are clearly written by the same hand of the testator. The word my is interposed between line and line. Finally three additions were added at different times, each of which is wholly written by the proper hand of the testator himself, with indication of the day, month, and year, which in the first addition is found at the end; in the second and third it is found at the beginning and is written not in letters, but in numbers. Finally, at the end, they were signed by the testator himself.

Q. 1. What is the form of a testament? 2. What as to the case?

R. To the first. Cf. I. M. 1026. - To the second. The testament of Vincentius is valid. For to the validity of a holographic testament only three things are required: 1. That the whole be written by the hand of the testator. Nor do blanks, or erasures, or interpositions hinder, provided all things are written integrally by the hand of the testator himself; so that if even one word is written by another hand, as a true part of the testament itself, the whole disposition is void. Nevertheless it must be established that the word added by another hand is a part of the testament; otherwise anyone, into whose hands it came, could make it void by adding a word. But it can be written in any language and on any paper. Law of 14 July 1866. Wherefore no fine as to paper is to be paid in Italy.

2. It is required that at the end or under the beginning of the disposition the day, month, and year in which it was made be indicated. And this can be effected either in numbers or in letters written out. If even the notation of the day alone is omitted, the testament is null; for example, if the date is noted thus: July 1873. But the place is not also necessarily to be indicated.

3. It is required that at the end it be signed by the testator himself. - The signature must altogether necessarily be last, and such that the identity of the person is established. Although it seems to suffice that the testator use that signature which he was accustomed to use in public acts and under which he is commonly known, as, for example, bishops are accustomed to sign acts with only the initial letters of the name, or only with the whole name, the dignity of the episcopate and the name of the diocese being added; nevertheless it is better to put the personal name and the surname of one's own family, and, if necessary, also other specifications to avoid every difficulty. But for a wife it is enough that she write her own personal name with the surname of the family of her husband.

Additions can afterward be made, provided, however, that all have the three noted conditions. - C. I. 774, 775; I. M. 1026.

2. Felix, the only son of Felicissimus, attacks the testament of his father, by which Felicissimus left half part of the patrimony to his nephew Adauctus, vindicating the whole patrimony for himself. A testament of this sort was: We leave all our goods, immovable and movable, to Felix our only son; nevertheless half part of the paternal patrimony we leave to our nephew Adauctus. On the feast of the Nativity of the Holy Year. - Felicissimus de Felicibus; Felicissima de Felicibus.

Q. Does Felix by right attack the testament?

R. Felix can by right attack the testament of his father and mother. For a testament cannot be made by two or several persons in the same act, neither for the benefit of a third party, nor by reciprocal disposition. C. I. 761; C. G. 968, 1097. For this hinders the freedom of revoking a testament. It must also be noted, as to the preceding testament, that the date of the feast of the Nativity also invalidates the testament in the case. For the date must altogether be written, although, as jurists think, it is not necessary that it be added in its specific form of day, month, year; but it suffices to add it equivalently, namely if the date is clear of itself, for example, on the feast of the Nativity of the year 1899. But in the case the date is doubtful and ambiguous; for it can be of the year 1899 and of the year 1900; indeed, rather, it can be of any other Holy Year. Besides, the preceding testament seems to be a holographic testament, and consequently the whole must be written by the hand of the testator. Wherefore, since it was written by one Felix alone or by one Felicissima, the testament is void also from this head.

3. Gerontius, lacking necessary heirs, soon to die, the notary having been called by him but not yet present, before the pastor and several women spontaneously declares that he leaves all his goods to Eugenius, his only natural heir, and to his friend Paulinus. Soon the notary is present, with the required witnesses and future heirs. But behold, while he interrogates the dying man, he himself can no longer speak. Nevertheless, when the pastor asks whether he holds ratified the will just now set forth by himself, he assents by a nod of the head and a little afterward dies. Eugenius, that he may receive the whole inheritance, immediately obtains from the judge the invalidation of the testament. But Paulinus, thus deprived of his right, by title of compensation keeps for himself both 10,000 lire which he had received as a loan from Gerontius and 1,000 lire which he secretly owed to Eugenius himself.

Q. What as to the case?

R. The testament of Gerontius is certainly valid by natural law. Wherefore Paulinus can altogether in conscience claim and keep the inheritance until it is made void by sentence of the judge. For the will of the testator is certainly established; and civil law does not declare void by full right a testament lacking the formalities of law. I. M. 1029.

But Eugenius legitimately invokes the invalidation of the testament. For that law, establishing various forms of testaments under penalty of invalidity, is just. But in the case from the prescription of the law it was altogether required that the testator himself declare his will viva voce before the notary and legitimate witnesses, all of whom afterward ought to have signed the testament. Wherefore it does not suffice that the sick man, being interrogated, answer affirmatively, whether by word or by nod of the head. I. M. 1026, 1029.

Paulinus before the sentence of the judge can indeed keep the 10,000 lire received as a loan from Gerontius, if these do not exceed the part of his inheritance. But he must altogether restore them, a legitimate sentence intervening, by which he is altogether cast out from the inheritance.

But Paulinus by no means can keep the 1,000 lire which he owes to Eugenius, whether before or after the sentence of the judge. For that money does not pertain to the inheritance, since it is not of Gerontius the testator, but of Eugenius the heir. Besides, before the sentence, Paulinus has only a probable right to the inheritance; but after the sentence he no longer has any right to the inheritance; but whether before or after the sentence, no injury has been done to him by Eugenius, and therefore he has no right at all to compensation, since there is no injured right to be compensated. - G. 829, 830, 831, 837, 839; I. M. 936, 1029. But cf. here n. 198, 200, 3.

4. Legitime of children. I. M. 1043. - 1. Ambrosius divided his whole patrimony by testament into two equal parts between his two sons. To one, however, whom he believed very suited to agriculture, he assigned the rural estates; but to the other, who was exercising the liberal profession of advocate, the urban estates. He who obtained the rural estates cannot stand by this division made by the father and contends that all the rural and urban estates must be divided equally between himself and his brother. Is this rightly?

R. Negatively. For the only thing which is owed to children is the legitime, which must be given from hereditary goods, and therefore cannot be supplied by another thing or by money. But by law only the quota part, not what sort, is established as to be left to necessary heirs. Therefore that son to whom the father left the rural estates cannot complain by right. - I. M. 1041-1043.

2. Sempronius dies in France, leaving two grandsons from his predeceased son. What is the legitime of those grandsons?

R. From French law 913, the legitime part of one son is a half, of two sons two thirds, of three or more three fourths. Moreover, since in the case two grandsons succeed who hold the place of the predeceased father, they themselves are computed as one person. Wherefore their legitime is a half, not two thirds.

3. Tullius in France left three sons. But one of them renounced the inheritance. Is the legitime of the other two sons two thirds or three fourths?

R. From French law 913, when a father dying leaves three sons or more, not heirs, their legitime is three fourths. But if he leaves two sons, not heirs, their legitime is two thirds. But Tullius in the case left three sons, although only two heirs. Therefore their legitime is three fourths, not two thirds. - I. M. 1040, 1043.

5. Legitime of children together with a wife. I. M. 1043. - 1. Aloysius by testament left 30,000 lire to Titus, his son from the first marriage; 40,000 lire to Caius, another son from the former marriage; 50,000 lire to Sempronius, the third son from the same marriage. What can he leave to the second wife?

R. The second wife cannot obtain a sum greater than 30,000 lire. For this is the part of the less-considered son of the prior marriage. - I. M. 1044, note.

2. Philippus instituted as heirs, in equal portions, his sons, to whom he leaves all his substance. But he leaves the universal usufruct to his spouse. Is this disposition valid?

R. The disposition of Philippus is valid. But if the sons are unwilling to consent to the aforesaid disposition, the disposable part in full dominion devolves to the spouse. C. I. 810.

3. Raphael, a French citizen, dies at Rome and leaves four sons, to whom by testament he assigns half part of the goods to be divided equally among them, and assigns the other half part, as freely disposable, to his wife. Did he act by right?

R. Raphael did not act by right. The reason is that C. I., Preliminary Disposition 8, establishes: "that legitimate and testamentary successions, as to the order of succeeding, as to the measure of rights of succession, and the intrinsic validity of dispositions, are governed by the national law of the person whose inheritance is in question, of whatever nature the goods may be, and in whatever region they may be found." Wherefore this is valid even if the goods are immovable and all are situated in Italy. Therefore the part owed to the widow of Raphael must be reduced to a fourth part. C. G. 920. For Raphael can dispose only of a fourth part according to C. G. 913; but by no means of a half part according to C. I. 805. But will the widow of Raphael be able in conscience to keep the whole, if his sons do not seek reduction? One must answer affirmatively. For reduction from C. G. 920, 921 is not had by the law itself, but must be sought, and cannot be sought except by those in whose favor the law constituted the reservation of goods.

4. Zacharias, dying, left a wife and two sons. One of these renounced the inheritance. In the computation of the legitime pertaining to the wife, ought he also to be enumerated?

R. Affirmatively. For from C. I. 812, 815, even a son who does not make part makes number. For children are computed for defining the legitime. Besides, a portion is assigned to the spouse, not that which belongs, but that which would belong, spetterebbe, to the individual sons. I. M. 1043.

5. Lucius died leaving a wife and one son. - Lucidus died leaving a wife and two sons. - Lucillus died leaving a wife and five sons. What is the legitime of the wife?

R. To the wife of Lucius there is owed in usufruct a fourth; to the wife of Lucidus a sixth; to the wife of Lucillus a twelfth is owed. The reason is that to the surviving spouse, not separated by a sentence which has passed into a judged thing, if children of the deceased are present, there is owed a part of usufruct, namely the virile share of the legitime of the children, the spouse being computed as if a child. C. I. 812; I. M. 1043.

6. Legitime of illegitimate children together with legitimate children, with ascendants, and without them. - 1. Ioannes has five natural and legitimate children, and two natural children only, but legally recognized. But he has a fortune of 28,000 lire. What is their legitime?

R. Since half part of the whole inheritance in the case is 14,000 lire, the legitimate children each obtain by title of legitime 2,800 lire. But since illegitimate children are present, and these must be computed with the legitimate, that for them half the quota part which would pertain to them if they were legitimate may be determined, and this part is to be deducted from the disposable part, it is clear that their legitime is 1,000 lire. For 14,000 lire divided among seven give 2,000 lire to each, of which the half is 1,000 lire, which are to be deducted from the disposable part. C. I. 815; I. M. 1043.

2. Alphonsus has no legitimate ascendant and descendant; he has one natural son, but legally recognized; he has a fortune of 60,000 lire. What is his legitimate part?

R. If the son had been natural and legitimate, his legitime would have been 30,000 lire, namely half. Since he is natural and illegitimate and the only one, his legitime is 20,000 lire, namely two thirds of the aforesaid quota. C. I. 816; I. M. 1043.

3. Sempronius leaves one illegitimate child and ascendants. What is the legitime of the illegitimate child, if he was duly acknowledged?

R. The illegitimate child of Sempronius obtains a fourth, namely half of the part which would have fallen to him if he had been legitimate. C. I. 815.

7. Alienation of patrimony. - 1. Laurentius alienated his whole patrimony, that he might constitute for himself, his wife, and his children a life annuity. Did he act by right?

R. Laurentius acted by right. For he alienated the patrimony by an onerous title. But the law provided for children only as to liberalities and alienations carried out by gratuitous title. C. I. 805, 1791, 1794, etc.

2. Gabriel, during his life, alienated the whole disposable part of his patrimony, that he might found a hospital for the poor. But he reserved the whole legitime for his sons and wife. Did he act against the laws?

R. Parents do not seem to be held, not even in conscience, to leave all goods by testament to their children; but it suffices if they leave them the legitimate portion prescribed by law, at least if this suffices for them to live according to their own condition. For otherwise parents, the outcome being considered, would have to be called rather usufructuaries than owners of their goods. Wherefore, if the poor were pressed by grave necessity, or some work had to be completed for the public good, for example, a hospital or church, parents do not sin if, the legitimate portion of goods being left to the children, suitable for sustaining them fittingly according to their state, they spend the rest on those works. Certainly they can institute some pious legacies. But they would sin if they acted thus from hatred toward the children; or also if, without sufficient cause, they gave the remaining inheritance to a stranger, for this seems contrary to the order of charity. Prov. 13:22. But Gabriel does not seem to have to be disturbed. Scavini, Milan, 1874, 12th ed., l. 2, n. 331; I. M. 673.

8. Succession of various children. - Alphonsus, dying, left Petrus, a natural and legitimate son, Paulus, a natural illegitimate son, Paulinus an adoptive son, and 24,000 lire by inheritance. What is the portion of them by legitimate succession?

R. Petrus and Paulinus each receive 10,000 lire; Paulus receives 4,000 lire. For to him pertains only half part of the portion which he would receive if he were legitimate, and that in the case would be 8,000 lire; whence to him there are owed only 4,000, and the other 4,000 accrue to Petrus and Paulinus. But the illegitimate child must seek his portion from the other two brothers, who can furnish it either in counted money or in goods of the inheritance. C. I. 744; I. M. 1047.

9. Succession of illegitimate children. - 1. Titius, dying, left 12,000 lire and one illegitimate son, duly acknowledged, without other legitimate descendants and ascendants and without a spouse.

2. Caius, dying, left 12,000 lire, one illegitimate, legitimated son, and a spouse.

3. Sempronius left 12,000 lire, one natural, legitimated son, a spouse, father, and mother.

Q. What is the portion of all these?

R. In the first case the illegitimate son becomes heir ex asse and receives the whole inheritance. C. I. 747.

In the second case the illegitimate son succeeds ex besse, or in two third parts, and the other third part, or fourth, pertains to the spouse. - Wherefore 8,000 lire pertain to the illegitimate son; 4,000 to the spouse. C. I. 745. - If the spouse were not present, and ascendants were present, a fourth likewise would be owed to them. C. I. 745.

In the third case the illegitimate son succeeds ex quincunce, or in five parts of the inheritance; father and mother receive a third, or four parts; the spouse a fourth, or three parts. C. I. 745. - Wherefore the illegitimate son receives in the case 5,000 lire; father and mother receive 4,000 lire; finally the spouse receives 3,000 lire.

10. Succession of ascendants. - 1. Augustinus, dying, left 12,000 lire, a mother and a paternal grandfather.

2. Ambrosius, dying, left 12,000 lire, a paternal grandfather and grandmother, and a maternal grandmother.

3. Bernardus, dying, left 12,000 lire, both parents and two illegitimate sons duly acknowledged.

4. Bernardinus, dying, left 12,000 lire, both parents and a spouse.

5. Benedictus, dying, left 12,000 lire, both parents and two brothers.

6. Gabriel, the adoptive son of Michaël, dies, leaving a rich inheritance. Michaël claims a part for himself in it.

7. In a common shipwreck Aemilius the father and Ludovicus the son die. There remain surviving Michaël, father of Aemilius, and Dominica, mother of Ludovicus and wife of Aemilius.

Q. What in these cases is the part of the various heirs?

R. In the first case the mother receives the whole inheritance, the paternal grandfather being excluded, namely 12,000 lire. C. I. 738.

In the second case the paternal grandfather and grandmother receive together a half, or 6,000 lire; the maternal grandmother by herself receives a half, or 6,000 lire. C. I. 739.

In the third case the parents receive a third, or 4,000 lire; the illegitimate sons two thirds, or 8,000 lire. C. I. 745.

In the fourth case the parents receive two thirds, or 8,000 lire; the spouse a third, or 4,000 lire. C. I. 754.

In the fifth case the parents together receive a virile share, provided this is not less than a third. Hence each receives 3,000 lire. But if there were one full brother, each would receive 4,000 lire. If there were three full brothers, each would receive 2,400 lire. And, if there were four full brothers, each would receive 2,000 lire. If the brothers are consanguine or uterine, they obtain half the quota of full brothers, and what these receive less accrues to the full brothers if there are any; otherwise to the parents. C. I. 740.

In the sixth case there is no portion of Michaël. For the inheritance of an adoptive son does not pertain to adoptive parents, but remains to the proper blood relatives of the adoptive son. C. I. 210, 212, 737. - I. M. 1047.

To the seventh. Since from C. I. in the case the rights of the son into the father and vice versa are not transmitted, Dominica, the mother of Ludovicus, obtains his entire inheritance, if he had goods. But Michaël obtains two third parts over the inheritance of his son Aemilius; a third is owed to his wife Dominica. I. M. 1077, 2, 5; 1050.

11. Succession of a spouse with collaterals, with ascendants, with children. - 1. Titius dies and leaves Titia his wife and Caius his paternal uncle, and at the same time a patrimony of 12,000 lire. What is their legitime?

R. To the spouse pertain 8,000 lire, to the paternal uncle 4,000, namely two thirds to her, one third to him. C. I. 755; I. M. 1047.

2. Caius dies and leaves Caia his spouse and Sempronius his brother, and at the same time a patrimony of 24,000 lire. What is their legitime?

R. To the spouse pertains a third, to the brother two thirds; and therefore to the spouse there are owed 8,000 lire, to the brother 16,000 lire. C. I. 754; I. M. 1047.

3. Marcus dies and leaves a patrimony of 12,000 lire, and a spouse together with a brother and father. What is the legitime of the spouse?

R. A third, that is, 4,000 lire, are owed to the spouse; a third also, that is, 4,000 lire, are owed to the father; and a third likewise, or 4,000 lire, are owed to the brother. C. I. 740, 754; I. M. 1047.

4. Marcellus dies and leaves a spouse with a father and illegitimate son, legitimately recognized, and a patrimony of 12,000 lire. What is the legitime of each?

R. To the spouse there is owed a fourth, or 3,000 lire; to the father a third, or 4,000 lire, pertain to the father; the remainder, that is, quincunx, or 5,000 lire, pertain to the illegitimate son. C. I. 745; I. M. 1047.

5. Stanislaus, dying intestate, leaves seven legitimate sons and Stanislaa his wife. At the same time he leaves an inheritance of 16,000 lire. What is their legitime?

R. Since there are seven sons and, besides, the wife is present, she is to be computed with the sons; and therefore the whole inheritance will have to be divided into eight parts. But since the eighth part is 2,000 lire, Stanislaa, who has the right only of usufruct, obtains the usufruct over this part. But Stanislaa must compute in this part all things which came to her from matrimonial agreements and dotal profits. The remainder will have to be divided in equal portions among the seven brothers. - I. M. 1047, 5.

12. Succession of brothers, with ascendants, with a spouse, with both, no others concurring. - 1. Raphael having died, and father and mother and two full brothers having been left, and a patrimony of 24,000 lire:

Q. 1. What is the legitimate portion of the brothers? 2. What, if there were four or five full brothers? 3. What, if with a spouse? 4. What, if they concurred at the same time with ascendants and spouse? 5. What, if there were no others concurring?

R. To the first and to the second. Brothers concurring with ascendants receive ex asse a virile share, namely either the whole, according to their number, or with a third deducted for the ascendants. Wherefore in the first case they receive a virile share, the whole, that is, each receives 6,000 lire; in the other, a virile share with the third of the ascendants deducted, namely, if they are four, each receives 4,000 lire; if five, each receives 3,200 lire. C. I. 740.

To the third. They receive two thirds, and therefore 16,000 lire. C. I. 755.

To the fourth. They receive a third, namely 8,000 lire. C. I. 740, 754.

To the fifth. Brothers, if they alone exist, whether full, consanguine, or uterine, receive the whole inheritance, that is, 24,000 lire. C. I. 741.

2. Paulianus, dying, left 24,000 lire and four brothers, two full and two consanguine. Since with consanguine or uterine brothers concurring with full brothers there pertains half the portion of the quota pertaining to full brothers from C. I. 741, it is asked whether to the two consanguine brothers there pertain 3,000 lire, that is, half part of the portion which they themselves by right would receive if all were full brothers, or whether there rather pertain 4,000 lire, that is, half part of the portion which in fact, the inheritance having been divided among them, the full brothers would receive. For if the consanguine brothers each received 3,000 lire, then the full brothers in fact would receive not 6,000 lire, or double, but triple, namely 9,000 lire.

R. This matter is doubtful. But since in the cited law it is said that consanguine or uterine brothers, concurring with full brothers, have a right only to half part of the quota pertaining to full brothers, this seems to be understood rather of half part of the quota pertaining in fact, or which truly falls to them. Hence those two consanguine brothers have a right to 4,000 lire, and the full brothers to 8,000 lire, two consanguine brothers being computed as one full brother.

13. Testament between spouses. - Serapio, spouse of Sylvia, proposes to that same wife that by testament she leave all her goods to him, since they themselves have no children, nor does Sylvia have any ascendants. Sylvia accepts, but on this condition, that Serapio in turn make a testament by which he leaves all his goods to her, if perhaps he himself dies first, since he also lacks ascendants. Serapio accepts, with this condition also superadded by him, that she herself also at once make a testament in his favor, that the completed testaments then be revoked by neither, and that this be confirmed by oath. A double testament is thus made; but Sylvia, just as she immediately made the testament, so immediately repenting of the deed destroys her testament and makes an entirely new one. A little after, Serapio dies, and Sylvia enters his ample inheritance.

Q. What as to the case?

R. The testament made by Serapio is altogether null, since from positive law there is no testamentary disposition made by a testator under this condition, that he himself in turn be called to the inheritance by his own heir. Hence Sylvia cannot keep the inheritance, but must restore it to the legitimate heirs. C. I. 852; C. H. 794; I. M. 1032. Nevertheless, C. A. 602, 1249, cf. 543, admits pacts concerning inheritance among spouses only. But C. G. 965, 1097 says that spouses cannot, either by an act among the living or by testament, effect any mutual and reciprocal donation in one and the same single act. I. M. 1005, 1008, 1037, 1038.

But the pact entered of by no means revoking the completed testaments is null, and therefore Sylvia from this head of itself could still revoke her testament and enter the inheritance of her husband; for again from positive law there is no renunciation of the faculty of revoking a testament, and therefore that agreement was invalid. C. I. 916; I. M. 1024. But, in the case, Sylvia in reality could no longer revoke the testament; for Serapio furnished his consent on this condition, and therefore, by force of that pact so conditioned, if Sylvia had changed her testament, as in fact she did, she ought to have warned her husband. Wherefore also for this reason, since Sylvia used fraud, and the testament of Serapio was null, she cannot enter his inheritance.

It would be otherwise if, no condition about not revoking the testament having been added, she herself afterward secretly revoked the testament; for since a testament is essentially revocable, she would then have used her own right and would not have employed any fraud, just as Serapio also could then, if he wished, have secretly changed the testament. Likewise, if no condition had been added that the testator himself be instituted heir by his heir, each testament also would have been valid, and then Sylvia could have entered the inheritance. I. M. 1034.

But the added oath, in the case, was null; an oath follows the nature of the act. But the act is declared invalid by law. Therefore the oath also is invalid. For it cannot confirm a null agreement. - G. 846, 847; I. M. 560, 565, 970.

14. Testament for one's own soul. - The sisters Maria and Laureta by testamentary disposition left their own souls as heirs of their own patrimony, naming a testamentary executor. He sold the goods, caused Masses to be celebrated, and distributed alms among many poor. Since money still remained, he sought from the Sacred Congregation the faculty that he could spend it on certain poor blood relatives and other pious works.

The S. C. C., on 17 Dec. 1887, responded: There is no need. The reason is that whenever the soul of the testator himself is instituted heir, satisfaction is made to his will if the things left are applied either to Masses to be celebrated, or to promoting a pious cause, or to relieving the poor. For all these things yield to the suffrage and relief of the soul of the deceased. M. E., v. 5, p. 1, p. 245.

15. Fideicommissum. - Moevia, a widow, has two daughters, of whom one is legitimate and the other spurious, but recognized by public act. Grieving that only a modest part of the goods legally belongs to this latter one, she commits to Anna a thousand francs, that after her death they may be secretly handed over to that same spurious daughter. But Moevia having died, Anna remains anxiously uncertain, not knowing to which of the two sisters this money committed to her faith is to be delivered.

Q. Whether the money committed to Anna belongs to the spurious daughter of Moevia, or to the legitimate daughter?

R. The solution of the question depends on the state of the fortune of the mother. If the fideicommissary legacy harms the rights of the legitimate daughter, it cannot be fulfilled; but otherwise, if it by no means harms. For the mother could give to her recognized natural daughter, beyond that which is assigned to her by law, whatever she could give to a stranger. Hence, if the mother is rich enough, Anna can assign this fideicommissary legacy to the illegitimate daughter, since the other girl has no right in this money, since, by hypothesis, she would not be injured in her legitime." Thus P. Gury 867. But this resolution suffers difficulty from C. I. 768 and also from C. G. 908, since by each law illegitimate children whom the testator has legally acknowledged, or whom a sentence of the judge establishes to be such, while legitimate children exist, cannot receive anything from the father or mother beyond the legitime. I. M. 1038. Wherefore Anna can give nothing to the spurious daughter of Moevia; but those thousand francs must be restored to the whole inheritance of Moevia, so that afterward from the whole mass of the inheritance the legitime of the legitimate daughter and of the recognized natural daughter may be determined. The same seems to be drawn from C. A. 160, 162, 165, 166, 752, 753; and the same would have to be said if there were question not of the mother but of the father of the illegitimate daughters. But since in the case there is question of the mother, something else seems to have to be said from art. 754. For a distinction is made between succession to the paternal patrimony and succession to the maternal patrimony. In this succession illegitimate children have the same right as legitimate children. C. H. 847 permits a certain donation to a legally recognized illegitimate son, which does not exceed a third of the free disposition. - I. M. 1038, 1039, 1045, 1047.

16. Florus, a dissolute and rich man, has a twofold offspring, one from fornication, but not recognized, and the other from incest with Flavia, his blood relative. Since he wished to benefit each, he committed to Antonius twenty thousand francs to be divided between each after his death.

Q. Whether Antonius can or ought to execute the fideicommissum toward each spurious offspring of Florus, or to assign the received money to the heirs?

R. "Florus probably could commit to Antonius money to be transmitted to his fornicary offspring. The reason is that he could also have instituted that offspring heir, not indeed insofar as his offspring, but insofar as a person not incapable by law. The same also by natural law as to a legacy to be bequeathed to incestuous offspring, on account of the same reason. But by French law incestuous children, just as adulterine children, are declared altogether incapable of receiving donations. For they have a right only to receive those things which are necessary for living. Nevertheless, several contend, not improbably, that donations of this sort are not made void unless the defect of birth is juridically established." Thus Gury 868. But this solution also does not lack difficulty. For as to fornicary offspring, the distinction between his offspring and a person not incapable is altogether chimerical in the concrete; for the legacy, in the case, is made to one's own fornicary offspring, by no means legally recognized, which is a person incapable by law. I. M. 1038. But as to incestuous offspring, although by natural law the legacy is not void, nevertheless by positive law it is void, and this suffices that the legacy cannot in reality be made to him. Nor indeed does what is affirmed seem solid, namely that the defect of birth ought to be juridically established; for this is not established from law; indeed the contrary is established. For as to illegitimate children, none are admitted to succession except recognized and legitimated natural children, who by legitimation acquire the quality of legitimate children, C. I. 194; C. G. 333, and therefore have the same rights as they do, and natural children, only legally recognized, who also have some rights to succession, although not the same as legitimate children. Natural children neither legitimated nor at least legally recognized are excluded from succession. But adulterine and incestuous children whom the testator has acknowledged, or whom a sentence of the judge establishes to be such, have a right only to support. Cf. I. M. 663, 1038. Besides, if that juridical proof were required that an adulterine and incestuous child be excluded from succession, the law would then almost always be evaded; and that law would now by no means protect marital fidelity and piety. Wherefore Florus, of himself, seems to be bound to assign the received money to the heirs. The same seems to have to be said from C. A. 165, 166, 167, 752, 753, 754. Cf. C. I. 752; C. G. 762; I. M. 1039, 1045; Scav., l. 2, n. 542.

17. Titius in the year 1860, according to the laws then in force, left his inheritance by a testament clothed in legal form to two nephews, Sempronius and Caius, of whom the latter then had no children. Titius bequeathed his inheritance to each in equal portions, but with this condition for the second nephew, then destitute of children: namely, that if he himself should die without children, half part of the portion received from the paternal uncle testator would be given to the other nephew, who had children.

The new Code having been promulgated in Italy, which in articles 899, 900 prohibits substitutions and declares them to be without effect, without voiding the institution of the heir or legatee, Caius, lacking children, contends that he can keep for himself the whole portion of inheritance received from his paternal uncle. But Sempronius contends that that half portion pertains to him if Caius really dies without children, according to the certain will of the paternal uncle testator.

Q. What as to the case?

R. Sempronius can by right claim the aforesaid half portion. For here there is no question of a fideicommissary substitution prohibited by law, which consists in this, that someone is burdened with the obligation of preserving an inheritance, and then after his death of rendering the same to a third person. But, on the contrary, there is question of a conditioned testamentary disposition, which the Italian Code itself altogether admits. Therefore the condition established by Titius must altogether be preserved.

18. "Eudorius, a celibate man, destitute of necessary heirs, lying gravely ill, that he may provide for his soul, determined to spend part of his goods on pious works. To this end he instituted Bonifacius as universal legatee by a testament clothed with the due forms. But he delivers to Bonifacius a private writing, in which he manifests his pious will, and asks of him that he faithfully execute the same. But Bonifacius, Eudorius being dead, keeps the whole inheritance, on the ground that he holds it by a valid testament. It is asked whether he can be safe in conscience? The Sacred Penitentiary responds that, in the case set forth, Bonifacius is held in conscience to fulfill the certainly known will of Eudorius, for the forum of conscience."

23 June 1844. The matter treated, as is evident, in the case, is a fideicommissum for a pious cause. I. M. 1030, 1031.

19. Revocation of a testament. - Genesius instituted as universal heirs the three sons whom he had from Genesia. When she had died, he contracted marriage with Lucretia, from whom he begot two sons, and afterward he dies.

Q. Is the testament in the case revoked?

R. The testament in the case is not revoked on account of the two sons supervening. Wherefore the two later sons, in the case, have a right only to the legitime portion. Scav. ed. 12.ª Mediol. 1874. l. 2. n. 450; I. M. 1034, 1035.

20. A testament destroyed by accident. - Titius, after making a holographic testament, delivered it for safekeeping to Caius, whom he had named heir. But by ill fortune, on the same night on which Titius died, the room of Caius is burned, and the very desk also, in which the testament was being kept, is consumed by fire. It therefore happens that the parents of the deceased enter upon the inheritance ab intestato. The pastor presents himself to them, a man above every exception, who swears that he read the testament of Titius the day before it was burned, and that in it Caius had been instituted heir, and at the same time certain pious legacies had been inscribed, to be furnished for the good of his parish. Since the legitimate heirs of Titius in no way attend to the pastor's attestation, he asks them at least to pay the legacies left for pious causes. But in vain. Hence the pastor agrees with Caius to fabricate certain money notes, the signature of Titius being perfectly simulated, by which both he himself may recover the pious legacies, and Caius may recover something for himself, from the heirs, who in fact, taken by the fraud, pay the sum of money designated by the notes.

Q. What as to the case?

R. First a distinction must be made, and it must be seen whether the room of Caius was burned after the death of Titius, or before it, which can easily be verified in practice. If the testament was consumed by fire after the death of Titius, the dominion of the inheritance had already been transferred to Caius, and likewise the dominion of the legacies had been transferred to the pious causes. The pastor read the testament, and therefore has every certainty of the matter. The same seems to be said of Caius.

For since Titius made a holographic testament, and delivered it to the instituted heir Caius for safekeeping, it does not appear at all that the testament was a secret one; but rather that Titius had manifested also viva voce the institution of Caius as heir, and that then the testament was delivered to him. But if perhaps Titius handed the testament to the pastor to be read, on account of the pious legacies, to ask him about them, again it is not credible that Titius kept the testament secret, at least as regards the institution of Caius as heir, to whom he delivered it for safekeeping. But Caius and the pastor, by forging false notes, sin venially against truth, gravely against charity toward themselves, since they expose themselves to the gravest penalties established against forgers, and also to scandal. Moreover they sin gravely against legal justice, which, on account of the common danger of fraud and deceit, forbids under the gravest penalties any false writing of this sort. And such a law obligates in conscience, even if by chance no prejudice is done to anyone.

Nevertheless, since matters have succeeded well, that which they received by a means indeed illicit, but not unjust, can be retained by them. For they do not seize what is another's; they take what is their own. But the parents of Titius can be excused from fault, because they were not held to give faith to Caius and the pastor, who were testifying in their own cause. - G. 841, 842.

But if the testament was consumed by fire before the death of Titius, Titius died intestate. Wherefore his parents rightfully entered upon the inheritance; nor are they held to pay anything to Caius; nor can Caius in any way use occult compensation, and despoil, by his own authority, a legitimate possessor. For civil laws concerning successions obligate in conscience, since they confer a true right of property; and this right cannot be conferred except in the forum of conscience. Wherefore Caius, despoiling the legitimate heirs by means of the forged notes, acts unjustly, because by the false notes he employs true fraud, and therefore he is held to restitution. The same must be said if Caius had fabricated a simulated testament, that he might despoil the legitimate heirs, or forestall them from the possession of the inheritance. But what if, without any simulated document, Caius simply says that he was instituted heir by Titius, and reports the event of the fire and of the testament destroyed, and the legitimate heirs, believing him, neither enter upon the inheritance nor invoke the sentence of the judge? Then Caius will be able to keep the inheritance, as will appear from what is said later. For just as an heir from an informal testament can keep the inheritance until he is removed by the judge, and can enter upon it if the legitimate heirs have not lawfully taken possession, so also can an heir from a testament destroyed before the death of the testator; because in both cases the will of the testator can certainly be established, and an informal testament is not invalid by full right, but is only liable to rescission. Indeed, in such a case, if the legitimate heirs enter upon the inheritance, but Caius, who had earlier received from the testator a sum by title of loan, does not return it to them and keeps it for himself, still it seems to be said that he can do so. For he does not despoil the legitimate possessors of goods held by them, and that informal testament was, at least probably, valid until the sentence of the judge intervened, which had not intervened in the case. Therefore neither legitimate possession nor the sentence of the judge stands in the way. Cf. G. 829, 830, 831, 837, 839, 841, 842; I. M. 936, 1029.

Finally, as to the pastor, if the legitimate heirs of Titius have moral certainty of the pious legacies left by Titius, they are held to pay them. For pious legacies are governed not by civil law, but by natural and canon law. But if they do not have moral certainty, they are held to nothing. "If the pious will of the testator," says St. Alphonsus l. 3. n. 924, "has not been established to the heir, Laymann says that the heir is not held to give faith to one witness to his own prejudice, even if he is approved in other respects, according to C. Relatum, where it is said: we command this to be done, if by three or at least two suitable witnesses it has been proved that the testator so wished. The same is gathered from c. 10 Licet, where: no cause is terminated by the testimony of one, even if he shines with legitimate honor. Nor should it be said that a pastor can prudently be believed; for it is necessary for the common good, so that the door not be opened to fraud, that no one, whoever he may be, be admitted as a witness. Thus Laymann, Lessius, Bonacina, etc. Hence Laymann says that the heir is not held to believe the pastor alone, unless, besides him, another witness confirms the same."

Concerning the same matter, Reuter P. 3. n. 386 says: "If the pastor, after the death of a parishioner, produces a schedule containing pious legacies, and he asserts that it was given to himself by the deceased, it is plain that, if the schedule is recognized or proved by two witnesses to have been written by the testator himself or by another in the name of the deceased, such a pious will must be executed. Likewise, if the pastor asserts that the schedule was dictated to himself by the deceased, in the presence of two witnesses, and the schedule is subscribed by the pastor and those two witnesses, there is no doubt that a will of this sort must be executed. If, however, the pastor himself noted in writing the pious legacies left to his church or for other pious causes, I do not think that the pastor is to be believed, unless at least one other witness accedes, who was present when the dying person was declaring his last will. Wherefore pastors and confessors should be admonished not to receive such final dispositions for pious causes, unless one or two male or female witnesses are called; for one witness together with the pastor can suffice." Cf. Gennari Consult., etc. p. 1, cons. 36.

21. On dividing a patrimony among children who succeed to their father ab intestato. - Titius, a rich man, having a patrimony especially in cash, struck by a sudden illness, dies in extreme old age and intestate. Two sons, who by constant labor and industry had greatly augmented the family patrimony, and who had served the aged father until death, take for themselves the whole paternal inheritance, and give nothing to their sister Caia, who had long since been married with a suitable dowry. But Caia demands from them an equal division of the inheritance, according to the civil laws now in force, and, when they refuse, she threatens them with the judge. Then the brothers gather up all the money of their father, hide part for themselves, and deposit the rest in the bank under a fictitious name. But Caia, who indeed suspected that such a thing had been done, yet wishing to avoid litigations, reluctantly ceases from the judicial petition of her part.

Q. Are those sons of Titius safe in conscience?

R. The sons of Titius cannot in any way be regarded in the case as sons under paternal power, that is, as minors, to such an extent that those fruits of their industry would belong to the father himself and would increase his patrimony. For in the case they are described as grown men. Nor, on the other hand, can they be regarded as extraneous persons, or merely as administrators, such that the ordinary reward is owed to them for the labor given. For in the case they are described as having served the family property by constant labor and industry up to the extreme old age of the father, and also as having greatly increased the same patrimony.

Therefore there is no difficulty under this head. But since it is supposed in the case that the patrimony of Titius consisted especially of cash, one must inquire into the origin of the money hidden or deposited by the brothers in the bank. Ordinary fruits, that is, legal interest, arising from money, even if administered by the sons, certainly pertain to Titius and to his patrimony. For an ordinary administration does not confer dominion in the fruits, but at most the right to an ordinary reward and compensation. And therefore the patrimony of Titius, together with such fruits, must be divided equally between Caia and the two brothers. But the dowry of Caia must be brought into the inheritance. Wherefore, if the part owed to Caia equals the dowry, nothing must be given to her; if it exceeds, the brothers owe the excess.

But, besides the aforesaid ordinary fruits, there are other extraordinary fruits of money, which arise from the labor and industry of the brothers. Since these do not come forth from the patrimony, but from the extraordinary industry and labor of the brothers themselves, they belong exclusively to them, and the sister has no right to them. For a thing fructifies for its owner, that is, in favor of the one to whom it belongs, so that he receives the fruits arising from the thing; it by no means fructifies in favor of the one who works upon the thing, so that he takes the fruits for himself. But the extraordinary fruits of the industry of the brothers, by which the patrimony is notably increased, cannot be considered as arising from the patrimony; they are certainly to be regarded as an acquisition proper to the brothers themselves. Therefore, if the money hidden by the brothers or deposited in the bank is only what they acquired by their own industry, they are not to be disturbed, and they are held to nothing toward their sister Caia.

22. On legacies. - Maria N., widow B., in her testament, written by a certain priest, corrected by herself, and transcribed in another form by a notary, constituted several legacies. Among the legatees there was Clementina B., to whom she left 100 scutata, with this condition, that, if she had predeceased the testatrix, the said scutata were to be spent for as many Masses as could be celebrated in suffrage of the testatrix. When the testament had been opened, and the death of the testatrix had occurred, it was found that no person in the family B. named Clementina existed, nor had ever existed. But since there is a man named Clemens, he contends that the legacy is due to himself.

Q. What as to the case?

R. Since by the supposition of the case, and by the attestation made, it is certain that no person of the family B. named Clementina exists, nor has existed, there is no doubt that the legacy must be assigned to Clemens. For evidently there was an error in the transcription of the name by the priest, or by the notary, and an error of this sort in the name of the person harms nothing, when, namely, one person cannot be confused with another, as in the case. Thus in L. 4 C. de Testam. it is had: "If a father has instituted a son heir under another name, which is certain by express designation, although the person of the heir designated from custom is used, nevertheless because that which is written is certain, we do not permit the testament to be invalidated by cavil over the name." And in Inst. de Legat. § 29: "But those names only are regarded which are inserted to signify persons: nor does a false demonstration stand in the way; such as if he should say: Stichus my slave, born from Seia, is to be free; for although he was not born from Seia, yet, if it is established concerning the slave, freedom is valid."

Thus likewise C. I. 836 establishes: "A disposition has its effect, when the person of the heir or legatee has been erroneously indicated, provided that from the context of the testament or from other documents, or from facts, it results which person the testator wished to name. The disposition has its effect also when the thing which forms the object of the disposition has been erroneously indicated or described, provided that it is certain what thing the testator wished to indicate." Cf. A. S. S. v. 19, p. 128 seqq., Ius Pontif. vol. 7, p. 53.

23. "Joseph, a pastor, and from the title added to the parish called Prior, according to the triennial custom makes a solemn testament before a notary and witnesses; in which, among other things, he sets forth: 'By title of legacy I leave to my successor Prior my whole library.' But Joseph, who had attended to letters and ecclesiastical studies from youth, possessed a very large collection of books, suited entirely to a pastor eager for learning and learned. Peter, succeeding Joseph in the parish and in the priorate, obtained possession of the library, and scarcely ten years had passed when, transferred to another parish, he carried those books away with him. But a little afterward Peter himself, struck by sudden death, left them with his heirs. But meanwhile two or three priests succeeded him in the parish or priorate, no one of whom complained of the said carrying away of the books. Now the heirs of Peter, fearing lest they possess another's goods, desire that their doubt be resolved, namely: whether the legacy of the library, left by Joseph to his successor Prior, was due to Peter as a private person, or to the Prior as prior, and to the successors in the same dignity.

"The resolution of the doubt seems to depend on the following: In law the legacy inscribed for the rector of a church is then regarded as left to the rector himself, and not to the church, or to the rector and his successors, when from the conjectures, or from the concurrence of special circumstances, the same seems certainly to be persuaded by cap. 15 Requisisti de Testam., and by the common authority of the Doctors, according to Amostazii, l. 3, tit. 4, q. 36. This learned man writes as follows: 'It must be distinguished whether a legacy is left to the rector, and there is some conjecture that he left it on account of the person of the rector, such as because he is a relative or a close friend, or because the rector has conducted himself well toward the testator, or there is another similar cause; and then the legacy will belong to the rector himself, not to the church. If, however, there is no reason why he should be judged to have left it to the rector as a particular person, it will be judged to have been left to the church and to the successor of the rector; because although the legacy may have been left to the bishop or to the rector, it is nevertheless understood to have been left to him as administrator, not as a private person. Thus etc.' Since, therefore, in the present case no probable reason is offered by the heirs why Prior Joseph should be said to have left the books to Peter as a private person, and not rather to the priorate; the Most Eminent Fathers being asked: Can the heirs of Prior Peter retain the library left by Joseph to the successor Prior? Or rather does this library, with the books that have perhaps been added, pertain to the Prior who is presently incumbent? On 17 February 1854 they replied: To the first negatively, to the second affirmatively." Bizzarri Collectanea 1st ed. p. 55. Cf. Laymann l. 3. tr. 4. c. 5. n. 4.

24. "Mercorus had promised one hundred gold coins to Publius, to be left in a testament. But being overtaken by a sudden illness, and now about to die, he called to himself his son Andreas, and says: I wish you to give one hundred gold coins to Publius. These things having been said, he died intestate.

Q. Is Andreas bound to pay the legacy to Publius? - And can Publius, if he refuses, compensate himself?

R. Andreas the heir is probably not held to fulfill the legacy of his father, at least per se, because that mode of disposing is not conformable to law; for a legacy is probably not valid unless it is constituted in a valid testament. Except if the son promised the father that he would fulfill his will; because then an implicit contract would intervene, by which the son would take on the obligation of fulfilling the legacy by natural law. For the father, relying on the promise of the son, abstains from another safe way of transmitting the legacy. I said probably, because concerning this there is sharp controversy before the sentence of the judge. Therefore there is a twofold probable opinion. Some urge the obligation by natural law of executing the will of the dying man; others, however, oppose the disposition of the law." Thus Fr. Gury 852, 857, 858, who then omits to speak of the compensation of Publius. But the aforesaid legacy, from positive law also admitting a natural obligation, seems more truly valid, although liable to rescission. Wherefore, as long as the sentence of the judge does not rescind it, it does not appear why Publius could not compensate himself, if Andreas should refuse to pay the legacy, and should not invoke the sentence of the judge. He may compensate himself, namely, in that way which was stated in the preceding cases above n. 72, 3, 20, and which is admitted by Fr. Gury himself 831, namely by retaining those things which pertain to that legacy, if perchance he has them, but by no means by retaining those things which pertain to Mercorus, if he has them, or by despoiling him with his own money or things. Still, there are not lacking those who simply admit compensation in this case, as in the preceding cases, although they hold the validity of the testament and legacy as only probable. "Third," says Lugo d. 16. n. 94, "one who ought to have a legacy from a less solemn testament, since there is a probable opinion that those legacies are owed in the forum of conscience, although the contrary opinion is sufficiently common and probable, can nevertheless detain the legacy, or receive it anew, or secretly compensate himself, as Granado, Molina, and Lessius confess; Lessius adds that an heir ab intestato can also use occult compensation against him who possesses the goods of the deceased from a less solemn testament, because the contrary opinion also is probable, to which he can conform himself." Cf. I. M. 936, 1011, 1029, 1477, 1478; Lugo d. 16. n. 94; S. Alph. l. 3. n. 521.

25. Gabriel by testament left to Raphael one thousand lire, by title of alimony, to be paid for twenty years by his heir. After ten years Raphael dies. His sons reclaim the legacy. But Gabriel [i.e., Gabriel's heir] refuses to pay it.

Q. What as to the case?

R. Raphael [i.e., Gabriel's heir] is held to nothing. For alimonies cohere with the person, and consequently are not transmitted to heirs, even if they have been constituted for a certain and definite time; indeed, even if they are owed from a thing adjudged. C. I. 146.

These things are had to the point in L. 20, Quando dies legator. vel fideicomm. cedat: "If a legacy has been made with a prefixed definition of years, for example, ten each to Titius up to ten years, Julian writes in the thirtieth book of the Digest that it matters: and indeed, if it was left by name of alimony, there are several legacies, and the legacy of future years does not transmit the dead legatee to the heir; but if he did not leave it for alimony, but divided it into several payments for the sake of relieving the heir, in this case, he says, there is one legacy of all the years, and that the legatee dying within the decade also transmits the legacy of future years to his heir; which opinion is true."

26. Pious legacies. - On account of a testament destitute of legal conditions, Francisca received the inheritance ab intestato, after a legitimate sentence of the judge. Among other dispositions, the testator destined 1,000 lire to his confessor, that he might celebrate 100 Masses for his soul. Hence Francisca asks: 1. Is she held to take care that those Masses be celebrated? 2. Must she hand over the prescribed alms of the Masses to the confessor of the testator, so that Masses may be celebrated by him, or can she hand it over to another priest?

Q. What as to the case?

R. To the 1st. Affirmatively; for it is most truly a disposition for a pious cause, which always retains its value, if it is certainly established concerning the will of the testator. But concerning it there is certainty even through a testament destitute of legal conditions, provided only that it be established that the testament was truly made by the testator, and that it was not simulated nor changed. Therefore. This is confirmed from the common authority of theologians, who teach that, although a testament principally made for a non-pious thing is not valid, nevertheless the pious legacies left in it are valid. Nor does the sentence of the judge already rendered stand in the way; for in dispositions for pious causes one must stand by canon law, not civil law. Cf. Molina de Just. et Iure disp. 134. n. 2, 6, 7; Lugo de Just. et Iure disp. 22. s. 9. n. 267, 272, 273; Laymann l. 3. tr. 4. c. 2. n. 1-5; Schmalz. de Testam. n. 45, 46; Roncaglia tr. 14. q. 14. c. 2. q. 2; G. 859-865; Lucid. de Visit. ed. 3.ª v. 2. p. 426, 427; D'Annib. ed. 3.ª v. 2. n. 339.

R. To the 2nd. She must hand over that alms to the aforesaid confessor of the testator. For that whole sum seems destined with a view to the confessor; since a lesser sum would suffice for celebrating those Masses; nor would there be any need to constitute the person of the celebrant. Therefore the disposition is for a pious cause not only as to the Masses to be celebrated, but also as to the celebrant himself, whom the testator wished to favor. It must therefore be observed altogether, and indeed from strict justice. For when an election is imposed, not in favor of the community and on account of the common good, but in favor of the one elected, that person acquires from the will of the testator a strict right of justice to the thing left to himself. And thus, if a testator should expressly leave a legacy for the poor of a place, for poor relatives, for virgins, and it were given to outsiders, strangers, or married women, there would be place for restitution. Lugo d. 24. n. 284.

27. A pious woman, near death, making a testament, declared these things: "I institute as heir my daughter Agnes, with the obligation of causing a sacrifice to be celebrated on each Saturday at the altar dedicated to the Virgin Mother of God; and this sacrifice, if he can, the priest B., teacher of the boy, will celebrate. Likewise for my soul I desire that it be celebrated each Saturday before the image of the Virgin Mother of God; and this, if he can, the priest A., teacher of my grandson, will celebrate." Agnes diligently satisfied the obligation; but when Agnes had died, her sons and heirs petitioned the Apostolic See: 1. Whether the legacy of Masses is truly obligatory. - 2. Whether, in the affirmative case, such a legacy ceased by the death of Agnes?

S. C. C. on 4 Aug. 1863 judged: The legacy is obligatory and perpetual. For truly, in the interpretation of legacies, attention must chiefly be paid to whether the testator wished to burden particular persons, whom he called heirs, or the inheritance, to which he nominated certain persons to obtain it. If the first, the legacy is temporary and expires with the persons called. If the second, the legacy is perpetual. But these things being considered, if the mind of the testator, which is more to be attended to, is still doubtful, and as to the locution, judgment is usually given in favor of the pious cause, or the favor of the pious cause overcomes the liberty of the heir, and therefore the legacy is judged perpetual. A. S. S. v. 1. p. 272; Scav. ed. 12.ª Mediol. 1874. l. 2. n. 541.

28. "Cleoniphas instituted Amedaeus as his universal heir, with the burden that he should pay 600 francs to the fabric of the church. But behold! Amedaeus is seized by sudden death; a little afterward the testator himself also dies, without making another testament. Paschasius enters upon the inheritance, succeeding ab intestato. From him the pastor requires the pious legacy in favor of the Church; but Paschasius refuses to pay it.

Q. Is Paschasius held to pay the legacy to the church?

R. Paschasius is held to nothing at all. For no obligation was imposed on him, since he succeeded ab intestato. Why, therefore, should the pious intention of the deceased be imposed on him to be fulfilled, when he was not even constituted heir by him?" G. 851.

29. Carolinus, the son and heir, when his father Carolus had died, gathering the writings left by his father so that he might know the rights of his inheritance, found a schedule in which the father had noted by his own hand pious dowries and alms.

Q. Is the aforesaid heir held to fulfill those dowries and alms?

Resp. 1. The words of the schedule must be considered. For if the schedule contains a certain legacy, it must altogether be observed, although it is destitute of every solemnity of civil law; for the disposition is for pious causes. Auth. Quod sine, ibique Glossa, C. de Testam., C. Cum esses, C. Relatum de Testam.

2. If the schedule contains an obligation to be fulfilled by Carolus from justice or from vow, it must likewise be fulfilled by Carolinus, unless he should discover that it had already been fulfilled by the father. For a son and any universal heir succeeds in all the rights and burdens of the testator. C. In litteris 5. de Raptorib.

3. If the schedule contains only a pious work which Carolus, from devotion and from charity, had resolved to do himself, the heir is not held to fulfill it. For the schedule was then written only for his own memory, not to bind the heir. Indeed, even if Carolus had had the intention of obligating the heir, the heir is still not held by an obligation, if the testator had not expressed the aforesaid intention. For a purpose retained in the mind effects nothing. L. Quinam ff. de Hered. instit. Wherefore the will of the testator is not attended to unless it is expressed. - Cases of the Diocese of Bologna, year 1778, month of August, case 2; I. M. 588, 589, 1030, 1031.

30. Pious legacies delayed. - Serapio, testamentary executor of Hilarion, wished to delay the sale of the movable goods of the same Hilarion, so that, if he could, on an opportune occasion, he might sell them at a greater price and thus be able to distribute more alms. But there is a doubt whether, from this delay, the soul of Hilarion suffers detriment rather than perceives utility.

Q. - 1. Does a dead man feel any detriment from the fact that the alms which he ordered to be given are delayed? - 2. Should the executor delay the distribution of alms, for this reason, that the things of the deceased may be sold better?

R. To the 1st. "It must be said that here there is need of a twofold distinction. First, on the part of the detriment itself. For detriment is twofold. For one detriment is that which pertains to the toleration of punishment, according to that which is had in 1 Cor. 3, 15: If any man's work shall burn, he shall suffer loss. Another is that which pertains to the subtraction of a remedy. Secondly, a distinction must also be made on the part of alms, concerning which even the merit of the alms itself can be considered. The deceased suffers no detriment from the aforesaid delay, especially if, as much as lay in him, he took care that alms of this sort would be given quickly, because merit depends principally on the will and intention; but as to the effect of the alms, he suffers detriment, not indeed because he is punished for delay of this sort, but because the remedy is not applied to him, while the suffrages from which he would be greatly helped are deferred." S. Th. Quodlibet 6. a. 13.

To the 2nd. "It must be said: In a delay of a moderate time there does not seem to be great danger; whence, if the executor defers giving the alms for a moderate time, so that, the things of the deceased being better sold, he may be able to give larger alms, he does this laudably. But if, on the contrary, he defers for a long time to distribute the alms, so that he does not make the alms much larger, he does not seem to be without fault, because perhaps the deceased would be freed from purgatory, in which, while he exists, the remedy of suffrages was especially necessary. But this requires the examination of a prudent executor; namely, that, considering the delay of time and the condition of the person, who is believed to be freed sooner or later, and also the quantity of the increase of the alms, he may do what will seem expedient for the deceased." S. Th. Quodl. 6. a. 14.

31. Reduction of Masses. - Ioannes possessed a rich benefice, to which was annexed the burden of 300 Masses yearly. For each Mass 5 lire corresponded. But, the house being destroyed by an earthquake and the vineyard being devastated by a flood, which constituted the dotal property of the benefice, he now scarcely receives 300 lire yearly. Although in the diocese the stipend of one Mass is one lira, nevertheless, no permission having been sought from the Holy See or from the bishop, he celebrates only 60 Masses yearly, saying that, the revenues having been diminished, the Masses are diminished. - Does he act rightly?

R. Ioannes does not act rightly. For he can still celebrate the constituted Masses with a suitable stipend, according to the diocesan tax. But if he were still receiving a lesser quantity, so that the Masses could not be celebrated even according to the diocesan tax, then he would act more advisedly by recurring to the bishop, who can settle the matter as if by the judgment of a good man. More advisedly, since Doctors are not lacking who teach that in such a case the Holy See is not to be approached; while others judge that reduction can be made only by the authority of the Roman Pontiff; and others think that reduction can be made also by one's own authority, for no one can be compelled to celebrate Mass without a just stipend. Add that the bishop will also be able to use those faculties which are accustomed to be communicated to Ordinaries in this matter. D'Annib. ed. 3.ª p. 3. n. 75, case seq.

32. Commutation of a pious legacy. - Armandus left a rich legacy of 500,000 lire for alms to be distributed each day among the poor of the place of his birth. Since there are few poor there, and there are no religious communities, the son and heir of Armandus asks the Ordinary to be willing to commute this legacy, so that the money may be spent in the foundation of a monastery of nuns, who would furnish assistance to the sick of the place, and in a public school would teach girls gratuitously and instruct them in a Christian manner.

Q. 1. Is it lawful to extinguish or moderate pious legacies, and to whom is this lawful? 2. What as to the case?

R. To the 1st. 1. Pious legacies generally are some personal, some real, some mixed. Personal are those which the deceased, no estate having been designated, ordered to be furnished by the heirs. Real are those which he imposed on an estate taxatively, that is, because the testator obligated the estate alone for the legacies to be furnished. Mixed are those which he imposed on an estate demonstratively, that is, because the testator obligated it before other things for the legacies to be furnished. - Personal legacies obligate the heir to the extent of the inheritance, although afterward he has sold the hereditary goods. Real legacies adhere to the estate, and with it pass to a third and fourth, etc., possessor. Mixed legacies obligate the heirs as personal legacies do, and a third possessor of the thing as real legacies do. - Moreover, personal legacies are extinguished when all hereditary things, without fault of the heirs, have been destroyed. Real legacies are extinguished when the estates to which they adhered have been destroyed. Mixed legacies, when the estate has been destroyed, survive insofar as the inheritance is equal to paying. Cf. Bened. XIV. de Syn. l. 13. c. 25. n. 31.

2. It is lawful for pious legacies to be moderated: 1. By a just commutation of the will of those who left them. This, as many judge, is lawful to Ordinaries, as delegates of the Apostolic See. But in Italy and where the Tribunal of the Fabric of St. Peter is in force, bishops are not accustomed to use this right. Trid. s. 22. C. 6. de R.; S. Alph. l. 3. n. 931; Barbosa De Off. et Pot. episc. p. 3. Alleg. 83. n. 5; Collect. in Conc. Trid. in s. 22. C. 6. de R.; De Luca ad Trid. Disc. 21. n. 2. By interpretation, for example, if relatives of the founder, or the beneficiary, or chaplains labor under want. At present, however, Ordinaries are forbidden to reduce "any burdens of Masses, either imposed after the Council (of Trent), or in the threshold of the foundation, unless it was expressly provided in the erection of the benefice itself that the bishop may reduce the burden enjoined," Urban VII, Innocent XII, Decr. Nuper 21 June 1625, 23 Dec. 1697; La-Croix l. 6. p. 2. n. 63; Bened. XIV. de Syn. l. 5. c. 10. n. 2. But since this decree derogates from preexisting law, C. 12. de Constit., and from the rights of bishops, it must be limited to reductions of Masses, and those perpetual. Wherefore it is still whole for bishops to moderate other legacies, for example, of alms, dowries, etc., and legacies of Masses for a short time. S. Alph. l. 3. n. 381; l. 6. n. 331. d. 3; La-Croix l. 4. n. 855. 3. When justice itself demands it, whenever the revenues of estates no longer suffice for satisfying the burdens, either because the revenues have been diminished, or because the stipends have been increased, if a stipend had been fixed. For if the founder fixed no stipend, he is understood to have willed the customary one for the time and place. In this third case some think that reduction can be made only by the authority of the Supreme Pontiff, namely as regards things left in the very threshold of the foundation, or after the Council of Trent; others say that it can also be made by one's own authority, for no one can be compelled to celebrate without any or without a just payment; others say that the matter must be dispatched by the judgment of the Ordinary, as of a good man. La-Croix l. 4. n. 855; Lugo de Sacram. l. 5. c. 12. q. 9. n. 97, 98; S. Alph. l. 6. n. 331. d. 2; I. M. 1067, 1068; A. S. S. v. 3. p. 374 seqq.

3. Whenever there is place for moderation of legacies, they ought so to be moderated that the least detriment possible should thence be taken by him who left them. Wherefore first the remaining pious works must be deleted, the number of Masses being left intact, S. C. C. apud Fagnan. in C. Ex parte n. 34, unless either the mind of the testator persuades otherwise, or these burdens cohere with other estates. Bened. XIV. de Syn. l. 13. c. 25. n. 23. But when it is altogether necessary to restrain the number of Masses, if some are to be celebrated with chant, and others without chant, one must begin from the former. S. C. C. apud Bened. XIV. l. c. n. 34. Finally, the reduction ought to be computed according to the alms of a manual Mass in accordance with the diocesan tax. S. C. C. 3 Feb. 1725. And if the revenues afterward increase, the number of Masses must be increased, or restored, with proportion preserved. Instr. S. C. C. apud Bened. XIV. l. c.

To the 2nd. It seems that the bishop can commute the aforesaid legacy, at least by legitimate epikeia, interpreting the will of the testator. For first, the testator left a rich legacy, and the poor of that place are few. Wherefore, if the alms left were distributed among them, so great a sum of money would be spent with plainly minimal utility. Besides, the proposed work is far better, and looks more to the common good of that place. Moreover, the poor are not altogether frustrated of the legacy left; for the daughters of the poor, and the sick poor, enjoy it. St. Alphonsus, treating l. 3. n. 931. d. 2 concerning the causes on account of which the bishop may be able to commute last wills, says: "A third cause is, if the legacy has been made for a use not so necessary; for then the bishop can commute it into another pious use more necessary to the same church; indeed also to another fruitful use, if the cause is very grave, and the mind of the testator is thus presumed." I. M. 1038.