Case XXI: Executing the Provisions of a Will

Titius, being seriously ill and having no near relatives, made a will and left all that he possessed to Cajus, a priest, and an intimate friend of his for many years. Titius, however, added certain provisions to his will, which he required Cajus to fulfill. First of all, Cajus was to say one hundred Masses for the repose of Titius' soul. Secondly, Cajus was to give one thousand dollars to a certain orphan asylum. Lastly, Titius had made a vow to make a pilgrimage to the shrine of Our Lady of Martyrs at Auriesville and to present to the shrine a gold chalice to be used on the altar of the shrine, and as he had not fulfilled this vow, he required Cajus to make the pilgrimage in his name and to make the offering of the gold chalice. After Titius' death, Cajus faithfully executed these provisions of the will, except the one regarding the pilgrimage and the chalice. With regard to these Cajus claimed that as they were vows, they were something personal to Titius and binding only on Titius, and did not descend with the inheritance, and therefore could not be binding on him, as Titius' heir. Was Cajus right, or should he have also fulfilled the provisions of Titius' will regarding the pilgrimage to Auriesville and the gift of a gold chalice?

Answer. Cajus did not do right in not making the pilgrimage and presenting the gold chalice to the shrine. Cajus' reasoning that as vows are personal, they bind only the person making them and do not descend with the inheritance, does not apply to his case. His reasoning is partly false, and what is right in it, does not apply to his case. He should have fulfilled the last provisions of Titius' will, in the same manner that he fulfilled the others. Titius' vow to make the pilgrimage and to present a gold chalice to the shrine at Auriesville was a mixed vow, votum mixtum, part of it being real, and part personal. The personal part of the vow was the pilgrimage to Auriesville. That is called the pars personalis of the vow. The pars realis or real part of the vow, was the presentation of a gold chalice to the shrine. Now as regards this latter part of the vow, the pars realis, the offering of the gold chalice in this instance, there is no doubt in theology but that vota realia do descend to the heirs and are to be executed by the heirs, strictly and in justice, in as far as the estate of the deceased testator will allow of. This is the uniform teaching of theologians and canonists. The reason of it is plain. Real vows, vota realia, that is, vows to make donations or to turn over property, etc., adhere to the property or temporal goods and chattels of the person making the vow, and therefore if such vows are not fulfilled before the death of the person making them, they adhere to the inheritance, and with it they descend to the heirs as a real obligation affecting the property of the testator, andare to be fulfilled by the heirs, in strict justice, as for value received by virtue of an implicit contract. By accepting, of his own freewill, the inheritance, the heir accepts voluntarily not only the advantages and emoluments of the descended estate, but also its debts and obligations. It is simply a case of the bitter going with the sweet. Therefore, Cajus, being the universal heir of Titius, that is, inherit ing all of Titius' property, and of his own free will accepting the same, becomes liable in conscience for all the real debts and obligations attaching to the inheritance; therefore, for the presentation of a gold chalice to the shrine of Our Lady at Auriesville. Indeed, Cajus would be bound to make this gift to Auriesville, even though Titius had made no provision for it in his will, or even though Titius had freed Cajus from the obligation. Because just as Titius could not liberate himself from his vow, once he had made it, so neither could he liberate his estate from the obligation of fulfilling it, nor could he prevent it from passing to his heirs along with his estate. It was just as real as any other debt incumbent on his property, and must be paid out of the estate, by the heirs, if the estate be sufficient.

In regard to the pilgrimage that Titius had vowed to make to Auriesville and required in his will that Cajus, his heir, make it for him, and in his name, it seems to us that Cajus is bound in conscience to make it, just as he is bound in conscience to make the gift of the gold chalice, but not precisely for the same reason. Theologians are agreed, indeed, that personal vows, and such was Titius' vow to make a pilgrimage to Auriesville, do not attach the property or estate of the person making them, but only affect his person. They leave the inheritance intact and do not descend with it to the heirs. On this point there is no disagreement. Nevertheless, in the case before us, Titius constituted Cajus his universal heir on condition or with the understanding that Cajus would fulfill his vow in as far as it was personal also; that is to say, that Cajus would make the pilgrimage for Titius. This was sufficient to bind Cajus' conscience, because Cajus was a voluntary heir, and was not obliged to accept the inheritance if he were not so disposed. In accepting the inheritance of his own free will and volition, he accepted implicitly the conditions on which it descended to him. While in a general or broad sense, it may be true that one person may not bind another person by a vow that is personal, nevertheless it is certain that a testator who bequeaths his property, to which he holds title in fee simple, to another, may add a proviso and burden the heir with the obligation of doing something, in such manner that if the heir refuse to fulfill the obligation by doing the thing required, he shall not receive the inheritance. Since, therefore, Cajus, of his own free will, elected to accept the inheritance left him by Titius, and since Titius constituted him his heir to fulfill also the personal part of his vow, i. e., the pilgrimage, we do not see how Cajus can be excused, once he accepts the inheritance, from making the pilgrimage to Auriesville.