Case XLVI: Deposition of Witnesses to a Will

Peter bequeathed all his property to Paul, and gave him his will to take care of. In the course of the night in which Peter died, Paul's house was burnt down and the will was destroyed. Peter's natural heirs then took proceedings to get possession of what he had left, in spite of the assertion of a witness (whom they acknowledged to be very trustworthy) that he had read Peter's will and had seen that Paul was appointed sole legatee, except a few bequests ad pias causas.

What ought the natural heirs to do quoad justitiam? and how should they be treated in the confessional?

Answer.—There is no doubt at all about the case as far as the civil law goes, which prescribes: " In default of a valid declaration of the last will, the whole of the deceased's property passes to the legal heirs."

A valid verbal declaration did not exist in this case, and the written document had perished, ergo Paul had legally no claim at all upon the inheritance. The existence of one witness is absolutely insufficient for contesting the will in Paul's favor. According to Canon Law, and therefore also according to Catholic theology, one witness, however trustworthy he may be, is not enough (St. Alphonsus Liguori, Laymann, Holzmann, Lacroix, Viva, Noldin, etc.) to constitute any obligation quoad justitiam, regarding a lost will, or one that never was drawn up. The heirs are therefore not in the least bound, pro foro conscientiae, to give Paul a farthing.

We must regard the bequests quoad pias dispositiones rather differently. Writers on Moral Theology teach almost unanimously that the heirs are bound in conscience to pay bequests for pious purposes, even although they may not have been included in a will, provided there is evidence that the deceased desired money to be applied to such purposes. Two witnesses suffice to impose an obligation pro foro conscientiae.

Of course the natural heirs are not required to search for witnesses, or to try to find out whether the testator expressed no wish that some of his property should be applied ad causas pias. But in this case the knowledge of Paul's statement and of that of the other trustworthy witness regarding the bequests ad causas pias contained in the lost will is enough to impose upon the heirs the obligatio haec legata solvendi pro foro conscientiae.

A confessor should be particularly warned, in a case of this sort, to leave the heirs in bona fide, if in bona fide they pay nothing, and he foresees that no admonition on the subject would have any good result. Delama says: "The confessor, taking account of the ignorance of the faithful, who often persuade themselves only with difficulty that the foregoing assertion is true, ought generally to leave them in good faith; and this according to the common teaching concerning the expediency of admonishing, or not admonishing, penitents who are in good faith about some obligation of justice. But if the confessor is questioned, he will answer." l

I should like to add to the last sentence: There is no dubium prudens regarding the existence of the will. Therefore a confessor might advise the heirs in a friendly way to give Paul something, but they cannot by any means be considered bound to do so.—Prof. Gspann.

1 Cf. Gury, n. 818 (Ed. roma. P. Ballerini procurata); Delama, Dionysius, Tractatus de justitia et jure, Trent, 1881, p. 71, n. 96.