VII. On Testament

What are testament, codicil, legacy, fideicommissum? Testament, which according to the etymology of the name is the same as a testification of the mind, according to the thing signified is: A lawful declaration of the will concerning what someone wishes to be done after death concerning his things, with the direct institution of an heir. So according to Roman Law. - A lawful declaration of the will, i.e., a legitimate disposition of the will, and one congruent with law. Therefore a testament properly is not a contract, but an act approaching donation. Concerning what someone wishes to be done after death; for a testament is not only made on account of death, but also first acquires its force through the death of the testator, according to that saying of the Apostle to the Hebrews 9:16, 17: Where there is a testament, the death of the testator must intervene. For a testament is confirmed among the dead; otherwise it is not yet valid while he who has testified lives. The faculty of making a testament is from the law of nature itself; otherwise there would no longer be any care for preserving and increasing goods acquired by one's own labor or received from another, and for rendering them stably fruitful.

Gal. 4:7; Gen. 25:5; Job 42:15. Cf. n. 1042. - With the institution of an heir; for by this a testament differs from other last wills, namely from a codicil, legacy, and fideicommissum, in which no heir is per se and directly instituted. - Inst. 1. 2. t. 10; L. 919. A codicil, or little codex, is the supreme will of the deceased, less solemn, outside a testament, concerning what someone wishes to be done after his death, without the direct institution or nomination of an heir to whom the inheritance is immediately owed, so that, apart from the institution of an heir, the testator may be able to dispose of his goods in other ways, e.g., by committing legacies to the heir, or fideicommissa, etc. C. A. 553. But a codicillary clause is a clause inserted into a testament, by which it is declared that if the testament is not valid because of some defect, nevertheless it ought to be valid by force of the codicil. For a codicil five witnesses sufficed, even not summoned, and even women. - L. 919 ff.; Inst. 1. 2. t. 25. A legacy is a certain donation left by the deceased in a testament, and to be furnished by the heir. L. Legatum 36 de Legatis etc. Dig. A donation of a certain kind, for properly it is not a donation, since it is not transacted immediately between the giver and the acceptor. To be furnished by the heir; for a legacy is a certain particular law spoken to the heir, and therefore it is called a legacy: which is from lego, whence lex is derived. To be furnished by the heir, namely after the death of the testator. Left by the deceased to the legatee, to whom therefore the ownership of the thing passes immediately from the testator, although its possession is first with the heir, and the thing must be handed over by the testamentary heir. Inst. 1. 2. t. 20; C. A. 535; C. B. 1939. Fideicommissum is so called because the testator commits his supreme will to the faith of the first instituted heir, so that he afterward gives back the inheritance, either whole or in part, to another. Hence a fideicommissum is a mediate substitution of an heir; mediate, namely, of another after the first. At least two grades of succession must be instituted in order to have it, but the institution can also be of a second and further heir. C. I. 899; C. G. 896; C. A. 608, 609; C. B. 2100. But immediate substitution is had when someone names an heir in such a way that, if he cannot or will not enter upon the inheritance, another is heir in place of the first, who is instituted immediately by the testator himself, and not, by mediation of the prior one, from whom he receives the inheritance, as in mediate substitution. Mediate, indirect substitution is called fideicommissary substitution. Immediate and direct substitution is called vulgar substitution. C. I. 895; C. G. 898; C. A. 604; C. B. 2096, 2097; C. L. 1858 ff., 1866 ff. A fideicommissary institution is distinguished from a fiduciary institution insofar as in the former the restitution of the inheritance is committed to the faith of the heir openly, or in the testament itself; in the latter, secretly, or privately. Inst. 1. 2, tt. 15, 16, 23, 24. According to C. I. 759, "a testament is a revocable act, by which someone, according to the rules established by law, disposes, for the time when he will have ceased to live, of all his substances, or part of them, in favor of one or more persons." Almost the same according to C. G. 895; C. H. 667, 668, 764; C. L. 1739, 1794, 1839. - Hence the institution of an heir is not necessary, and the distinction between testament and codicil has been removed. It is otherwise, however, according to C. A. 552, 553; C. B. 1937, 1939. Properly, an heir is one who is instituted in succession to the whole patrimony, or to a quota part of it; not if only some particular object is left to him, C. B. 2087. Likewise mediate, or fideicommissary, substitution has been taken away, C. I. 899, 900; C. G. 896; with a certain determined case excepted according to C. G.

He resolves: A testament is a personal act, which cannot be left to the will of another. C. L. 1740. The inheritance devolves upon the heir from the death of the testator, neither before nor after. Not before, because of a living person there is as yet no inheritance; not after, because the heir continues the person of the deceased, and, by fiction of law, is the same person with him. Hence if the heir enters upon the inheritance later, the entry has retroactive force from the moment of the death of the deceased; and if he dies before entering upon the inheritance, he transmits his right to his own heirs. C. I. 933; C. G. 777; C. A. 531, 532, 533, 536, 537, 545, 797; C. H. 657, 661; C. B. 1942; C. He. 537, 538; C. L. 2011. Hence in an inheritance a day from which the inheritance ought to begin, or on which it ought to cease, is regarded as not having been added. C. I. 851; Inst. 1. 2. t. 14. § 9; cf. C. A. 695.

Of how many kinds is a testament? By reason of the disposition of goods, according to C. G. 1002, 1003, 1010, testamentary disposition is threefold: universal, by universal title, by particular title. It is universal when the testator leaves to one or more persons the universality of his goods. By universal title, when the testator leaves to someone a quota part of all goods, half, a third; all immovables, all movables, or a quota part of these. According to C. I. 760, both these dispositions are called by universal title. By particular title is any other disposition of some determined thing, C. I. 760; C. G. 1010. The first and second disposition, according to C. I. 760; C. H. 660, 667, 668, 768; C. He. 483, confer the quality of heir; the third, that of legatee. According to C. G. 1002, that threefold disposition can be made under the designation of institution of heir or legatee; and thus an heir or legatee can be universal, by universal title, and by particular title. C. G. 1003, 1010, 1014. C. L. 1736.

By reason of form, according to Roman Law, testament is distinguished: 1. Solemn, in which all the conditions prescribed by the laws are observed. But it is twofold: first, in writing or closed, which, marked with a seal, is handed over to be subscribed by seven witnesses, suitable, male, pubescent, etc., with whom the testator subscribes, if he can; but if he cannot, an eighth witness must be added. The other, open, which is made before seven witnesses, whether in open writing or by living voice; whence it is also called nuncupative. 2. Privileged, which is valid without the solemnities. Such is a testament made by a soldier, or by another in time of plague, or in other circumstances of this kind. Inst. 1. 2. tt. 10, 11; L. 920, 926. Likewise by reason of form, according to C. I. and C. G., testament is threefold: 1. Holographic, which for validity is written entirely by the hand of the testator, with indication of year, month, and day, and with the placing of the name. C. I. 775; C. G. 970. According to C. I. it is expressly required that the signature of the name be placed at the end of the dispositions. The note of time can be made in full letters or in numbers in any part of the testament. The note of place is not necessary. Any paper, even if not sealed, suffices; nevertheless, if the matter is brought before the judge, a fine in France of 30 francs must be paid by the heir. A holographic testament, before it can be committed to execution, must be presented to the judge in the tribunal of first instance; but the judge, after sufficient examination, will order that it be kept with some notary. But this form is entirely accidental. C. G. 1007. Likewise, according to C. I. 26, 912 ff., a holographic testament, at the instance of him whose interest it is, is deposited with the notary of the place in which the succession has been opened, in the presence of the praetor and two witnesses, and the due instrument of the matter is drawn up. Succession is said to be opened from the point at which the right of the heir in the things of the deceased begins. C. He. 560. It is not the same as the opening of the testament, namely when the testament becomes of public right. Gousset on a. 970. Cf. C. He. 505, 556; C. L. 2009 ff. 2. Public, or solemn, is written by one notary before four male witnesses, adults, etc., or by two notaries before two witnesses, and is subscribed by the testator, the notary, and the witnesses. And if the testator cannot subscribe, mention must be made in the acts, and also of the cause by which he is prevented from subscribing. The testator must declare his will before the witnesses to the notary, or notaries if there are two, who write it; and according to C. I. the notary can use the work of a secretary for writing. Then it must be read to the testator before the witnesses. Finally, mention must be made that it was dictated by the testator, written by the notary, and read to the testator. C. I. 776 ff.; C. G. 971 ff. - Cf. C. L. 1914 ff., where several formalities of a public testament are established; if any of these is lacking, the testament will be without effect. 3. Mystic or secret, which the testator, closed and marked with a seal, hands over to the notary before six witnesses, asserting that this is his testament, written by himself or by another, and subscribed by himself. This attestation must be written over the codex of the testament, and subscribed by the notary, witnesses, and testator. If the testator could not subscribe the testament, mention must be made of this, and another witness is added besides the six required. C. G. 976 ff.; C. I. 782 ff. But according to C. I. 783 only four are required; and if the testator cannot write, the same is observed as in a public testament. If it was written by another, even only in part, according to C. I. the testator must subscribe the testament on each page, and declare that he has read the testament. If a secret testament, because of some defect, is not valid as such, it can nevertheless be valid as a holographic testament, if it has its required conditions. C. H. 715.

Cf. C. L. 1920 ff., where several formalities of a closed testament are established; if any of these is lacking, the testament will be without effect. Those who can write can make a holographic testament; those who can speak can make a public one; those who can read can make a secret one. The deaf-mute and the mute can make a testament by holographic or secret testament. C. I. 775, 778, 785, 786; C. G. 971, 972, 978, 979; C. H. 688, 695, 697, 698, 708, 709. - L. 920. There are besides privileged testaments, which have a special form. These are: 1. The testament of a soldier, and of those who by office are assigned to armies. Cf. C. I. 799-803; C. G. 981-984; C. L. 1944 ff. 2. Testament in time of plague. Cf. C. I. 789, 790; C. G. 985-987. 3. Testament made at sea. Cf. C. I. 791 ff.; C. G. 988 ff.; C. L. 1948 ff. 4. Public testament of rustics. Cf. C. G. 974. 5. Testament made in a foreign region. C. L. 1961 ff. - L. 926, 929; C. I. Dispos. etc. initio 8, 9. According to C. H. 676, a testament can be holographic, open, or closed. A holographic one, as to validity, must be written wholly on stamped paper corresponding to the year in which it is made, and subscribed by the testator, with indication of year, month, and day, aa. 678, 688 ff. But by the law of July 21, 1904, stamped paper is no longer required. An open testament is made before a notary and three suitable witnesses, aa. 679, 694 ff. - A closed testament can be written by the testator himself or by another, on ordinary paper, with the place, day, month, and year noted; it is subscribed by the testator at the end, and each page is also initialed, if he himself writes it; but if another writes it, then one's own signature must also be placed on each page. Both in this closed testament and in a holographic one, words blotted, corrected, or written between the lines must be noted by one's own signature. This testament, wrapped in another paper, closed and provided with a seal, the testator hands over to the notary before five witnesses, declaring it to be his testament; the act of this matter is written by the notary on the outer part of the testament, and is subscribed by him, by the testator, and by the witnesses, aa. 680, 706 ff. But special testaments are had: military, aa. 716 ff.; maritime, aa. 722 ff.; made in a foreign region, aa. 732 ff. According to C. A. and C. B., a holographic testament also is admitted. - According to C. A. 577, 584, a testament can be made judicially or extra-judicially, in writing or by voice, written or nuncupative, with or without testimonies. Cf. aa. 578, 590, 598, 601. According to C. B. 2231 ff., 2249 ff., 2259 ff., a testament in ordinary form can be made: 1. Before a judge, or before a notary with the assistance of legitimate witnesses, either by verbal declaration or by consignment of a written disposition. 2. By a declaration written by one's own hand, subscribed by the same testator with indication of place and day, unless he is a minor. But extraordinarily, namely when death is imminent, a testament, in defect of a judge or notary, can be made before the syndic of the Commune, or at sea before three witnesses. Once the succession has been opened, the testament must be sent to the tribunal of succession. According to C. He. 498 ff., a testament can be made in public and holographic form. The public form needs a public official, who writes it, and two witnesses. The holographic must be wholly written and subscribed by the hand of the testator, with indication of the place, year, month, and day on which it was written. - In a certain extraordinary case, in which the testator cannot use one of the prescribed forms, it can be made in oral form, by declaring his own will to two witnesses, who will take care that it be recorded in a legitimate written document. But this testament loses its force if, fifteen days having elapsed from the time it was made, the testator is found to be in a condition to use the ordinary form. A succession contract is admitted, however, which for validity requires the form of a public testament. According to C. L. 1751, 1752, a testament by signs or by monosyllables only is null. And the testator cannot forbid that a testament whose nullity has been declared by law be impugned. According to C. I. 761; C. G. 968, 1097; C. L. 1753, a testament cannot be made by two or more persons in one and the same act, neither for the utility of a third person, nor by reciprocal disposition. According to C. A. 583, 1248; C. B. 2265 ff., a common testament between spouses is admitted, which can be holographic; it is written and signed by one, while by the other it is declared to be valid also for his own testament, and this declaration is likewise subscribed by him. If an heir of his own accord, knowingly and prudently, has fulfilled a testament not made according to law, the testament is now regarded as valid. C. I. 1310, 1311; C. G. 1339, 1340.

What are the conditions required for testaments? In order that a testament be valid and firm, it is required: 1. That it have the conditions required for gratuitous contracts, and especially free and spontaneous consent. 2. That the disposition of goods be made according to the reservation or legitime assigned by law to the heirs. 3. That it not be made by one incapable of testating, nor in favor of one incapable of receiving, or of succeeding to the rights of the deceased. 4. That the substantial formalities prescribed by law be observed. L. 921; C. L. 1748, 1749.

What kind of witnesses are required in testaments? - According to Roman law they must be male, pubescent, free, not deaf, not mute, not blind, not intestable by law, not heirs from the testament, nor domestics of the testator or of the heir; nevertheless legatees are not excluded. Inst. 1. 2. t. 10. §§ 6, 9, 10, 11; L. 919. According to C. G. 971, 975, 980, there are required males, adults, subjects of the republic, enjoying civil rights, not clerks of the notaries who draw up the act, not legatees or heirs, nor their blood relatives or relatives by affinity within the fourth degree inclusive, that is, within the second according to the canonical computation for the transverse line; yet in a mystic testament legatees or their relatives are not excluded. For those who are excluded from the office of witnessing are rejected only for a public testament. According to C. I. 788, even foreigners residing in the kingdom are admitted among the witnesses, and only practicing notaries' clerks and secretaries are excluded, and those to whom the exercise of civil rights has been interdicted. By the law of Dec. 9, 1877, women also are admitted. - C. A. 591-597; C. H. 681 ff.; C. B. 2234 ff.; C. L. 1966.

Whether testaments for profane causes, lacking legal forms, are valid in the forum of conscience? It must altogether be affirmed according to C. He. 519, 520 ff. It seems it must be affirmed according to C. I. For art. 804 by no means establishes the nullity of these testaments by the law itself, but only asserts that the constituted formalities are to be observed under penalty of nullity. Hence, with no sentence of a judge intervening, these testaments are valid in conscience. It is confirmed from art. 1311, where the validity of a testament is openly admitted. It also seems it must be affirmed according to C. G. 970, where concerning a holographic testament it is said that it will not be valid unless the established forms have been observed; and in art. 1001, likewise, it is said that the established formalities of testaments must be observed under penalty of nullity. Likewise it seems it must be affirmed according to C. A. 601, since, if even one prescribed formality has been omitted, the disposition, it is said, will be invalid. Similarly, according to C. H. 687, a testament, it is said, will be null if the prescribed formalities have not been observed. Cf. also a. 705 coll. a. 715. It must also be affirmed according to C. B. 2231 ff., where the making of a testament is altogether distinguished from the testament itself, and according to C. L., which likewise distinguishes the testament from its form, 1739, 1919.

But when a sentence has intervened, which someone can legitimately invoke, one must stand by it. Cf. 936; L. 927. It is useful here to note the disposition of C. I. 1311: "The voluntary execution of one testamentary disposition after the death of the testator includes renunciation of opposing defects and any other exception." Here it is supposed that the defects are not unknown. - Gousset 795 ff.

Whether testaments for pious causes are valid if they lack legal forms? Resp. Affirmatively, and this opinion is most common and certain. The reason is 1. because it is established from Canon Law, C. Indicante 4, C. Cum esses 10, C. Relatum 11 de Testam., etc. 2. Because pious causes pertain to the Church and are subject to her jurisdiction. But the Church is free and immune from the civil power in all those things which directly fall under her jurisdiction. Hence it was thus established by Trent: "The Bishops, also as delegates of the Apostolic See, in cases conceded by law, are to be the executors of all pious dispositions, both in last will and inter vivos." S. 22. C. 8 de R. 3. The S. Penitentiary, having been questioned many times, responded that this opinion must be adhered to. And indeed the Sacred Roman Congregations and the Supreme Pontiff constantly embrace this opinion in practice. - Hence the contrary opinion in this matter cannot be regarded as truly probable. L. 922; D'Annib. p. 2. n. 339, ed. 3; Gousset 793; E. M.

Note: Testaments for pious causes therefore need no solemnity established by civil laws; but it is necessary only that the will of the testator be known with certainty. Hence, if the testament has been made orally, two or three witnesses suffice. C. Relatum cit. But the witnesses can be whoever are legitimately able to testify. But if a writing of the testator exists, it indeed suffices for the validity of the testament or pious legacy. Indeed, in the forum of conscience, a nod or other sign of the testator suffices, without any witness, provided nevertheless that the will of the testator is certain. Hence a testament begun and not perfected, because of the intervening death of the testator, is valid as regards the pious legacies already expressed in it. L. 922, 923, 924, 925, 937, 940.

Whether a testamentary disposition under a condition and to a day is valid? Resp. A testamentary disposition can be made under a condition. C. I. 848; C. G. 1040; C. H. 790; C. A. 695; C. He. 482; Inst. 1. 2. t. 14. § 9. - Impossible conditions, or those contrary to good morals, or contrary to the laws, are regarded as not attached. C. I. 849; C. G. 900; C. H. 792; C. L. 1743, 1745; Inst. 1. 2. t. 14. § 10. Cf. C. A. 696-699, 712; L. 930. - According to C. He. 482, immoral or illicit burdens and conditions render the disposition null. Burdens and conditions without sense or merely vexatious for third parties are regarded as not attached. According to C. L. 1746, a cause contrary to law produces the nullity of the disposition. If the condition is one of not doing something, security must be furnished by the heir. C. I. 855. And this holds for an inheritance and for a legacy. - If the condition is suspensive, i.e., when the validity of the testament depends upon fulfillment of the attached condition, the disposition is null if the heir dies before its verification.

But if the condition is resolutory, i.e., when the execution of the testament is suspended until the condition obtains its effect, but by no means the value of the testament, then the heir or legatee acquires a right before the fulfillment of the condition itself, a right to be transmitted to his own heirs even before the condition has been fulfilled, provided it is fulfilled. C. I. 853, 854; C. G. 1041; C. H. 759, 799. Cf. C. A. 701 ff.; C. L. 1822 ff. No account is taken of a day added to the institution of an heir, by universal title, from which day he ought to begin or cease, C. I. 851; C. L. 1747; Inst. 1. 2. t. 14. § 9. Cf. 1025. A disposition by universal or particular title is null under the condition that someone call another as heir or legatee if he himself is called by that other. C. I. 852; C. H. 794; cf. C. A. 543; C. L. 1509. Contrary to law, according to C. I. 850; C. H. 793, is a condition which prevents nuptials, whether first or subsequent; unless it concerns some pension, habitation, use, or usufruct to be furnished during celibacy or widowhood; and likewise unless the condition of preserving widowhood for obtaining the inheritance has been placed by the spouse upon the surviving spouse. - According to C. A. 700, the condition likewise of celibacy is regarded as not attached.

The condition of widowhood is permitted, however, to a surviving spouse having children. So also according to C. L. 1808. By Roman Law if that condition is imposed on a widow, it is valid, by whomever it is imposed. Auth. Cui relictum C. de Ind. vid. toll. But a legacy left to a girl so that she not marry is owed to her even if she marries. For that condition is invalidated by law, because it is greatly in the interest of the republic that offspring be increased. L. Quoties 22 ff. de Cond. et demonstr.; L. Ambiguitates 2 C. de Ind. vid. toll. But by Canon Law both conditions, of widowhood and of celibacy, seem to have to be sustained, whether imposed by a spouse or by another person, whether it concerns a prestation or another disposition, on account of the honesty of the state of widowhood and the greater perfection of virginity. - L. 930 dub. 7; Laymann de Testam. c. 10. n. 13.

Whether substitutions and fideicommissa oblige in conscience?

Immediate substitutions, also called vulgar substitutions, by which another heir or legatee is substituted for an heir or legatee, if the first does not enter upon the inheritance or legacy, are valid according to C. G. 898; C. H. 774 ff.; C. A. 604; C. B. 2096 ff. The same is held according to C. I. 895, if the first heir or legatee does not wish or cannot accept the inheritance or legacy. According to C. I. 896, one substituted to him who was unwilling to be heir is understood to be substituted to him who could not be, and conversely; unless the contrary will of the testator is established. It is otherwise according to C. A. 605. Hence, as regards substitutions of this kind, there can be no difficulty from positive laws for the forum of conscience. Thus substituted persons are bound to fulfill the burdens which were imposed on those into whose place they are substituted, unless they are presumed to have been imposed only on those first called. C. I. 897. According to C. A. 608 ff., 618 ff., fideicommissa remain entire, and accordingly both vulgar substitution and fideicommissary substitution are admitted.

According to C. H. 781 ff., fideicommissary substitutions, by which the heir is burdened to preserve the whole or part of the inheritance and transmit it to another, will be valid and will obtain effect always, provided they do not progress beyond the second degree, or are at least in favor of a person living at the time of the death of the testator. But they can never burden the legitime; they must be express, and in no way fiduciary. Their nullity, however, does not harm the institution of the first heir. According to C. L. 1866 ff., a fideicommissum is approved only for descendants in the second degree, or for the children of the testator's brothers. Likewise, the nullity of a fideicommissary substitution does not bring about the nullity of the institution or legacy.

According to both C. H. 785 and C. L. 1741, secret testamentary dispositions of giving goods back to another heir will have no effect. According to C. He. 488 ff., the disposer can oblige the instituted heir to transmit the inheritance to another substituted heir. Transmission, unless there is a contrary disposition, is made at the death of the instituted heir, who acquires the inheritance like any other heir, but with the obligation of transmission; however, this obligation cannot be imposed on the substituted heir. And the same holds for legacies. According to art. 531, fideicommissary substitution is null in relation to the legitimate heir if it injures the legitime. According to C. B. 2100, 2108, 2109, 2113 ff., fideicommissary substitution is admitted without limit. Nevertheless, a substitution regularly has no effect if, after thirty years have elapsed from the devolved inheritance, the fact which ought to initiate the substitution does not take place. The heir has only restricted ownership of the inheritance, namely so that he may preserve and give it back to the substitute; he is almost its usufructuary, unless the testator has rather restricted the right of the substitute. According to the same C. B. 2190, 2191, both vulgar and fideicommissary substitution are admitted also as regards legacies. According to C. G. 896, 897, 1048-1050, fideicommissa, or mediate substitutions of an heir, are prohibited, also called fideicommissary substitutions, by which namely the heir or legatee is ordered to preserve and give back to another; they will be null even with respect to the donee, legatee, and heir. Hence not only the burden of giving back, but even the donation itself, the legacy, and the inheritance are subjected to nullity. Exceptions are those dispositions by which parents leave their goods, or a part of them, to one or more of their children, with the burden that they give back those goods to their descendants, nevertheless in the first degree according to art. 1048, and also in the second degree according to the law of May 17, 1826, whether born or to be born. But this law of 1826, which permitted more, was abrogated May 7, 1849. The same faculty is given to a brother of leaving goods, of which he can dispose, to one or more brothers, with the burden of giving the same back to their children born or to be born, likewise only in the first degree. According to C. I. 899, 900, any disposition by which the burden of preserving and restoring to another is imposed on an heir or legatee is a fideicommissary substitution, which is prohibited by law. Its nullity brings no prejudice to the validity of the institution of the heir or of the legacy; but the substitution, even in the first degree, lacks effect: namely legal effect; not every effect, even in the forum of conscience; since it is simply prohibited by law, whence it is indeed null, but not by full right, or by the very fact. But according to C. I. 832, 902, 932, it is permitted to leave an inheritance or annual prestations, on account of a pious cause or a cause of public utility, for feeding the poor, educating boys, dowering girls, etc., any heir being instituted, e.g., his own future firstborn, or another's. Likewise C. H. 788; C. L. 1872 permit imposing on an inheritance even a perpetual burden of paying a pension annually in favor of some pious cause. Likewise according to C. I. 901, ownership can be left to one person and usufruct to others; but by no means successively to several, but only to those first called after the death of the testator. So also C. L. 1570. Moreover it must first be noted that there is no substitution prohibited by law if there is no command and burden of preserving and giving back. A simple request, and without an imposed burden, does not constitute a prohibited substitution. Moreover the burden of preserving is necessary. Hence a burden only of giving back does not again constitute a prohibited substitution. For then the instituted heir is in reality not an heir, but merely an executor of the testament. Nor is there a substitution, nor a fideicommissary or fiduciary substitution, but only a certain simple trust in a person, a simple fideicommissum made to him, if what is left to him must be restored to another, either immediately or after some time. Of preserving, namely absolutely; not if he has prohibited alienation by donation, outside the family, etc. In addition, a burden of giving back to a third person is required, namely of giving back after the death of the instituted heir. Hence neither is a burden of giving back from a day, e.g., to Caius after he has reached puberty, ascended to sacred orders, etc., after ten years, etc., a prohibited substitution, but a certain legacy under a condition, or to a term, which is approved by the law itself. C. G. 1040, 1041, 1186; C. I. 854, 856, 857, 1173, 1174. For it is not what the law intends to prohibit, namely that someone by his testament should wish to determine future successions twice or several times, or even indefinitely. Cf. C. I. 901. And hence it is clear that substitution is not properly a conditioned disposition, but a disposition under a mode. Hence the named heir is instituted truly and absolutely as heir, and ownership is transferred to him, with the obligation of fulfilling the imposed burden; if this is not fulfilled, ownership is not lost, but he can always be compelled to fulfill it. Gousset on a. 896; Rogron on the same article. According to C. I. 829, it is permitted to entrust the name of the true heir or legatee to a fiduciary heir, provided that person is not incapable. But it will be grave for the fiduciary heir to betray the trust. Inst. 1. 2. tt. 23, 24; C. B. 2103 ff. It must also be noted that, generally, it is established that the inheritance or legacy is adjudged to him who is named in the testament. Nor is proof admitted that the person called in the testament is merely apparent, under whose name another person is designated, notwithstanding any expression of the testament. But this is not applied to the case in which the institution or legacy is impugned as made through an interposed person to one incapable. C. I. 829. From what has been said it appears that the preceding law is at least not unjust, and accordingly there is no reason why every obligating force should be taken away from it, per se and commonly speaking; although, as is clear from the very tenor of the law, a testamentary disposition made against such a law cannot be regarded as void by the law itself. Hence, if someone directly instituted as heir by a fideicommissary substitution possesses the inheritance, he will be able to retain it in conscience, and will be able to invoke the rescission of the substitution. Likewise if a substituted heir has already obtained the inheritance by the aforesaid fideicommissary disposition, he will be able to retain it in conscience until he is compelled by the judge to restore it. But if someone is instituted heir by fiduciary substitution, from a prior promise made to the testator, or a pact, of transmitting the inheritance immediately or after a certain time to a third person or to a pious cause, he certainly will not be able to retain it in conscience. For he is altogether bound to execute the trust he gave, if it is legitimate. Otherwise he must renounce the inheritance, so that it may come to the intestate heirs. L. 351, 952; E. M.

What of the revocation and caducity of testaments? Revocation of a testament is had on the part of the testator himself. A testament, under whatever form it has been made, can always be revoked at the nod of the testator, because a testament by its nature is an essentially revocable act; consequently the testator retains ownership of his goods until death. And this holds even though the testator has promised or written that he will not change the testament. C. I. 916; C. A. 552, 695, 716; C. H. 737; C. L. 1754; C. He. 509, 510; C. B. 2253.

Hence by positive Law the renunciation and alienation of a future inheritance and all pacts concerning future succession are prohibited; and by private agreement testaments cannot be changed into pacts. C. I. 954, 1118, 1460; C. G. 1130, 1600; C. A. 879, 1383; cf. ib. 602, 1249; L. 932, 933, 934. Nevertheless C. G. 1082 admits succession pacts under the form of a contractual institution of the heir of future spouses or of their future children. C. A. 602, 1249 admits succession pacts only between spouses. C. B. 1941, 2274 ff. admits succession pacts among all, as regards institution of an heir, legacies, and burdens. Moreover no one can in any way renounce the liberty of revoking or changing testamentary dispositions; any contrary clause or condition lacks effect. C. I. 916.

"Such pacts are odious, and full of dangers because of the snares which are prepared for the life of him concerning whose goods the pact is made." L. 934. Exception: 1. Unless the renunciation is made, according to ancient law, in favor of a religious community; for then every presumption and danger of snares ceases. Cf. 955, 1010; unless by reason of the Constitutions of a religious order someone must dispose of all goods and rights acquired and to be acquired, and this in favor of the pious community or of a certain person; unless a pact is made concerning the inheritance of an uncertain person, e.g., if any inheritance comes to me while I live, let it be yours; the danger likewise ceases. L. 934; Lugo Resp. Mor. 1. 4. d. 4, 5. 2.

According to Roman Law a testament confirmed by oath cannot be revoked. Gur. Cas. 847. 2. According to Canon Law a professed religious who, before the emission of simple vows, has disposed by testament concerning ownership of his goods, cannot in the least revoke or change the disposition without an indult of the Apostolic See. S. C. EE. et RR., Dec. 20, 1861, Bizzarri Coll. ed. 1885, p. 151. But according to the Norms of the same S. C. for New Institutes of simple vows, n. 122, for making and for changing a testament after vows, Apostolic permission is needed; and in urgent cases the permission of the Ordinary or Superior General suffices, or even, if it cannot be done otherwise, of the local Superior.

But a testamentary disposition once revoked vanishes and remains without effect, even though the new disposition cannot obtain execution. C. G. 1037; C. I. 919. The caducity of a testament properly is had on the part of the heir. Properly a testament is caducous when testamentary dispositions, although valid from the beginning, nevertheless become infirm on the part of the heir, if he is unwilling or unable to enter upon the inheritance.

But legacies remain, although the testament becomes caducous. C. I. 853, 854, 890, 891; C. G. 1039, 1040, 1041, 1043; C. A. 703-705; C. L. 1759. Cf. C. H. 689, 703, 704, 719, 720, 730, 731, 740, 764. Cf. C. I. 925. Revocation of a testament can be made in two ways: expressly and tacitly. Expressly, or 1. by destruction of the testament; 2. by an act drawn up before a notary, by which the change of will is expressed; 3. by restitution of the testament made to the testator by its public depositary; 4. by a new testament contrary to the prior one: but then the revocation is not judged entire unless the dispositions of the new testament are contrary to all the dispositions of the prior one, and all are then valid: but if they are contrary, the most recent are valid.

C. I. 916 ff.; C. G. 1035 ff.; C. B. 2254 ff.; C. He. 511. Tacitly, by donation, sale, exchange, destruction, or any disposition of the thing bequeathed, by which the change of the testator is manifested. C. I. 892, 893; C. G. 1042; C. He. 511. Any alienation made by the testator, whether of the whole or of a part, of the thing bequeathed, even by sale with a pact of retro-sale, revokes the testament as regards that which was alienated, although the alienation is null, or the thing returns into the possession of the testator. C. I. 892; C. G. 1038. And the same holds if the testator has transformed the thing bequeathed in such a way that it has lost its preceding form and denomination. C. I. 892. - L. 700; C. A. 713 ff.; C. H. 738 ff., 869; C. L. 1754 ff., 1811; Inst. 1. 2. t. 17.

Whether a testament is ever broken by the law itself? - A testament is broken, or the right of the testament itself is vitiated, by the agnation of a son or descendant. For a testamentary disposition, whether under the title of universal institution of an heir, or under the title of a particular legacy, made by one who, when he made the testament, either lacked sons or descendants, or was unaware that he had them, is broken by the law itself if there exists or supervenes a legitimate son or descendant of the testator, even posthumous, or legitimated, or adoptive. And the aforesaid breaking still has place even if the son was conceived at the time of the testament, and, if it concerns a legitimated natural son, even if he had been recognized by the father before the testament and legitimated after the testament.

But if the son or grandson has died while the testator is living, the testament is confirmed. But the testament is not broken, or deprived of its force, if the testator provided for the case that sons or their descendants existed or would supervene. C. I. 888, 889. - L. 950; C. A. 777, 778; C. L. 1760, 1814, 1815; Inst. 1. 2. tit. 17. § 5. 1; L. 1 de Iniu. ru. irr. f. test. When a testament has been broken, all dispositions in it are invalidated, and the pious legacies themselves do not remain valid from the presumed will of the testator, if the testator was unaware of existing offspring and did not hope that it would exist.

Whether each testament is valid when a double testament is found, made on the same day. Fr. Gury in Cas. Consc. n. 833, where he cites Pontas: "each," he says, "testament is valid, since each enjoys all the conditions of a holographic testament and each was made on the same day. Therefore the two heirs have an equal right. And both ought to divide this inheritance between themselves.

For it is the same as if each had been instituted heir in the same testament." Cf. C. A. 715. Cardinal de Lugo d. 24. n. 47: "When," he says, "two testaments are produced made on the same day, and it cannot be known which was later; and the same, in my judgment, will be true when two are produced without the day on which they were made; some say that both are valid and the goods must be divided; which Fr.

Molina also follows, disp. 153, par., when they are on the same day; and certainly if there are any legacies, or any other things which are prescribed in both testaments, these seem to have to be fulfilled, since as regards these the will of the testator is certainly established; which at least will be true if a codicil suffices for their value, and that testament can at least be valid as a codicil because of a codicillary clause formally or virtually placed. But as regards the other things in which those testaments are opposed, the common opinion, speaking of common law, deservedly teaches that neither testament is valid because of uncertainty, and that the inheritance comes to the intestate heirs.... Thus commonly the doctors, whom Sanchez reports and follows in the cited cap. 1, dub. 22, n. 3. Yet he limits this opinion with others, first, if neither heir should possess; otherwise the possessor is not to be despoiled in doubt. Second, unless in one testament those are instituted who, ab intestato, ought to succeed; for then that testament would have to be preferred. Third, unless one is in favor of a pious cause, because of whose favor it will be sustained." This opinion, which stands for the invalidity of both testaments, seems more probable, since this double testament shows the will of the testator suspended and not yet determined. For a testator making two testaments which are mutually opposed actually chooses neither, but is about to choose one or the other. Nevertheless the opinion which stands for the validity of both testaments does not lack its probability. Cf. 1034. C. L. 1756.

"Two tablets of a testament, written at the same time for the sake of a copy, as commonly happens, of the same paterfamilias, are produced; in one a hundred, in the other fifty gold pieces are bequeathed to Titius; you ask whether he is to have both fifty gold pieces and a hundred, or only a hundred? Proculus responded: In this case the heir must rather be spared; and therefore both legacies are by no means owed, but only fifty gold pieces." L. Sempronius 47 de Legatis etc. Dig.

What, by natural and positive law, concerning the capacity of testators? - By Natural Law all can testate, with exception only of those who are not masters of their own mind, or have been declared incapable by law, even though they are under curatorship or guardianship; and they can testate even without a curator or guardian. Those deaf and mute from birth can also testate. - L. 942; C. A. 565-567; C. H. 662. By Canon Law, professed religious cannot testate, even if they are Bishops; even if they are perpetually secularized, without a special Apostolic Indult; and likewise Bishops and clerics, as regards the revenues of benefices, except by privilege or legitimate custom. Novices, since they are still of their own right, can testate. Nor indeed is their testament broken when profession has been made, even if the monastery has been omitted in it. Nor is Trent, sess. 25, c. 16 de Reg., opposed; since there it concerns dispositions inter vivos, valid of themselves at once, but by no means testaments, which of themselves are revocable. C. 1, 2, 7-9, 12 de Testam.; Trent sess. 25, c. 1 de R., c. 16 de Reg.; C. Inscrutabili of Innocent XII, Jan. 30, 1694; L. 935, 942; Schmalz. de Testam. n. 83 ff.; Ferraris v. Beneficiatus a. 3. n. 8; C. A. 573; E. M. By Roman Law all who have the use of reason can testate, except those deaf and mute from birth, those under puberty, sons who are under paternal power, prodigals, those polluted by an incestuous and forbidden marriage, those condemned to civil or natural death, as well as professed religious. But sons of families are permitted to testate concerning peculium castrense or quasi-castrense. Inst. 1. 2. t. 12; Tit. 22 Cod. According to C. I. 762, 763, all can testate who are not declared incapable by law. Moreover, as incapable, the following cannot testate: minors before the eighteenth year; those interdicted because of infirmity of mind; those who are not of sound mind at the time when they make the testament; those condemned to prison with hard labor, Cod. poen. 32. According to C. G. 509, 903, 904, the following can testate: 1. All who can make donations inter vivos. 2. Wives, who have full faculty of testating, although they cannot make donations without the special consent of the husband or authority of the judge; for they need neither of these in order to be able freely to dispose by testament. 3. Minors from the sixteenth year can testate only concerning half the part of the goods of which adults are able to dispose. If nevertheless they exceed this quantity, the testament is valid, but can be reduced to the legitimate limits.

But those who are not of sound mind, and those interdicted, cannot testate. According to C. A. 568, 569, 574, those below puberty are incapable of testating. Those condemned to death and to hard prison cannot make any valid testamentary disposition. Minors before the eighteenth year of age can testate only nuncupatively and before a judge. After this age they can testate freely. Prodigals dispose only of half part of their patrimony. According to C. B. 104, 2229, those who are capable of contracting are also capable of testating. But one who has a restricted capacity of contracting does not need the consent of his legal representative for making a testament. A minor, after the completed sixteenth year of age, can testate. One interdicted because of infirmity of mind, prodigality, or vice of drunkenness cannot testate.

According to C. L. 1763; C. H. 663, minors before the fourteenth year of age and those who habitually or accidentally are not masters of themselves are incapable of testating. According to C. He. 467 ff., he is capable of testating who enjoys discretion of reason and is eighteen years old. For a succession contract a greater age is required. Dispositions made under the influence of error, fraud, force, or threats are null.

What, by natural and positive law, concerning the capacity of heirs? - By Natural Law, all human beings, even the insane, the deaf, the mute, slaves, indeed even a community, can be instituted heirs, unless they are specially prohibited by Positive Law. L. 943. By Canon Law, professed religious of Orders to which it is permitted to possess immovable goods in common can be instituted heirs, and the monastery succeeds in their name, unless a contrary special Constitution of the Order is present. But religious promoted to the episcopate are capable of hereditary succession in such a way that administration of the goods and advantage belong to them, but ownership to the church over which they preside. The monasteries themselves also, to which it has been conceded to have ownership in common of immovable goods, can be instituted heirs. L. 944.

On account of the special Constitutions and Rules of their Order, the Friars Minor of the observance and the Capuchin Fathers cannot be instituted heirs, and likewise professed members and formed coadjutors of the Society of Jesus in particular. Schmalzgr. 1. 3. p. 3. tit. 26. n. 96, 97. - Lugo Resp. Mor. 1. 4. disp. 4, 5; E. M. By Roman Law those condemned to death, whether natural or civil, traitors, natural and spurious children, according to the restrictions to be set forth below, are prohibited from being instituted heirs. Cf. n. 1045; L. 943, 950, 951, 952. According to C. A. 22, 538 ff., 681, those are capable of succeeding who are capable of acquiring, not only those already born, but even those only conceived. The unworthy person is excluded from the right of succeeding: one who has offended the testator; one who by force or fraud induced the testator to declare his last will. Adulterers and incestuous persons cannot reciprocally succeed to one another. - The incapable person is excluded from any inheritance; the unworthy person only from the inheritance of him whom he himself affected with some atrocious injury. According to C. H. 744 ff., 756 ff., those are capable of succeeding who are not declared incapable by law. Declared incapable are abortive children who have not prolonged life through an entire day; moral bodies not permitted by law; and those unworthy from a crime established by law. Testamentary dispositions in the last infirmity in favor of the confessor will not produce effect.

According to C. I. 2, 721, 724-728, 764-766, 890, Cod. poen. 33, the following are incapable of an inheritance from testament, who by disposition of law cannot succeed as incapable, namely: 1. Those who, when the inheritance was entered upon, had already died before, or had not yet been conceived. 2. Those who were born non-viable. Nevertheless immediate children of a person living when the testator died can receive from testament, even if these had not yet been conceived. 3. Those condemned to prison with hard labor. 4. Those who are incapable of legitimate succession as unworthy, namely: 1. He who voluntarily killed or attempted to kill him whose succession is in question. 2. He who charges the same with a crime, if the crime charged is declared calumnious in judgment. 3. He who compelled the same to make or change a testament. 4. He who prevented the same from making a testament or revoking one already made, or who suppressed or concealed a later testament, or introduced some changes into it. Cf. L. 948, 949; C. H. 673, 674. He who has been excluded as unworthy is obliged to restore the fruits and revenues received after the opened succession. - Nevertheless the unworthy person can be admitted to the succession, if he whose succession is in question has expressly rendered him capable for this by an authentic act or testament. Likewise the descendants of the unworthy person retain the right to the legitime which would have pertained to the rejected one. - The unworthy person must be repelled from succession by the office of the judge, because it is a penalty; the incapable person is prohibited by the law itself. - Cf. C. He. 539 ff.; C. L. 1776 ff. According to C. G. 25, 338, 725, 727, 762, 906 ff., 1039, incapable of an inheritance are: 1. Those who were not conceived or were already dead at the time of the death of the testator. 2. Those born non-viable. 3. The civilly dead. 4. Physicians, surgeons, health officers, pharmacists, who cared for the deceased in the last illness, as well as confessors, if the disposition was made during such illness, namely that in which the sick person dies, certain cases being excepted. Cf. C. H. 747, 752; C. L. 1775, 1769. 5. Any communities without the approval of the Prince or of the Prefect, if the disposition exceeds the sum of 300 francs. More recently, however, broader faculties have been granted to Prefects in favor of civil communities, hospitals, church fabric funds, etc., which nevertheless are not extended to religious communities. But it is self-evident that these prescriptions have no force insofar as they injure the rights of the Church. - From succession, however, the following are repelled as unworthy: 1. He who has been condemned because he killed or attempted to kill the deceased. 2. He who charged the deceased with a capital crime which has been judged calumny. 3. An adult who, knowing the murderer of the deceased, did not denounce him to judgment. Cf. aa. 727, 730, 955, 1046, 1047.

Moreover, the following can take nothing from a testament as incapable: 1. Guardians, before the last accounts of administered guardianship have been rendered and approved, even if the guardianship has ended. C. I. 769; C. G. 907; C. H. 753; excepting ascendants, descendants, brothers, sisters, and spouse. C. I. 769. Cf. C. G. 907; C. H. 753; C. L. 1767, 1768, 1770. - 2. A notary, and one who was present as a witness to the testament. C. I. 771; C. H. 754; C. L. 1772; C. He. 503; or one who wrote the secret testament, unless the testator by his own hand, or orally before the notary and witnesses when it is handed over, has approved what he left to him. C. I. 771, 772. 3. Natural children whose filiation has not been legally recognized or declared have no right to succession or testament. Illegitimate natural children whom the testator legally acknowledged, or who are established as such by the sentence of a judge, legitimate children existing, cannot take anything from father or mother except the legitime, or that which is owed to them by right of succession. C. I. 181, 192, 193, 723, 743, 764, 768, 773; C. G. 334, 338, 723, 756, 908, 911. Incestuous and adulterine children, or spurious children, can receive nothing except support; but they have a right to this if the testator acknowledged them, or if by the sentence of a judge they are established as such. C. I. 180, 193, 752, 767; C. G. 762. Cf. here 1042.

4. It is not permitted for a spouse who has married a second time to leave to the new spouse more than to the child procreated from the former marriage to whom he left less than to the others. C. I. 770; cf. C. G. 1098. - 5. An adulterous spouse cannot dispose in favor of his accomplice, if the adultery has been judicially proved before the death of the testator. C. L. 1771. According to C. B. 1938, 2333 ff., one can by testament exclude from legitimate succession a blood relative or spouse, without instituting an heir. One can take away from a descendant, father, mother, or spouse, on account of offenses established in the law itself, the part reserved to them by law, and restrict the right to that part for a prodigal descendant or one burdened with debt.

Note: When the testator has erred in the name of the heir or legatee, if nevertheless the person is established, the institution and legacy are valid. And the same must be said if the thing bequeathed has been erroneously indicated. C. I. 836; C. He. 469. Cf. C. L. 1761, 1837. As regards the interpretation of testaments in various doubtful cases, cf. C. B. 2066 ff., 2088 ff. A testamentary disposition in favor of an incapable person, although simulated under the form of an onerous contract, or made through interposed persons, namely the father, mother, descendants, and spouse of him to whom it is left, according to C. I. 773 is null; according to C. G. 911, C. H. 755 it will be null.

Hence some affirm that a fiduciary heir, to whom it was committed to restore the inheritance to an incapable person, e.g., to a spurious son, can ascribe the inheritance or legacy to himself, for the condition of restoring contrary to law is null. Others say that he must restore it to him to whom it had been left, lest he betray the trust. Others hold, and more truly, that he must restore it to the intestate heirs, to whom the right assists from the just disposition of the laws. Cf. Lugo d. 24. n. 95; Salm. tr. 14. c. 5. n. 73; L. 351, 952 and here 1045. A testamentary disposition made in favor of a person who is uncertain in such a way that he cannot be determined is null. C. I. 830; C. H. 750; C. L. 1741, 1742; or in favor of a person altogether uncertain to be named by another. But a disposition by particular title is valid for a person to be chosen by a third party from among various families or moral bodies determined by the testator himself. C. I. 834, 872. Cf. C. B. 2065. "Legacies to pious causes do not become caducous because of uncertainty of place or church, but most often they will have to be given to the poorer church or hospital." L. 938. Cf. C. H. 650, 671. A disposition made generally in favor of the poor, the sick, etc., is valid. C. L. 1872; C. I. 832. Likewise a disposition is valid by which someone commits his last will to the disposition of another, if it is for pious causes. C. Cum tibi 13 de Testam. Communities or Colleges, as well as moral entities which have not been legitimately approved, since they do not enjoy civil rights, cannot receive from a testament; nevertheless it is permitted to leave to lay moral persons to be established, when they have legally assembled. But moral bodies legitimately constituted need Government approval. Dispositions for the soul or in favor of the soul expressed generically are null. C. I. 831, 832, 833, 932, 1075. According to C. H. 747, if an indeterminate disposition is for suffrages and pious works for the benefit of one's soul, half the part must be handed over to the Diocesan, and the other half to the Civil Governor; the former to be destined to suffrages and necessities of the Church, the latter to charitable hospices. According to C. L. 1775, one cannot institute his own soul as heir, except only for the third part of the third of free disposition. But laws of this kind, insofar as they regard churches and pious causes, are altogether null in the forum of conscience. Cf. Gousset 793.

Of how many kinds is an heir distinguished, and how is his succession made? Resp. To the 1st: An heir is distinguished as: 1. Legitimate, who succeeds by law ab intestato. 2. Necessary, who cannot be excluded by the testator. 3. Voluntary, who is called as heir from the free will of the testator. - An heir from testament is also distinguished, if he has been designated by testament, and an heir ab intestato, if by law he succeeds to a deceased person who made no testament or an imperfect testament. In the first case there is inheritance, or testamentary succession. In the other there is legitimate inheritance, or succession ab intestato. C. I. 720; C. H. 658, 763, 807; C. A. 531, 532, 538, 764; C. B. 1922, 1923; C. L. 1735. Cf. here 672, 673; L. 945; Inst. 1. 2. t. 19; Gal. 4:7. According to the various Laws, someone can or cannot die partly testate and partly intestate. And thus an heir also can or cannot, according to the various Laws, partly succeed from testament and partly ab intestato. According to C. He. 481, that portion of the goods of which the deceased did not dispose is devolved upon the legitimate heirs.

Resp. To the 2nd: Succession ab intestato is devolved upon blood relatives. C. I. 721, 722. Succession is made by heads and by stocks. It is made by heads when the inheritance is divided into as many virile or equal parts as there are heads, or persons concurring to the inheritance by their own right. It is made by stocks when succession is had by right of representation, by reason of the stock from which the heir has arisen. C. I. 733; C. L. 1980 ff. Representation has this effect, that the representatives hold the place, i.e., the degree and rights of the represented person, C. I. 729, who cannot be an heir, C. I. 734, 735. Hence the representatives have no other right to the inheritance than that which would have pertained to the person whom they represent, and accordingly they take the virile share of their author; and if they are several, they take it divided among themselves by persons, i.e., in equal parts, or it is divided by heads. And this has place also in testamentary successions, unless the testator has disposed otherwise, or it concerns only a personal right. C. I. 728, 890. But if several branches have come forth from the same stock, subdivision is made by stocks in each branch, but by heads among the coheirs of the same branch. C. I. 733. Thus, e.g., Gerontius had three sons, now dead before him: Francis, Dominic, and Ignatius. From Francis was born Lucius, surviving. From Dominic were born Lucidus and Lucida, surviving. From Ignatius were born Aloysius and Stanislaus; from these, now deceased, children survive: Lucia and Lucella of Aloysius, Marius and Marianus of Stanislaus. Gerontius, dying, leaves a patrimony of 108,000 lire. The division of succession is made by the stocks of Francis, Dominic, and Ignatius; i.e., into three parts, and to each falls a quota part of 36,000 lire. The whole quota part of the stock of Francis pertains to Lucius, namely 36,000 lire. The other quota part of the stock of Dominic must be subdivided into two parts and is divided by heads between Lucidus and Lucida; namely, to each fall 18,000 lire. The third quota part of the stock of Ignatius is subdivided again into the stocks of Aloysius and Stanislaus, i.e., into two parts; whence to each stock fall 18,000 lire. Moreover the portion which is owed to the stock of Aloysius is again subdivided into two parts, by heads, between Lucia and Lucella, and to each are owed 9,000 lire. Likewise the portion which is owed to the stock of Stanislaus is also subdivided by heads, between Marius and Marianus, and to each are also owed 9,000 lire. Representation obtains only in the direct descending line to infinity and in any case. But in the transverse line, the sons and descendants of brothers and sisters of the deceased can represent their parents. C. I. 730-732; C. G. 718 ff., 731 ff., 739 ff.; C. A. 726 ff.; C. H. 912 ff., 915 ff., 924 ff. Succession into lines is had if the goods are divided between the paternal and maternal line, and blood relatives from each line are called to receive the inheritance.

Of how many kinds are the goods of the testator distinguished? - For him who has no necessary successors, it is entire, that is, open, to donate absolutely all his goods to whomever he wishes, whether by act inter vivos or mortis causa, C. I. 809; C. G. 916; but otherwise if he has necessary successors. For to these a portion of the goods or inheritance is owed, constituted by law, which is called the legitime. C. I. 805, 808, 1091; C. G. 913, 915; C. A. 762, 774; C. He. 470. But that part of the goods which someone can freely either donate inter vivos to anyone or leave by testament is called disposable. The legitimate part is owed in full ownership, and accordingly without any burden whatsoever, mode, condition, or day; but it is otherwise for the disposable portion, to which burdens can be added. C. I. 808, 810; C. G. 913, 917; C. H. 813; C. A. 774. - L. 740, 950; Lugo Resp. Mor. 1. 6. 24.

Who are necessary heirs? - By the very law of nature the right of succession seems to belong to proximate blood relatives. For the common good of society requires that there be a certain stability of wealth in families, which, by the disposition of divine Providence, are preserved and propagated by a continued series of generations. Necessary heirs are: 1. Descendants. 2. In their defect, ascendants. C. A. 762; C. H. 807. - If both are lacking, it is entirely open to the testator to dispose of all his property according to his judgment. C. I. 809; C. G. 916; with the right of the surviving spouse to a certain part of the usufruct of the goods left being preserved, C. I. 812, 814.

But descendants are natural and legitimate children, or only legitimate, i.e., legitimated and adoptive, and their descendants. C. I. 806; C. A. 763. - Descendants of sons succeed by right of representation if they concur with sons; and then, however many they are, they receive that portion, divisible among themselves, which belonged to their parent, that is, they succeed by stocks. But if no son survives, the testator can distribute his goods equally to each, according to the right conceded to him, and they themselves succeed by heads. C. H. 739-745.

To sons natural children, not legally recognized, no right is conceded in the goods of the parents; to those recognized, no right in the goods of those who are blood relatives of the parents. C. I. 743, 749; C. G. 756. According to C. He. 470, necessary heirs are descendants, parents, brothers or sisters, and spouse. By Canon Law, among necessary heirs is to be counted the church, to which by right pertain and are devolved ecclesiastical goods left by a Bishop, by a rector of a church, by a beneficiary, goods bought from the goods of the church, goods donated in view of the church, and improvements made in things of the church.

C. 1, 3, 4, 5 de Pecul. clericor. The goods of a solemnly professed Religious pertain to his Religion, unless special statutes of the Order stand in the way. The goods of a simply professed Religious pertain to his heirs, whether coming ab intestato or from testament. E. M. "An inheritance is usually divided into twelve ounces, which are contained under the name of the as. And these parts have their own names from the ounce up to the as, as follows: 1 ounce, 2 sextans, 3 quadrans, 4 triens, 5 quincunx, 6 semis, 7 septunx, 8 bes, 9 dodrans, 10 dextans, 11 deunx, 12 as." Inst. 1. 2. t. 14. § 5.

What, according to positive law, is the reservation or legitime owed to necessary heirs? According to Roman Law: 1. As regards ascendants, the triens, that is, the third part of the as or inheritance, is reserved when descendants are lacking. - 2. As regards legitimate children, the triens, if there are not more than four children; and the semissis, or half part, if there are more. 3. As regards natural children, they succeed to the mother by equal right with legitimate children. But they do not succeed to the father having legitimate children, although they can receive from him a twelfth part of the inheritance. But if the father lacks legitimate children, he can institute natural children as heirs, provided surviving parents are not deprived of their legitimate portion; and when these are lacking, natural children can succeed to all the father's goods. - Nov. 118; L. 947-901. According to C. G. 913-915, whether for testament or for donation inter vivos: 1. As regards the reservation owed to legitimate children, if there is one, the semis, or half part of the goods, is reserved; if two, the bes, or two thirds; if three or more, the dodrans, or three quarters. But under the name of child, his descendants who represent him are comprehended. - It does not seem that the part which would pertain to a legally recognized illegitimate child ab intestato can be taken away from him by testament. Cf. n. 1047. 2. As regards the reservation owed to ascendants, if legitimate children are present, they have no right; when children are lacking, ascendants have a right to the legitime, so that this portion is the semis or half part if they survive from each line; but the quadrans, or fourth part, if they survive only from one. 3. A wife does not come among necessary heirs, nor legitimate heirs ab intestato, unless the other legitimate heirs within the degrees established by law are lacking. Thus according to each Law, namely Roman and French. Nevertheless by natural law a testator must assign some part to the surviving spouse, if she does not have sufficient goods of her own, on account of the most close necessity between husband and wife.

According to C. I. 744, 805, 807, 808-810, 812-816, 818, 819: 1. The legitimate portion of legitimate children is half of the goods, whatever the number and sex of the children may be. But under the name of children are comprehended legitimate, legitimated, and adoptive children, and their descendants. 2. To illegitimate children duly acknowledged, if children or ascendants exist, there is owed half of the quota part which would have fallen to them if they had been legitimate, the legitimate children being computed together with them. But if descendants and ascendants are lacking, two thirds of the aforesaid quota are owed to them. Yet this portion which is owed to illegitimate children can be furnished in hereditary goods or in counted money; and it does not diminish the legitime of legitimate descendants or ascendants, since it must be deducted from the disposable portion. 3. The legitimate portion of ascendants, when descendants are lacking, is a third part, divisible between father and mother, and, if either of them is lacking, to be conferred on the survivor; if both are lacking, to be divided between ascendants of the paternal line and of the maternal line, provided they are of the same degree; otherwise to be conferred upon the nearer persons of either line. 4. The spouse has a right in the inheritance of the deceased spouse to the usufruct of a certain portion, greater or lesser, according as the deceased has left either descendants, or ascendants alone, or neither. But this portion is deducted from the disposable portion, and can be given by a certain part of the revenues, or by annual prestations. Note: 1. If the testator assigns to someone a usufruct or life annuity which exceeds the annual revenue of the portion of which he was able to dispose, then the legitimaries are given the option either of executing what was prescribed by the testator, or of renouncing for themselves the portion of which he was able to dispose. C. I. 810. - 2. The surviving spouse, and one not previously personally separated by a sentence which has passed into judgment, has the right of usufruct in that part of the inheritance which equals the part pertaining to each legitimate child, under the title of legitime, counting the spouse himself together with the children. C. I. 812. If the testator does not leave descendants but only ascendants, the portion of usufruct will be the fourth part of the inheritance. C. I. 813. - But if the testator leaves neither descendants nor ascendants who have a right to the legitime, the portion of usufruct will be a third part of the goods. C. I. 814. The testator can indeed be more abundant toward the surviving spouse as regards the disposable part. Yet, if children from another marriage survive the testator himself, then he cannot leave to the second spouse more than that which he left to the least regarded child of the prior marriage. 3. Both the spouse and the natural child must impute to their respective quota, the former all things which came to him from matrimonial agreements, and the latter everything which he received from the testator while living, if it is subject to collation. C. I. 820. 4. Natural children, legitimate children being lacking, can be instituted for the whole as, the legitime owed to ascendants being preserved. C. I. 724, 745, 764; C. G. 723.

According to C. H. 808, 809, 834 ff., 840 ff., the legitime reserved for children and legitimate descendants is contained in two thirds of the hereditary patrimony of the father and mother. Nevertheless they themselves can dispose of one of these two parts, under the title of betterment, so that they may apply it to children and legitimate descendants. Of the remaining third part of the goods they can freely dispose. - The legitime of parents and ascendants, in defect of the preceding, is constituted by half of the hereditary goods. The disposition of the other half part remains free. To the widowed spouse, not separated by divorce, or without his fault, a certain part as to usufruct is reserved, which varies according to various circumstances. To natural children also legally recognized a certain part is reserved; but to illegitimate children who are not natural, only support.

According to C. L. 1784 ff., the legitime is contained in two thirds of the goods of the testator. According to C. A. 161, 162, 865, 766, 796, the legitimate portion reserved to children is half the part of the goods which would fall to them in succession ab intestato. But the legitimate portion of each necessary heir in the ascending line is a third part of the goods which would come to him in succession ab intestato. Legitimated natural children are counted among legitimate children. No legitime is owed to the spouse, but only suitable support. Cf. as regards the spouse, aa. 1242 ff. According to C. B. 2303 ff. and C. He. 470, 471, reservation of goods is had for descendants, for father and mother, for the spouse; and according to C. He. l.c., also for brothers or sisters.

According to C. He. 633, adult children who live together with their parents and have contributed work and profit into the domestic community of the parents can claim equitable compensation in the division of their inheritance, insofar as they have not expressly renounced it.

Whether a testator is bound under grave obligation to leave goods to blood relatives who are not necessary heirs, if they are gravely in need?

Speaking of brothers or sisters, it must altogether be affirmed, at least as much as suffices for relieving their need, not only from the general precept of charity, which obliges gravely when the matter is grave, but also from the special obligation of piety, which also obliges under grave sin to aid brothers or sisters in grave necessity before all other poor persons or pious works. But if brothers or sisters are poor, even if they do not have grave need, it is still at least venial to pass them over. Toward other more remote blood relatives there does not seem to be a grave obligation of preferring them to other poor persons. Nevertheless passing them over, if they are gravely in need, would not be free from light fault, since toward them also there is some obligation of piety, although not so strict. C. He. 470 numbers brothers and sisters among legitimate and necessary heirs. L. 946.

Whether parents can leave part of the inheritance even to spurious children? - "Spurious children, apart from support, can receive absolutely nothing from the father under any title whatsoever, neither inter vivos, nor from testament, nor ab intestato; and if they have received anything, they are bound in conscience to restore it to the heirs of the father.... The reason is that these spurious children have been made altogether incapable by law in hatred of the parents, as from Nov. 74, etc." Thus St. Alphonsus 951. And Struggl, tr. 7, q. 2, n. 13: "Whence in the case in which a father has excessively dowered a spurious daughter, she with her husband is bound, even before the sentence of the judge, to restore the excess of the dowry to the legitimate heirs, unless perhaps they freely remit this; as Sporer teaches here, cap. 5, n. 50, with Molina and Sanchez." The theologians commonly taught, according to the ancient laws, that to donate to spurious children, and to accept donations, to bequeath, and to acknowledge legacies, is grave. Namely, it is very much in the interest of the republic to protect good morals. Nor is it valid to say that illegitimate children who are not legally acknowledged, as are adulterine and incestuous children, can freely receive as though outsiders what their parents have freely wished to give or bequeath to them. For this openly contains fraud of the law, and would establish them in a better condition than legally acknowledged illegitimate children, which is evidently contrary to the will of the law. C. I. 180, 752; C. G. 762; C. H. 134, 139; C. A. 165.

166. Cf. aa. 752, 753, 754. - L. 951, 952; Gousset 727. Cf. here 1038, 1039.

Whether necessary heirs can be disinherited? - According to Roman Law, children can be disinherited by the authority of the father alone, especially in the following cases: 1. If a son lays hands on a parent, or treats him contumeliously. 2. If he is his accuser or witness in criminal causes. 3. If he has relations with the same one's wife. 4. If he is unwilling to become surety for freeing the father from prison. 5. If he has prohibited the father from making a testament. 6. If a daughter, having refused an honorable marriage, lives luxuriously. Inst. 1. 2. t. 13; L. 948 ff. - According to C. A. 768 ff., necessary heirs can be disinherited for causes constituted in the Law. The same is held in C. H. 848 ff.; C. L. 1875 ff.; C. He. 477 ff. According to French and Italian Law, necessary heirs can never be disinherited by private authority. Yet by law they are excluded from the inheritance as unworthy in the cases already noted above. Cf. 672, 1038. According to C. B. 1938, 2332 ff., 2339, one can by testament exclude a blood relative or his own spouse from legitimate succession. On account of offenses established in the law itself, one can take away the part reserved by law from a descendant, father, or mother, and restrict the right to that part for a prodigal descendant or one burdened with debt. Several causes of unworthiness to succeed are likewise established.

Who are legitimate heirs; what is their succession?

Legitimate heirs generally are those who are called to succession according to the disposition of the law, when the disposition of the deceased is lacking, either because he made no testament, or because he made an invalid testament, or because the instituted heir cannot or will not enter upon the inheritance. Moreover the law, by prerogative of order and degree, calls blood relatives to succession: descendants, ascendants, collaterals, the spouse, and, when these are lacking, the State. This is the order: Succession is deferred: 1. To descendants indefinitely. When these are lacking: 2. To ascendants, brothers, and their descendants, but not beyond the tenth degree, and to the spouse. When these also are lacking: 3. To other collaterals of the later order, i.e., paternal uncles, maternal uncles, paternal aunts, maternal aunts; and, when these are lacking, to their children, paternal cousins, maternal cousins, cousins through paternal aunts; and when these are lacking, to those who next descend from them, up to the tenth degree. This is the prerogative of order: legitimate descendants exclude all others, except duly acknowledged illegitimate children. C. I. 736. These illegitimate children exclude all collaterals. C. I. 743, 745. Ascendants and Brothers exclude collaterals of the later order. The spouse excludes all collaterals, whether of the prior or later order, but only after the sixth degree. C. I. 742, 755. This is the prerogative of degree: nearer persons of the same order exclude more remote persons in the same order. C. I. 720-724; C. G. 723, 725 ff., 731 ff.; C. H. 912-914; C. A. 727 ff.; C. L. 1969 ff.

1. Succession of descendants. Legitimate heirs in particular are, in the first place according to C. I. 736; C. G. 745, legitimate children, or their descendants, without distinction of primogeniture or sex, although born from different marriages. They succeed in equal portions and by heads if they are in the first degree and are called by reason of themselves. They succeed by stocks if they are called by right of representation. But the descendants of the deceased exclude the others from succession. According to C. I. 737, under the name of legitimate children are also comprehended legitimated and adoptive children, and their descendants. Adopted persons and their descendants indeed succeed to the adopter, but they are excluded from the succession of all relatives of the adopter. - But the inheritance of the adopted person does not pertain to the adoptive parents; and accordingly it returns to his own blood relatives. C. I. 210, 212, 737. Almost the same are the dispositions of C. A. 730-734; C. H. 930-934; C. He. 457 ff.; C. L. 1985 ff.

2. Succession of ascendants. When descendants are lacking, and likewise when brothers or sisters and their descendants are lacking, ascendants succeed, namely according to C. I. 738, 739, father and mother in equal portions, or, if either has died, the survivor alone. And when descendants, parents, brothers or sisters, and their descendants are lacking, ascendants of the paternal line succeed in half part of the goods, and ascendants of the maternal line in the other half part. If nevertheless ascendants are not in equal degree, the inheritance pertains to the nearer one.

If they concur with collaterals, according to C. I. 740, in no case can the portion of the parents be less than the triens, or third part. The remainder is divided among the brothers or sisters according to their number in equal portions. But consanguine or uterine brothers or sisters, whether they concur with full siblings or are alone, obtain half of the portion which pertains to full siblings. If they concur with the spouse, according to C. I. 754 they take the bes, or two thirds. According to C. G. 746, 747, when descendants are lacking, and likewise brothers or sisters and their descendants, the nearer ascendant from the paternal line and the nearer ascendant from the maternal line each receive a half part of the goods, the others being excluded. Ascendants, the other legitimate heirs being excluded, succeed to their descendants who have died without posterity, in those goods which they gave to those descendants, or in their price, if these have been alienated. If the deceased without offspring left both parents and brothers or sisters, or their descendants, according to C. G. 748, 751, 752, half of the inheritance must be divided between father and mother; the other half must be divided equally between brothers and sisters, if they were born from the same bed; otherwise if they were born from a different bed. But if only one of the parents survives, the portion of the brothers, sisters, or their descendants is the dodrans, or three fourths; only the fourth part is left to the surviving parent. The dispositions of C. A. you have in aa. 735 ff., and of C. L. 1493, 1996 ff. When descendants are lacking, if both parents are still living, the whole inheritance belongs to them in equal portions. According to C. He. 458, when descendants are lacking, the inheritance is devolved upon the parents of the stock of the parents. Father and mother succeed in equal portions. According to C. H. 935-938, in defect of descendants, ascendants exclude collaterals. Parents divide the inheritance between themselves in equal parts; and if only one survives, he receives all. - Grandfathers divide the inheritance equally between themselves if they are of the same line; or they divide it equally with others if they are of different lines, yet in such a way that half part yields to one line, the other half part to the other line.

3. Succession of collaterals. If someone dies without offspring and without parents, then his brothers and sisters, or their descendants, are called to succession, the rest being excluded. C. G. 750; C. I. 741. - According to C. I. art. cit. 741, consanguine and uterine brothers and sisters, concurring with full siblings, obtain half of the portion which pertains to full siblings. - If they concur with the spouse, they receive the bes, or two thirds. C. I. 754. - If they concur with ascendants, the triens being left to the parents, they themselves take the remainder in equal portions. C. I. 740. - But if they concur with spouse and ascendants, they take the triens, or third part. C. I. 740, 754. If someone dies without offspring, and without brothers and sisters and their descendants, and without ascendants of either line, half of the inheritance is deferred to the surviving ascendants, the other half to the nearer relatives of the other line; if nevertheless among the surviving ascendants there is father or mother, these have a right to the usufruct of the triens of the goods in which they do not succeed. C. G. 753, 754. - According to C. I. 742, 755, if someone leaves neither offspring, nor parents, nor other ascendants, nor brothers or sisters, the succession is deferred to the nearer relative or relatives without distinction of paternal or maternal line. But if a spouse is present, then two thirds fall to this spouse, and a triens to them. Relatives beyond the twelfth degree, namely the sixth according to canonical computation, do not succeed according to C. G. 755. When relatives are lacking in some line within the aforesaid degree, the whole inheritance pertains to the relatives of the other line. According to C. I. 742, succession is not extended beyond the tenth degree, namely the fifth according to canonical computation. So also according to Roman Law. The dispositions of C. A. you have in aa. 735 ff. When parents are lacking, the whole inheritance is divided between brothers and sisters in equal portions. But as regards other blood relatives, succession is not extended beyond the sixth line of consanguinity, namely the fifth degree according to Canon Law. According to C. He. 459, 460, in defect of descendants and heirs of the stock of the parents, the inheritance is devolved upon parents of the stock of grandparents. Grandfathers and grandmothers of the paternal and maternal line, if they live, succeed in every line in equal portions. If a grandfather and grandmother have died before, they are represented by their descendants, who succeed by stock in each degree. If a grandfather or grandmother of the paternal line or of the maternal line has died before, without his or her own descendants, the whole half part is devolved upon other heirs of the same line. If there are no heirs of the paternal or maternal line, the whole inheritance is devolved upon heirs of the other line. - With the stock of grandparents the succession of blood relatives of the parents ceases; nevertheless the usufruct is reserved to great-grandparents of the part devolved upon the descendants of their stock, if they were living, and great-uncles and great-aunts have this usufruct in representation of the great-grandparents who died before, from whom they descend, as long as they live. According to C. H. 921-927, 940-955, when descendants, ascendants, and legally recognized natural children are lacking, brothers succeed to the inheritance in equal parts. When brothers are lacking, the spouse succeeds to the whole inheritance. If there are brothers and spouse together, the spouse receives the usufruct of the part determined by law. But if brothers and spouse are lacking, other collaterals succeed up to the sixth degree by civil computation. Cf. aa. 918, 919. The nearer blood relative excludes the more remote, with the right of representation preserved, a. 921. According to C. L. 2000 ff., when descendants and ascendants are lacking, the heirs are brothers and their descendants.

4. Succession of natural children. Natural children, legally recognized, when natural and legitimate children exist, according to C. G. 723, 757, 758, have a right to the third part of the portion which they would have obtained if they had been natural and legitimate; to half of that portion, if there are no legitimate descendants and there are ascendants, or brothers or sisters; to the dodrans, if all these are lacking; and if moreover there is no relative who enjoys the right of succession, the whole inheritance pertains to them.

According to C. I. 744, 745, 746, 747, 749, natural children, legally recognized, when legitimate descendants exist, have a right to half of the portion which they would receive if they were legitimate. Natural children must furthermore impute into that portion whatever they may have received from the parent or parents, subject to collation, even if they have been dispensed from collation. - If the parent dies without legitimate offspring and their descendants, but leaves his parents, or one of them, or another ascendant, or a spouse, natural children succeed in two thirds of the inheritance; the remainder is deferred to the ascendants or spouse. - But if ascendants and spouse are present together, a third part of the inheritance pertains to the ascendants, a fourth to the spouse, and the remainder to the natural children. - If there are no legitimate descendants and ascendants nor spouse, the whole inheritance is devolved upon the natural children; but they have no right in the goods of relatives of the father or mother, just as those relatives have none in the goods of natural children. - According to C. I. 180, 752; C. G. 262, children born from adultery or incest are altogether excluded from succession, and have only a right to support, namely if the testator acknowledged them or if by the sentence of a judge they are established as such. Support is certainly owed to children by the law of nature. Hence they can never be deprived of it by the father. Struggl. tr. 7. q. 2. n. 15; L. 949, 951. If a natural child has neither descendants nor spouse, his inheritance is devolved upon the father and mother who acknowledged him, or upon only one of them, if only one acknowledged him. But if he leaves a surviving spouse, half part of the inheritance belongs to the spouse himself, and the other half to father and mother, or to only one of them, as was just said. C. I. 750, 751. - C. L. 1994, 1995. According to C. A. 752, 753, 756, legitimated natural children have the same rights as legitimate children. But illegitimate children also have the same rights as legitimate children in the succession ab intestato of the mother. They do not have a right in the succession ab intestato of the father. But in the succession of legitimated and illegitimate children, their parents reciprocally have the same right as they do as regards the inheritance of their own parents. - According to C. He. 461, natural blood parents have in the maternal kinship the same rights as legitimate persons. In the paternal kinship they are heirs only insofar as the natural child follows the status of the father by recognition or sentence of a judge. In concurrence with legitimate descendants of the father, the natural heir or his descendants obtain half of the part which the legitimate children and their descendants receive. According to C. H. 939-945, when descendants and ascendants are lacking, the inheritance is divided among legally recognized natural children. But if descendants or ascendants are present, they receive only the portion determined by the laws. But if they themselves die without legitimate posterity, their parents succeed to them. C. L. 1989 ff.

5. Succession of the spouse. According to C. G. 767, when all relatives are lacking within the twelfth degree, the spouse is called to succession, provided there was no divorce between them. According to C. I. 156, 158, 753-757, if legitimate children survive the deceased spouse, the surviving spouse, who had not been legally separated from the deceased spouse, succeeds to him in an equal part, the spouse being counted in the number of the children, as regards usufruct. If recognized natural children also concur with legitimate children, the usufruct of the spouse must be equal to the quota of the inheritance which pertains to the legitimate children. This portion of usufruct can never be greater than a fourth part. If legitimate offspring are lacking, if there are ascendants, or natural children, or brothers and sisters and their descendants, a triens of the inheritance in ownership is deferred to the surviving spouse; but if legitimate ascendants and natural children are present together, only a quadrans. If the deceased has left other relatives who have the right of succeeding, the surviving spouse obtains two trientes. If there are no relatives who have the right of succession within the sixth degree, the whole inheritance pertains to the surviving spouse. Moreover, whenever the spouse is called to succession with other heirs, he must compute in his hereditary portion whatever he has already obtained on account of matrimonial agreements and dotal gains. - If the spouse has been legally separated from the deceased spouse, then no right belongs to him. When separation is made by mutual consent, even before a tribunal and homologated, it is not regarded as made legally, and therefore does not prejudice the mutual rights of the spouses. The sentence must have been issued before the opening of the succession. But its effects obtain only against the spouse who is at fault, who also loses dotal gains and all useful things granted to him by the other spouse in the marriage contract, and likewise the legal usufruct. Nevertheless the spouses can by mutual consent render void the effects of judicial separation, either expressly or tacitly, by still living together peacefully, without authority intervening. According to C. A. 757 ff., to the surviving spouse, if there are children, there belongs a determined usufruct of a certain portion according to the number of children; if children are lacking, but there is another legitimate heir, a fourth part of the inheritance belongs to him. But if there is no other legitimate heir, the whole inheritance pertains to him. According to C. He. 462, when the deceased has left descendants, the spouse obtains, at his own choice, either half part of the succession in usufruct, or a fourth part in ownership. Concurring with heirs of the stock of the parents, he has a fourth part in ownership and three fourths in usufruct. Concurring with heirs of the stock of grandparents, he receives half part in ownership and the other half in usufruct. If heirs of one and the other stock are lacking, he receives the whole succession in ownership. As regards C. H., cf. what was said in the Succession of collaterals. According to C. L. 2003 ff., when descendants, ascendants, and brothers and their descendants are lacking, the spouse succeeds. When the aforementioned blood relatives and spouse are lacking, other transverse blood relatives succeed within the tenth degree.

Succession of the State. When all who have the right of succeeding are lacking, the inheritance is devolved upon the State. C. I. 758; C. G. 768; C. A. 760; C. H. 956-958; C. He. 466; C. L. 206 ff. C. B. 1924 ff. establishes five orders of successions. Blood relatives of the preceding order exclude blood relatives of the following orders, 1930. Representation is admitted only in the first three orders, 1924, 1925, 1926. In the fourth order the nearer blood relative excludes the rest, 1928. In the first order are the descendants of the deceased. Nearer descendants exclude descendants who are blood relatives of the deceased through their mediation. Children succeed in equal portions, 1924. In the second order are the father and mother of the deceased, and their descendants. Father and mother, if they are living, succeed alone in equal portions, 1925. In the third order are the grandfathers and grandmothers of the deceased and their descendants. If they themselves are still living, they alone succeed in equal portions, 1926. - In the fourth order are the great-grandfathers and great-grandmothers of the deceased and their descendants. If all the great-grandfathers and great-grandmothers are living, they alone succeed; if several, they succeed in equal parts. But if all have died, their descendant nearer in blood relationship succeeds to the deceased; and, if several are in the same degree, they succeed in equal parts, 1928. - In the fifth order succeed great-great-grandfathers and great-great-grandmothers and their descendants, 1929. A portion of goods is always reserved to the surviving spouse, varying according to the various blood relatives with whom he concurs, 1931 ff. - When blood relatives and spouse are lacking, the fisc succeeds, 1936.

By Canon Law, to clerics, as regards superfluous ecclesiastical goods left behind, there succeeds at present the Congregation of Spolia, unless a special Indult is present; as regards other goods, blood relatives succeed according to civil law, and when these are lacking, there succeeds either the Congregation of Spolia, or now the Congregation de Propaganda Fide for the support of missions, or, where this has not been received, the episcopal fisc, with the burden of expending them on pious causes. Reiff. h. t. n. 63. - Solemnly professed religious perpetually secularized cannot make a testament. The Congregation of Spolia succeeds to them, according to the Constitution of Gregory XIII Officii nostri, or now the Congregation de Propaganda Fide. But if they are secularized for a time, the right of succeeding to their inheritance pertains to their monastery, unless this is prohibited by the Constitutions of the Order. The goods of solemnly professed religious, if before profession they did not dispose of them, are devolved to the natural heirs if their religion is incapable of succession; but if it is capable of succession, they are devolved to the monastery. But all monasteries of regulars have the right of succeeding, except houses and Colleges of the Society of Jesus, and monasteries of the Friars Minor of the observance and of the Capuchins. Schmalzgr. 1. 3. p. 3. tit. 27. n. 67 ff.; Giraldi in 4. t. According to C. A. 761, the goods of a cleric ab intestato are divided in equal proportions among the church, the poor, and blood relatives. When a Bishop dies, there are owed to the Cathedral Church the sacred utensils enumerated in the Constitution of Pius IX Quum illud, June 1, 1847, which are not positively established either to have been donated to the Church or to have been acquired with the goods of the Church. And therefore Bishops are bound to make an inventory of these utensils and to declare whether they were acquired with their own expenses or with the goods of the Church. Cardinals Bishops are held to this same obligation, except suburbicarian Cardinals and Abbots nullius residing in the Roman curia. All their utensils, with whatever goods they were acquired, pertain to the pontifical sacristy. Relics of the Holy Cross are to be transmitted to their successors. - E. M. 1037, 1038, 1047. But if Bishops have governed several Churches, the sacred utensils destined for divine worship are to be divided among the several churches in which they resided, according to the norm of the same Constitution. - C. 1, 2 de Success. ab intest.

What is a lying inheritance? - When the heir is not known, or those who are known have renounced the inheritance, the inheritance is called lying. To administer it a curator is appointed, who is obliged to all those things to which an heir with benefit of inventory is held. If after thirty years no one appears, it, as vacant, is prescribed to the fisc. C. I. 980, 983, 2135; Cod. proc. civ. 896; C. G. 811, 814.

What is the right of accretion? The right of accretion is that right by which the parts of failing heirs or failing legatees in the same inheritance or in the same thing bequeathed are added to other coheirs or other colegatees. C. I. 879, 884; C. A. 560; C. H. 981; C. B. 2094, 2158. The right of accretion has place in an inheritance when, in the same testament and by one and the same disposition, the testator called heirs jointly to the inheritance, without making a distribution of parts among them by expressly indicating the quota of each. But when the right of accretion cannot have place among coheirs, the portion of the failing heir is devolved upon the legitimate heirs ab intestato.

C. I. 880, 881, 883; C. G. 1044; C. A. 560 ff.; C. H. 982 ff. The right of accretion also has place in succession ab intestato, for the part of him who renounces accrues to the coheirs, C. I. 940. The right of accretion is likewise had in a legacy, when one of the legatees dies before the testator, or renounces the legacy, or is incapable, or the condition under which the thing was bequeathed to him fails; indeed also when one and the same thing in the same testament has been bequeathed to several, although by distinct disposition. C. I. 884; C. G. 1045; C. A. 689. Heirs and legatees receiving the portions of others take on the burdens and obligations annexed to them. C. I. 882, 887; C. A. 563; C. B. 1935, 2095, 2159.

As regards usufruct specifically, the right of accretion is given even if the legatee has accepted it and then fails, if namely it has been left to several persons in such a way that, according to the general rule, the right of accretion is given among them. C. I. 885. - When by the will of the testator the right of accretion is excluded, the part of the failing heir pertains to intestate succession with the same burdens imposed by the testator. C. I. 883; C. A. 562, 563. - If the legatee fails, the creditor failing, the thing bequeathed accrues to the heirs, who consequently are bound to fulfill the burdens enjoined upon the legatee according to their hereditary portions. C. I. 886; C. L. 1852 ff.

When, where, and how is the opening of inheritance had? Succession is opened, whether ab intestato or testamentary, at the very moment of the death of the testator, in the place of his last domicile, and immediate possession passes by full right to the heir, if he is capable. C. I. 923, 925; by full right, and accordingly without another juridical act, without any sentence of a judge. - If among two or more called to succession there is doubt which one died first, suppose in a common shipwreck, if this cannot be verified, all are supposed to have died at one point of time, and therefore there is no place for transmission of inheritance from one to another. C. I. 924; C. A. 25; C. B. 20; C. L. 1738. It is otherwise according to C. G. 720 ff. and L. 22, 23 de Reb. dub. Dig.

What of accepting or repudiating an inheritance? - For accepting or repudiating an inheritance it is required first that it has been deferred, for of a living person there is no inheritance, and therefore there can be no acceptance or repudiation of it. C. I. 954; C. G. 791; C. H. 991.

Moreover it is required that he who accepts or repudiates it be capable of contracting obligation and of alienating. For, by accepting it, he as it were contracts with the hereditary creditors and legatees. But by repudiating it, he alienates the same. Hence a family council, guardian, or curator is needed for those who are under guardianship and curatorship. C. I. 226, 296, 930, 931, 932; C. G. 776; and according to C. G. and C. H., for wives the consent of the husband is also needed. C. H. 992-996. It is open to each person to accept or repudiate an inheritance, whether testamentary or legitimate. C. G. 775; C. H. 988; C. He. 566. The reason is that no one is bound to accept a benefit which is often burdened with great obligations. Nevertheless renunciation is not presumed, but must be proved, and must be made in juridical form. One will be able to repudiate if he has not previously taken away or concealed anything from it. C. I. 953; C. G. 792; C. H. 1002; C. He. 571. According to the same C. He. 566, repudiation of an inheritance is presumed when it would be notorious or would be established from official acts that the debts of the deceased are insoluble. Once the inheritance has been repudiated, the part of the repudiating person accrues to the other written coheirs, if they were instituted jointly; otherwise to the legitimate heirs; and if he himself alone had been instituted, it is deferred to the following degrees. C. I. 946, 948; C. G. 786. And, after repudiating the testament, one will be able to receive legacies perhaps left to him. C. I. 945; C. G. 845. After repudiating an inheritance, one can still enter upon it as long as it has not been entered upon by others. C. I. 950; C. G. 790. The right of entering upon an inheritance ends in thirty years. C. I. 943; C. G. 789.

An inheritance is accepted expressly or tacitly. - Expressly, when by any juridical act, or even by private writing, someone assumes the right and name of heir. C. I. 934; C. G. 778; C. H. 999. Tacitly, when someone does something which necessarily demonstrates the will of entering upon the inheritance and of conducting himself as heir. C. I. 934, 938, 965; C. G. 778, 780, 796; C. H. 999, 1000. An inheritance once entered upon cannot afterward be repudiated, even though debt appears which previously was hidden. C. I. 942; C. G. 783; C. H. 997. Nevertheless against entry, as also against repudiation, restitution in integrum is given to those who have suffered fraud or fear. C. I. 942; C. G. 783; C. H. 997. - He to whom an inheritance has been deferred, if he dies before accepting expressly or tacitly, transmits to his own heirs the right of accepting. C. I. 939; C. G. 781. If someone renounces an inheritance to the damage of creditors, the judge can permit them to enter upon the inheritance in his name. C. H. 1001; C. G. 789. - C. B. 1943 ff.; C. He. 572 ff.; C. L. 2021 ff.

But it can be accepted purely, or under benefit of inventory. C. I. 929, 944; C. G. 774, 775, 784; C. A. 800 ff.; C. H. 998, 1003, 1023; C. L. 2018 ff., 1792; C. He. 580. Sometimes the making of an inventory is necessary by law, as in an inheritance deferred to a minor, C. I. 930; C. G. 461, 776, and in an inheritance devolved upon some community. C. I. 932. - An heir can use the benefit of inventory, notwithstanding any prohibition of the testator. C. I. 956; C. H. 1010; C. B. 1993 ff.

An inventory is a description of the movable things which the deceased left, C. I. 496; C. G. 600, but here in reality it is a description of all the goods of the deceased, or of the whole patrimony, C. A. 223; of the goods and debts of the inheritance; and all who know the patrimonial state of the deceased, if they are required by the competent authority, are bound to manifest it. C. He. 581. The benefits of inventory, which must be made at a certain time and with a certain solemnity, C. I. 955 ff.; C. G. 793 ff.; C. H. 1011 ff.; C. A. 800 ff., are three. - The first is that the heir is not bound to pay hereditary debts and legacies beyond the strength of the inheritance, and he can cede it to creditors and legatees in order to exempt himself from the burden of paying. - The second is that the proper goods of the heir are not confused with the goods of the inheritance, and the heir preserves against the inheritance the right of demanding payment of his own creditors. C. I. 968; C. G. 803. The third is that in the administration entrusted to him, he is bound only for grave fault. C. I. 970; C. G. 804; C. H. 1023; C. B. 1970 ff., 1975 ff., 1993 ff.; C. He. 589; C. L. 2044 ff.; L. 961.

The inventory does not benefit him who, in making it, has concealed something by bad fraud, C. I. 967; C. G. 801; who has not duly sold the immovable goods of the inheritance, C. I. 973; C. G. 806; who by his own authority has sold movable hereditary things within five years, C. I. 974, or at any time according to C. G. 805. Namely, a benefited heir is almost an administrator of the inheritance. C. I. 969; C. G. 803.

What are the rights and obligations of heirs? - Generally, heirs succeed to all the rights and burdens of the deceased, because they represent his person; only those are excepted which by their nature or by pact were affixed to the person of the deceased. For the heir does not succeed to the will of the deceased, but to his patrimony. Hence they acquire by full right ownership of the goods of the deceased, take on his obligations and debts, and must fulfill his will in the legacies. C. G. 724, 1009, 1012, 1013, 1017; C. A. 547, 548; C. B. 1967; C. L. 2014. As regards the mode of paying debts left by the deceased, each pays in proportion to his hereditary portion, and if because of a mortgage they are compelled to pay more, they have recourse against the others. For the division of things and burdens must be made by equal right among heirs, if there are several. C. I. 1029; C. G. 873. Cf. C. A. 550, 820, 821; L. 961. The division of inheritance can be rescinded if someone has been injured beyond a quadrans of his part. C. I. 1038; C. G. 887. Concerning this division of inheritance, cf. C. I. 984 ff., 1034 ff.; C. G. 815 ff., 883 ff. The heir is bound to sustain the expenses of the funeral. C. B. 1968; C. L. 1791 ff.; Lugo Resp. Mor. 1. 6. d. 13.

What of the executor of a testament? - The executor of a testament is he whom the testator has named for executing the testamentary dispositions. - But if no one has been named, the execution of the testament pertains to the heirs; and as regards pious causes, if no executor has been designated, or the designated one is unwilling to perform the office, the Bishop of the place is executor. C. A. 817; C. H. 892, 911; C. L. 1893; C. Nos quidem 3 de Testam.; L. 936, 937, 938, 941; Trent sess. 22, c. 8 de R. - A testamentary executor is not compelled to take on the mandate. C. B. 2202. "Nevertheless one who refuses by that very fact loses the legacy, at least that which was left to him as reward for the office, and it yields to the other executors." L. 936; C. L. 1899. And certainly the execution of a testament contains a mandate gratuitous by its nature; for it is an office of a friend. C. L. 1892; Gousset on a. 1025. According to C. B. 2221; C. He. 517, he can demand suitable remuneration for his office. - But if he has accepted it, he must discharge his duty, and this under grave obligation. C. Ioannes 19 de Testam.; C. A. 816; C. H. 898-900, 908; C. He. 518; Lugo d. 24. n. 29; L. 941.

In order that someone be executor of a testament, it is necessary that he have the capacity of obliging himself. Hence interdicted persons, minors even with the consent of the guardian, and wives without the husband's consent cannot be executors. C. I. 904, 905, 1743; C. G. 1028-1030; C. H. 893; C. L. 1886, 1887; C. B. 2201. Religious can be executors by permission of their Prelate, unless the Rule of the Order stands in the way. C. Religiosus 2 de Testam. in 6; Clem. un. e.t.; L. 936. Several executors of a testament can be instituted, and when one is absent another can proceed to the execution of the testament. But all are obligated in solidum, unless the testator has established otherwise. C. Religiosus cit.; C. I. 903, 910; C. G. 1025, 1033; C. H. 894-897; C. B. 2197 ff., 2219, 2224. - A testamentary executor does not transmit this office to his own heirs, C. I. 909; C. G. 1032; C. H. 909, 910; C. B. 2225, nor can he delegate it to another, C. H. 909; C. L. 1906. The executor must watch: 1. That seals be affixed if among the heirs there are minors, interdicted persons, absentees, or a moral body, C. I. 908, or generally if there is danger lest anything be taken from the inheritance. C. L. 2010, 2064 ff. 2. That an inventory be made, with the nearest heir present or duly summoned. C. I. 908; C. G. 1031; C. B. 2215. 3. That movable things be sold if money for payment of legacies is lacking. C. I. 908; C. G. 1031. 4. That he urge the execution of the testament at the time prescribed by the testator, even sustaining litigation if necessary. C. I. 908; C. L. 1899. 5. He must render an account of his execution within the time defined by law: according to C. I. 908; C. G. 1031, within a year from the death of the testator. C. B. 2203; C. L. 1905; C. H. 907. 6. Meanwhile he administers the hereditary mass and takes possession of it and disposes of its objects. He can make gratuitous dispositions which answer to moral duty and propriety. C. B. 2205. 7. He is liable for loss inflicted if he violates the obligations incumbent upon him. C. B. 2219; C. L. 1909. 8. He can always legitimately renounce his office. C. B. 2226. Likewise he can be dismissed by decree of the tribunal for a grave cause. C. B. 2227. - C. H. 901-907.

Although the testator can grant to the testamentary executor immediate possession of all movable goods, or of a part of them, provided it does not exceed a year, nevertheless the heir will be able to disturb him from such possession if he supplies him with enough money necessary for paying the legacies of movables, or proves that he has already paid them, or provides security for paying in the modes prescribed by the testator. C. I. 906, 907; C. G. 1026, 1027; C. B. 2217. But expenses which are made by the executor for the sake of fulfilling his office must be paid from the hereditary things. C. G. 1034; C. I. 911; C. L. 1908. "All, whether priests or laymen, to whose trust legacies for pious causes have been entrusted, are bound to make the Bishop more certain of this as soon as possible; he has the right of watching over the administration and of consulting for the security of the same legacies." S. C. C., Aug. 7, 1909, A. A. S. v. 1, p. 766.

He resolves: "In the forum of conscience, heirs and executors are bound under grave obligation immediately to fulfill legacies, especially pious ones, when they can." L. 941. Cf. St. Thomas, Quodl. 6, a. 13; C. A. 685. Nor indeed can they either reduce or diminish legacies, or in any way commute them or substitute another burden, unless the faculty for this has been given by the testator; for their office is to execute, not to invert, the will of the deceased. - If the legacies are profane and cannot be fulfilled in the mode in which they were left, they are caducous and yield to the heirs. It is otherwise concerning pious legacies; for the testator wished them to yield to the good of his soul. Cf. 1068.

C. B. 2203, 2216; Lugo Resp. Moral. 1. 4. d. 32.

Whether an heir of a testament, or executor, who has not made an inventory, or has not made it rightly, is bound in conscience toward creditors and legatees, even beyond the strength of the inheritance? Resp. Affirmatively, if he omitted the inventory by bad fraud; since he was the cause of loss foreseen at least in confused fashion.

Negatively, if without sin he omitted to make the inventory; because the law is founded on a presumption of fact, namely that the inheritance was rich, and consequently on a presumption of fraud, which is absent. - Lugo d. 24. n. 232; Gousset 728 and on a. 802; L. 932, 971; C. L. 1792.

What of possession of a legacy, and of its fruits and increases?

A legacy properly differs from an inheritance in that it is situated in a particular and determined thing, that it is owed by the heir, and that possession of it must be obtained from him. A legacy to a pious cause is excepted, however. For then the manifest will of the deceased suffices, and accordingly even the heir ab intestato, succeeding in place of the designated heir, will owe the legacy. But although the legatee must obtain possession of the legacy from the heir, and is bound to seek it from him, nevertheless ownership of the legacy, or the right to the thing, C. He. 543, 562; C. L. 1826, is acquired by the legatee from the death of the testator. C. I. 862, 863, 876; C. H. 881, 885; C. G. 1014, 1018; C. B. 2174, 2176. Cf. C. A. 684; C. B. 2160, 2161, 2180, 2181. - Hence necessary expenses for furnishing the legacy must be sustained by the inheritance. C. I. 877; C. G. 1016; C. H. 886; C. A. 690; C. L. 1842. But the fruits of the thing and the increase are owed to the legatee already from the death of the testator, if the legacy is of some farm, or capital, or another fruitful thing, or if the testator has expressly prescribed this. Otherwise the legatee cannot claim interest or fruits except from the day of judicial petition, or of the promised furnishing of the legacy. C. I. 864, 865. Cf. C. G. 1015; C. A. 686; C. H. 882-884; C. B. 2164, 2184, 2185; C. He. 485; C. L. 1840. - If the legatee dies before the inheritance has been entered upon by the heir, the legatee can transmit to his own heirs the ownership itself of the thing, if the thing was determined, or at least the right to the thing, if the thing was less determined. And, if the thing bequeathed has perished without fault of the heir, it has perished for the legatee. Inst. 1. 2. t. 20. § 16. - The legatee receiving a particular thing from the testator, as a certain donation, does not represent his person, nor consequently does he succeed to his rights and obligations. When an estate is bequeathed, all real burdens follow the legacy, but not likewise the debts with which perhaps it is burdened, unless the testator has disposed otherwise. C. I. 862, 878, 1033; C. G. 874, 1014, 1020, 1024; C. H. 881, 882; C. A. 662; L. 932.

Note: An heir who is also a legatee can renounce the inheritance and accept the legacy, and conversely. But he cannot accept part of the legacy and renounce another part, or accept a legacy affected by no burden and renounce another burdened one. C. L. 183. Cf. L. 4, 5 de Legatis et fideicommissis ff. - If a legacy is under a condition, since the condition suspends the disposition, and the legatee, and the same is true of the heir, dies before the condition is fulfilled, the legacy ceases, nor is his right transmitted to the heirs. C. I. 853. If the legacy is under a mode, the legacy is at once acquired by the legatee. Hence, if the legatee after the death of the testator, before receiving the legacy or before fulfilling the mode, dies, his right passes to the heirs, provided the mode can be fulfilled equally by them. But the legacy is owed, although he does not fulfill the mode, if this does not stand through him. Cf. C. B. 2192 ff. - A legacy to a day, or to be paid at a future time, is not owed before the established time. Meanwhile the legatee has a right to it, which right, if he dies before the established day, he transmits to his own heirs. C. B. 2177. A testamentary disposition which leaves the quantity of the legacy altogether to the judgment of the heir or of a third party is null, except remunerative legacies for services shown to the testator in the last infirmity. C. I. 835.

A legacy must be fulfilled according to its proper form. C. H. 386; L. 936. "When the ox which was bequeathed is dead, neither the hide nor the flesh is owed." L. 49 de Legatis etc. ff. C. B. 2147 ff., 2162 ff.; Inst. 1. 2. t. 20. § 29 ff. "If a father in his testament has ordered the heir to give so many gold pieces to his daughter when she has married; if the daughter is married when the testament is made, but while the father is absent and ignorant, nevertheless the legacy is owed: for if the father was not ignorant of this, he seems to have thought of other nuptials." L. 45 de Legatis et fideicommissis ff. "What has been bequeathed thus: Let my heir, when he dies, give ten to Lucius Titius, since the legacy is to an uncertain day, does not pertain to the heirs of the legatee if he has died while the heir is living." L. 12 de Legatis et fideicommissis ff. "If a building has been placed upon areas that have been bequeathed after the testament was made, both will be owed: both the soil and the surface." L. 39 de Leg. et fideic. Dig. Cf. also L. 10 e.t. "If someone has bequeathed ten amphorae from that cask: even if not ten, but fewer, can be found, the legacy is not extinguished; but he receives only that which is found." L. 8 de Leg. et fideic. Dig. "If it has been bequeathed thus: Lucius Titius my heir is condemned to give Tithasus five gold pieces; then in another place thus: Publius Maevius my heir is condemned to give Tithasus five gold pieces; unless Titius has shown that the legacy was left by Publius for the sake of taking it away, he will receive five gold pieces from each." L. 44 de Leg. et fideic. Dig. When a testament has been rescinded, pious legacies recorded in it must still be paid, if the will of the testator concerning them is certain.

Who can bequeath, and to whom? - Whoever can testate can bequeath. But it is lawful to bequeath to those who can be instituted heirs, and to those who can receive a donation. And thus by Canon Law some modest thing can be bequeathed to Convents of Friars Minor, and to professed members and formed Coadjutors of the Society of Jesus, although neither, from their own Constitutions, can be instituted heirs. Clem. I. § Cupientes de Verb. sign. According to C. I. 382, nothing prevents imposing some burden on heirs in favor of those who are to be born, e.g., a thousand annual scudi for dowering girls. C. B. 2177, 2178, 2180; C. H. 484; Inst. 1. 1. t. 20. § 20 ff.; S. C. EE. et RR., March 26, 1677; June 20, 1686; Lugo Resp. Mor. 1. 4. d. 5.

What things can be bequeathed; what enduring force do bequeathed things have? It is peculiar to legacies that not only one's own thing, but also another's thing can be bequeathed, namely one which the testator knew to be another's; otherwise the legacy is not valid. Hence the heir is bound to buy the thing from its owner and hand it over to the legatee, or to hand over its just price to him. Thus according to C. I. 837, 838; C. H. 861, 862; C. A. 662; Inst. 1. 2. t. 20. § 4. But a legacy of another's thing according to C. G. 1021 will be null, whether the testator was ignorant or knew that the thing was another's.

Cf. C. B. 2169, 2170; C. L. 1801 ff. - C. I. 870; C. G. 1022; C. H. 875; C. L. 1827, 1828 establish that when an indeterminate thing has been bequeathed, yet contained under a certain genus or species, the heir, to whom the choice pertains, is not bound to give the best, nor can he give the worst. Cf. C. H. 1167; C. A. 656, 658, 659; C. B. 2155, 2156, 2182 ff.; C. He. 484; C. L. 1805 ff., 1812, 1816 ff., 1832 ff.; L. 938. If the testator has left something annual or monthly to someone and his heirs, or has ordered a determined number of Masses to be celebrated each year, it is owed also to the heirs of heirs, and these will have to be celebrated forever. S. C. C., Aug. 4, 1864.

If the legacy is real, left from some estate or estates, or for the satisfaction of which the testator obligated these by pledge or mortgage, it binds whatever possessors of the thing in proportion to the estate; namely heirs always; outsiders, if the legacy has been duly transcribed, or the mortgage inscribed, or the estate has come to them by lucrative title. But if the legacy is personal, it binds only the heirs according to hereditary portions. Hence, if the estate or estates are destroyed, the legacies still survive. - Monthly or annual legacies are owed whole at the beginning of each month or year, even if the legatee dies after the month or year has begun. C. I. 837; C. A. 687. A legacy of an impossible or prohibited thing is without effect.

C. B. 2171 ff. When foods are left, food and wine are contained in suitable quantity. When support is left, all things are contained without which life cannot be supported: both food and wine, and clothing, and suitable instruction. C. L. 1831. A legacy of support can be demanded at the beginning of any year or month. C. I. 867; indeed it is owed according to C. L. 1841. - Annual legacies and legacies of support and usufruct cannot be made to several persons successively; and if this has been done, only those who are found in the first place at the time of the death of the testator acquire the legacy. C. I. 901; Inst. 1. 2. t. 22; Benedict XIV, de Syn. 1. 13. c. 25. n. 30 ff.; E. M.

Whether a legacy left by a debtor to a creditor is to be judged given in compensation of the debt? According to C. I. 845; C. G. 1023, a legacy of this kind, without mention of the debt, is not presumed to have been made in payment of the debt. Nevertheless the general presumption is that someone wishes first to satisfy his obligation, and then to give gratuitously.

Whether a legacy left to orphans can be given to the poor having useless parents; what of a legacy left to the poor? If true orphans are lacking, it can be given; because the will of the testator is sufficiently fulfilled; for he wishes to help children not having the means by which they may be supported. - But if true orphans are present, more probably altogether it cannot be given: because the express will of the testator must be fulfilled in its proper form whenever it can be fulfilled. Clem. Quia contingit de Rel. dom.; Trent sess. 22, c. 8. Nevertheless St. Alphonsus thinks that not improbably it can be given, because this more closely approaches the end of the testator, since then such children must provide not only for their own need, but also for the poverty of their parents. - L. 930.

A legacy left to the poor can be given to those who are in need according to their condition, and accordingly also to one's own blood relatives if they are truly in need; indeed someone can retain it for himself if he is truly in need, unless the testator left something else to him. - If it does not suffice for all the poor, it must be given according to the order of charity; and accordingly those more in need seem to be preferred. But the poor are regularly understood to be those of the place where the testator had his domicile. C. I. 832.

Whether a legacy left to girls so that they may marry can be given to those who become religious? - If the legacy was left to a determined person, it is certain that it can be given, unless the mind of the testator is otherwise established. For the testator intends primarily to regard the person herself with his benefit. - If the legacy was left to indeterminate persons, certainly more probably it must be given only to those marrying, and first marrying. For the express will of the testator must be preserved in its proper form whenever it can be preserved. But this will of testaments is very pious: they intend to provide for girls of this kind so that they may be removed from the danger of sinning. L. 930.

Whether a legacy left to a girl under the condition of marrying some man is owed if she marries another? "It is certain that it is not owed," because that condition does not injure the liberty required for marriage, since the girl can freely accept or reject such nuptials; and accordingly it cannot be regarded as a base condition, and as though not added. Exception, however, if "she herself is induced to marry an unworthy man, because then that condition is rejected as base, and the legacy is owed to her if she marries another." L. 853. Schmalz. 1. 4. t. 1. n. 149, 150; C. A. 700.

Whether a legacy left to girls so that they may marry can be given to girls who have already married without a dowry? Resp. Affirmatively, if it concerns determined girls; because the testator is presumed to have wished altogether to provide for them on account of a particular affection toward them, or so that, married, they may live decently. Otherwise, if it concerns indeterminate girls, because then the testator is judged rather to have wished to assist those marrying, so that they might avoid the danger of prostitution. L. 930.

But if the legacy concerns dowries, a more benign interpretation can be made also for poor married women; for a dowry is both for finding a husband and for bearing the burdens of marriage, and also for those professing a religious Institute; for a dowry is necessary for these also in order to embrace the state. - When dowries of this kind have been left to honorable girls, honorable girls are to be understood as those who are such in common estimation, not the immodest.

What comes under the name of movables or movable goods in legacies? - Movable goods are generally those which can be moved from place, such as clothes, animals, money, etc. Movable goods, movable things, movable, or even movables in opposition to immovables, sound the same. Movables, without addition and without determination, are said to be all goods which are not immovable, excepting money, books, jewels, coins, active debts, instruments of the arts, linens for the use of the body, horses, arms, grains, wine, hay, and other similar things. Also except those things concerning which a particular commerce is exercised. Furniture, or movables precisely furnishing a house, are altogether restricted to those things which are ordered to use or to the ornament of habitation, such as seats, tables, cabinets, etc. C. G. 527 ff.; C. I. 416 ff.; C. H.

335 ff., 346; C. A. 647 ff.; Gousset on aa. 533, 535; Lugo Resp. Mor. 1. 6. d. 10, 11.

He resolves: Hence silver furniture and animals are simply movables, excepting horses; linens, excepting those which are used for the body. If the testator says: I bequeath the movables to Caius and the immovables to Sempronius, Caius has a right to all movable goods, because the mind of the testator is evidently clear from the opposition of movables to immovables.

Gousset on a. 533; Rogron ib. If the legacy is stated thus: I bequeath to Titius all my movables, or movable goods, or the totality of movables, Titius has a right to all goods that are not immovable, because the word movables is not taken here without addition, but with an extension of meaning. Gousset 807 and on a. 533; Rogron ib.

Whether the Supreme Pontiff can commute the last wills of testators? - There is no doubt that the Pope can commute last wills with cause, as is clear from Clem. Quia contingit de Relig. domib. With cause, "because although the dispositions of testaments are judged to be committed to the Pope or Prince, nevertheless they are committed not as to an owner, but as to a dispenser of the common good or of pious causes. Hence, since the Pontiff is not the owner of such goods, he cannot, either from ordinary or extraordinary power, convert these dispositions without cause to another use than that to which they were destined by the testators. Therefore if the legacy is profane, the Prince will be able, on account of public necessity or another just cause, to commute it into another profane or pious legacy. But if the legacy is pious, the Pope alone will be able, with just cause intervening, to convert it into another pious one." L. 931; Benedict XIV, de Syn. 1. 13. c. ult.; L. Legatum 4 ff. de Administrat. rer. ad civ. pert.; S. C. de P. F. 1807, Collect. ed. 2. n. 689; A. S. S. v. 1, p. 609; v. 2, p. 353.

Whether Bishops with a just cause can commute pious dispositions? The first opinion affirms. The reason is that, from Trent sess. 22, c. 6 de R., Bishops, at least as delegates of the Apostolic See, and from a just and necessary cause, by their own judgment, can commute last wills. But the second and more probable opinion denies. The reason is that from C. Tua de Testam. and from Trent sess. 22, c. 8 de R., it is imposed on Bishops to execute all pious dispositions, both in last will and inter vivos.

"Laymann nevertheless judges very probably, and the Salmanticenses, etc., agree, that if some cause supervenes, or if it was unknown to the testator, which, if he had known it, he would have disposed otherwise, then the Bishop with the heir can by epikeia interpret the will of the testator and convert the legacy to another use, for example if a legacy has been left for making sacred vessels which the church does not need, but rather chasubles. But when pious legacies can in no way be applied to the use intended by the testator, they are not caducous, but must be applied to another pious use at the judgment of the Bishop and executor." L. 931, 939, 940; Lugo Resp. Mor. 1. 4. d. 32. n. 1, 8, 9, 10, 11.

There is certainly no opposition between c. 8 and c. 6 of the cited Council of Trent; but each faculty, as appears from the tenor of the text itself, is asserted of Bishops, and accordingly from the Council of Trent they truly are executors of pious dispositions, and can commute them from a just and necessary cause. - According to the cited chapter 6 of Trent, Bishops cannot make commutation unless from a just and necessary cause, copulatively. Barbosa Collect. in C. Trid. in l.c.; De Luca Annot. in S. Conc. Trid. Disc. XII. - Trent sess. 25, c. 8 de R.; Collectan. S. C. de P. F. ed. 1. n. 1622; Reiffenst. de Testam. n. 804 seq.

What of division to be made by parents among children? Parents are conceded the ability to divide their things among children, whether by act of donation or by act of last will or testament, with the same formalities of donations or testaments being observed. C. I. 1044, 1045; C. G. 1075, 1076. In order that the division be valid and firm, it is necessary: 1. That it be made among all the children, C. I. 1047; C. G. 1078. 2. That the legitime not be injured, C. I. 1048; C. G. 1079. 3. That if it is made by act of donation, the division comprehend present things only; but if it is made by testament, it can also comprehend future things. C. I. 1045; C. G. 1076. 4. When the division has been made by donation, ownership of the divided things passes to the children from acceptance of the donation, by which the division is perfected. But if it is made by testament, the division is perfected only by the death of the testator, and ownership passes to the children from that death. 5. If any things have not been comprehended in the division, these, just as omitted things, are deferred ab intestato. C. I. 1046; C. G. 1077. By division of the inheritance, the heirs are liable for the debts of succession. C. H. 633, 640.