Chapter — The Casuist
Case XXXVIII: Can a Bequest for Masses in the Testament of a Suicide Be Executed?
Sempronius, a man in comfortable circumstances, and regular in the performance of his religious duties, made, while still in the best of health, his will, which contained, amongst other things, the provision that after his death a number of Masses should be said annually in his parish church for the peace of his soul, a considerable sum being set aside for this purpose. After drawing his will, Sempronius lived his usual life for several years in the best of health, when suddenly the community was shocked by the news that Sempronius had committed suicide. The validity of the suicide’s will was not disputed in any way, and the heirs sought to execute also the bequest for the foundation of Masses for the departed. The question is asked: Can this legacy for Masses for the repose of the soul of a suicide be accepted and carried out by the Church?
The suicide’s pastor, to whom the heirs applied in this matter, was not a little surprised, as may be imagined, at the suggestion, but after some reflection he arrived at the following conclusions: (1) It appeared to him that the bequest of Sempronius should be accepted and the Masses said, because it was the deceased’s expressed desire, and, because now unalterable and sacred, ought to be carried out. It seemed to him that ecclesiastical, as well as State, laws were in favor of this view. In a decree of Pope Gregory IX. bishops are enjoined to take particular care that executors of a will proceed in all things according to the intention of the testator,* and to carry out carefully all his directions.
* According to the explanation of Canonists the last will is called testamentum quia testatio mentis est.
The decree* orders since in all pious dispositions provision must be made by the bishops of the places that everything proceed according to the will of the deceased, we command that, after prior admonition, you compel executors of wills of this kind faithfully and fully to expend the goods themselves for the aforesaid uses (pious uses).
* Cap. XII. (lib. 3. tit. 26).
(2) This view the pastor was inclined to take also for the reason that the validity of the will had been established beyond question. The executors in urging the carrying out the bequest for Masses acted in perfect accord with both ecclesiastical and State law. The executors of a last will, thus ordains the Pope named,† after receiving a command through the diocesan bishop, must be compelled to fulfill the testator’s last will.
(3) In this opinion the pastor is supported by ecclesiastical decrees according to which even verbal bequests are to be strictly carried out, and which threaten with excommunication those who omit to execute bequests for pious purposes. Gregory IX.‡ ordained We have learned that a wife, when dying, left a silver dish to a certain monastery by bare words. In this we will that her intention be fulfilled; and the Synod of Mayence prescribed: If the heirs do not fulfill the testator’s commands, let all property left to them be canonically interdicted by the bishop of that place, so that the wishes of the deceased may be fulfilled.§
(4) The pastor realized that the bequest of Sempronius, in view of his subsequent suicide, was something quite extraordinary, and that the carrying out of the same would in all probability be opposed by considerable difficulties, yet he decided in favor of its
†Cap. XIX., l. c.
‡Cap. IV., l. c.
§Cap. VI., l. c. validity on the principle: In dubio standum est pro valore actus, and on the strength of the law which says: A judgment holds for the defendant, not for the plaintiff, except in a favorable cause, for example in marriage, liberty, dowry, or a testament.
(5) The pastor, finally, believed to find support of his view in the decree of Alexander III. (Cap. 26, x lib. 2, tit. 28), according to which bequests for pious purposes, may be considered as valid, even though their form would not be recognized under civil law, because the strict requirements of the profane law are not considered to govern such bequests. We command, states the Pope (Cfr. Ferraris, l. c., Art. II, num. 5, et seqq.), that whenever any such cause has been brought before you for examination, you treat it not according to the laws (namely, civil laws), but according to the statutes of the decretals (that is, ecclesiastical laws), the required three or two lawful witnesses having been summoned.*
* It is to be mentioned that the matter is judged here from the viewpoint of ecclesiastical legislation.
The Rota gave decisions in the same sense under date of March 11, 1689, and of June 23, 1704. Hence some of our best authorities in Canon Law (for instance, Fagnanus, Reiffenstuel, Pirhing, Engel, etc. (Cfr. Ferraris, l. c., num. 6, et seqq.) hold that bequests for pious purposes (ad pias causas) enjoy special privileges, not merely pro foro interno, but also pro foro externo.
On the other hand, the pastor was mindful of the manner of Sempronius’ death, and he realized that the accepting of this legacy for Masses would cause considerable misgivings in the congregation, and that the people would be scandalized at seeing Masses said for a suicide. For this reason it seemed to him, after all, more probable that Sempronius’ legacy for Masses could not be accepted. In this predicament he decided to submit the matter for decision to his bishop.
In order to solve the question properly it must be ascertained (1) whether Sempronius was in sane mind to the end, and, also, whether he desired the Masses said only for himself; (2) whether it was his intention that the Masses be said for himself and for his relations.
Ad. I. If this is the case the legacy for Masses cannot be accepted, nor can Masses be said. A decree of Pope Gregory II. (cap. 21, c. 13, qu. 11; cf. cap. 13, l. c.) expressly states that only for pious Christians, who reconciled with God departed this life in the state of grace, but not for the impious, can prayers be offered after their death.* That Sempronius, who ex hypothesi voluntarily took his life, cannot be numbered among the former may be supposed with certainty.
* Hence, the priest prays in the Commemoration of the Dead: Those who have gone before us with the sign of faith and sleep in the sleep of peace.
The Pope states: The holy Church so holds that each person should offer oblations for his own who were truly Christians and that the priest should make commemoration of them; and although we are all subject to sins, it is fitting that the priest commemorate and intercede for the Catholic dead; but it will not be lawful to do such a thing for the impious, although they had been Christians.
If then not even public prayers may be offered for such departed, still less can the holy Sacrifice of the Mass, the supreme prayer, be offered for them. The bequest of Sempronius seems, for this reason, invalid and the Church cannot accept it.
According to the teaching of the Catholic Church, the sacrifice of the Mass can only be offered up for her faithful children and living members, and Sempronius through his own act voluntarily departed from their ranks. Far is it, thus teaches the Council of Trent, from being the case that the bloody oblation of Christ is in any way diminished by the unbloody oblation.
Therefore it is rightly offered according to the tradition of the Apostles not only for the sins of the living faithful ... but also for those who have died in Christ and have not yet been fully purified.
As it cannot be held of Sempronius that he departed this life in the peace of the Lord, the Church, by accepting bequests for Masses to be said for him, would act contrary to her own teaching which, of course, is not to be thought of.
Moreover, the intercession of the Church would not avail Sempronius. If he culpably put a violent end to his life, he died in grievous sin, and not in the state of grace.* Hence, St. Augustine writes (Euch. c. 109, et 110; cf. cap. xxiii, l. c.): But these things—the sacrifices of Mass and alms—benefit the dead then when, while they lived, they merited that these things might afterward benefit them. ... The sacrifices of the altar are propitiations for those not exceedingly evil; for the exceedingly evil they are no help to the dead.
* Cf. Eccl. xi, 3; Matt. v, 26.
The well-known axiom of this Father of the Church, Quis potest scire (whether such an unfortunate in the last moments of his life did sincerely repent of his act, and found favor with God), is not to be considered in the application of the law, because decision must be based upon the known premises.
This follows, finally, from the precepts of the Church, by which those who in a sane state take their own lives are to be refused Christian burial. The Roman Ritual (Rit. rom. de Exequiis) prescribes: Ecclesiastical burial is denied to those who kill themselves through despair or anger, but not if this occurs through insanity, unless before death they gave signs of repentance.
The Congregation of the Holy Office prohibits this even more emphatically in the words (Die. 16, Mai., 1866): When it is certainly established that [the suicide arose] from anger or despair, ecclesiastical burial must be denied and the pomp and solemnities of the funeral rites must be avoided. If then such persons are refused Christian burial, it is not possible without contradiction to accept, or say, Masses for them. Otherwise the Church would, on the one hand, censure such a departed by depriving him of Christian burial, while by accepting and executing a bequest of Masses, she would exonerate Sempronius from culpability: he would be considered unworthy of Christian burial: but worthy of the honor, the greatest grace, of having the holy Sacrifice offered for him. On the one hand, the Church would put her ban on the crime of suicide by refusing burial, upon the other, she would, by the execution of such a bequest for Masses, paralyze her ban, and confound the faithful in their religious sentiments and convictions. St. Ambrose (De Offic., lib. II., c. 28) says rightly in this respect: In the burials of Christians is the repose of the dead.
Ad. II. Did Sempronius intend, however, that the foundation of Masses should be executed not only for him, but at the same time for his departed relatives, the bequest may be carried out in the only manner in which it can be carried out. Since, as shown above, Masses for Sempronius cannot be said, the Masses thus founded would be offered for his departed relatives, and the fruits of the holy Masses, to which, by the wording of the testament, they were entitled, would not be lost to them.
It cannot be objected that such an execution of the bequest would be incomplete, and, therefore, illegal. We have shown that the bequest, in so far as it concerned the testator, cannot be executed. This fact will not invalidate the other lawful stipulations and they must be executed by establishing a foundation of Masses for the departed relatives of the testator, so that their claims, established by Sempronius, will not be frustrated. The testator cannot profit by his bequest in consequence of his detestable act, yet his departed relatives must not be deprived of the advantage intended for them, and this part of the testament should be fulfilled according to the will of the testator.
Nor can it be objected that with the invalidation of one provision of the testament, the others become eo ipso invalid. This would only be the case, if it could be proved that both stipulations of the testament were inseparably connected with one another. It follows that the bequest, in so far as it concerns the departed relatives of Sempronius, can be executed without the least scruple. In regard to this rather delicate question Ferraris teaches (Anniversarium, num. 15) that in such a case the will only in as far as it concerns the testator, not, however, in so far as it concerns his departed relatives, is ineffective because the stipulations in the testament regarding the latter have the same force as those which refer to the testator. If an anniversary has been established by a testator for his own soul and the souls of his relatives, writes this author, the testament does not cease to have effect—namely in a case of voluntary suicide—because, although such an anniversary cannot attain its effect in favor of the testator, the suicide, it can nevertheless attain its effect in favor of the others, his blood relatives. ... For in this disposition the suffrages for the souls of his relatives have equal principal standing with those for his own soul.
Can the executor of the estate claim that the bishop is obliged to accept the bequest for Masses in the intention of Sempronius, and that for this reason it must be executed in accordance with his intention? Not at all. The bishop is strictly bound by the above-quoted Church laws. Furthermore, without his consent, and this is to be remembered in the question before us, no foundation of Masses can be made, as is confirmed by the quoted decisions of the ecclesiastical law (Cfr. cap. 3, 6, 17; lib. 3, tit, 26) and by general ecclesiastical usage. The decision of the Council of Trent* regarding the execution of pious bequests through the bishop of the diocese, reads: The bishops also, as delegates of the Apostolic See in cases granted by law, are to be the executors of all pious dispositions, both in a last will and between the living.
This decree obviously presumes that bequests must be accepted and approved by the bishop, and this again presumes that the bishops have the right to decide whether a legacy for Masses can be accepted and executed. For, as Craisson says† very appropriately, it is not likely that bishops would be so strictly bound by the mere last will of subjects which they themselves had not approved.
So important an institution, for the individual as well as for the Church, as without doubt the foundation of Masses is, requires continual and rigid supervision, as otherwise it may easily be abused, and untoward things may happen. For this reason the authorities teach:‡ Right order demands, and the canonical rules forbid, that foundations be accepted without the bishop’s prior consent.
If, therefore, the bishop has the right to accept and sanction foundation of Masses, he has also the right to refuse legacies for Masses, either wholly or—as in our case—in part, inasmuch as he cannot approve of a foundation which would be in contradiction to doctrine and law.§ Otherwise the right of the ecclesiastical superior would depend upon the will of the individual testator, and hence
†Manuale tot. juris can.
‡Praelectiones juris can.
§It is to be remembered that such bequests often contain strange stipulations. If the foundations thus provided for should be realized, bequests for Masses and wishes of testators must frequently be subjected to thorough revision. Not infrequently such stipulations have to be cancelled altogether, without any objection from the executors of the will. be illusory—which is against the plain provisions of the law— and the Church would often be brought into contradiction with her - Canons, as well as with the lawful demands of the faithful.
It must not be overlooked, finally, that a bequest for Mass foundations and its acceptance by the bishop has the character of a contract. To conclude a contract, especially a contractus onérosus, the consent of both contracting parties is required.
Contractus—thus the 85 regula juris—ex conventione (agreement, consent) legem accipere dignoscuntur. Every obligation presupposes the voluntary consent to assume the same. Consequently, it depends upon the consent of the Church, whether she will receive a legacy or not. The Church can manifestly only accept a legacy that is legally and morally acceptable, which can not be claimed for this bequest of a suicide.
This is evident also from the decision of the Council of Trent, according to which the bishops in regard to Mass foundations—if, for instance, their number is too large in a church and the stipend insufficient—may make disposition as they consider right and practical, and under certain conditions they may even reduce such Mass foundations. If they can do this, then a potiori they can alter Mass bequests, or refuse them altogether, if they consider their execution impossible or not practicable. Hence, prominent theologians hold that the bishop may issue an individual statute for his diocese and decide the conditions under which a Mass bequest may be accepted and executed (Praelectiones juris can. l. c., p. 511).
It is evident that the bequest of Sempronius may be accepted, and the Masses said, if it is proved that he was in unsound mind when he sought death by his own hand. For reasons of prudence a Mass thus founded should either not be published at all from the pulpit, or only after a sufficient lapse of time. The Congregation of the Holy Office gave in regard to the burial of such persons the following decision: When the insanity of the suicide is certainly established, ecclesiastical burial is given with the solemnities of the funeral rites. If in such case a solemn funeral is allowed, the essential element being the offering of the holy Sacrifice of the Mass for the departed, it is plain that for such a person also anniversary and other Masses may be accepted and said. Dr. Anton Brychta.