Title XXVI: On Testaments and Last Wills

Latin source headnote: A bishop can make a testament concerning patrimonial property; but concerning the property of the church or property acquired by reason of the church, he cannot make a testament.

Gregory IX, to Antony the Subdeacon.

It has come to us by the report of certain persons that I., bishop of the city of Atella, when he was departing from this light, by a testament made, instituted his own daughter-in-law heir to eight ounces of his whole substance, and his church to the remaining four. We therefore exhort your experience that you diligently investigate this, and in no way permit whatever he is shown to have possessed to be detained by any person, except only that which it is established he had as his own before the order of the episcopate. But whatever you shall know either to have belonged to the church before his consecration or to have been acquired by the aforesaid bishop while in the episcopal order is to be preserved in the ownership of the same church, [lest anyone presume on any occasion to usurp anything therefrom.]

Latin source headnote: An abbess cannot make a testament even if she never put on the monastic habit.

The same.

Because for those entering [a monastery for the sake of conversion there is thereafter no license to make a testament, but their property becomes that of the same monastery, it has been decreed by the clear definition of the law.] The abbess Gabina complained that S., formerly abbess of her monastery, after she undertook the office of governing, made a testament and left legacies to certain persons, saying that up to the day of her death she had not put on the monastic habit, but had remained in the garments that the priests of that place use, just as she who had been abbess before her had also done, and that this had been permitted almost by custom. (And below:) It therefore seemed necessary to discuss with both our counselors and other learned men of this city what was [to be done] according to law; and, discussing it, they answered that, after she was ordained abbess [in solemn manner] by the bishop and presided in the monastery for many years until her death, the character of her garment perhaps pertained to the fault of the bishop who permitted her to be so, yet could not have inflicted prejudice upon the monastery, but that her property belonged by law to the same place from the time when she entered there and was constituted abbess. And therefore [because concerning the property illicitly left, etc.]

Latin source headnote: If, within a year from the day of admonition, a testament is not executed by the person who ought to execute it, its execution devolves upon the bishop.

The same.

We indeed [judge that your order itself sufficiently compels you toward the imminent fulfillment of pious matters. But lest the intervention of anyone's remission soften your zeal, we have judged that you should also be specially exhorted concerning these things.] It has [indeed] come to us that S., when departing from this light, by a written declaration of his last will commanded a monastery to be founded, whose desire is being delayed by T., a religious woman and his heir. Wherefore we exhort you to admonish her that within a year she ought to establish the monastery that was commanded and to construct all things according to the will of the deceased without dispute. But if within the aforesaid time [she should delay through negligence or cunning to complete anything, so that] whether in the [same] place in which it had been established, or certainly, if it cannot be there and it is pleasing that it be established elsewhere, she should neglect to fulfill it with you, then let it be built by you, and let all things be assigned by you to that venerable place without any diminution. For thus you will both escape before your dreadful Judge a sentence of remission, and, according to the most pious laws, it is fitting that the delayed pious wills of the dead be fulfilled by episcopal zeal.

Latin source headnote: A legacy is owed although it was left by the testator in bare words. The same, to Peter the Subdeacon.

The same, to Peter the Subdeacon.

Upon the indication—(And below:) We learned, moreover, from the report of R. that, when the wife of Redemptus was dying, she ordered one silver basin to be sold in bare words and the proceeds to be given to her freedmen, and that she left a silver dish to a certain monastery; in both of these matters we will that her will be fulfilled in all respects, [lest from the smallest matters we incur greater sins.]

Latin source headnote: A legacy is not owed when the testator bequeathed a thing that was not his own but the church's. This it says by adhering simply to the letter.

The same, to Bishop T.

Our son F., [a most eloquent man coming to us,] complained to us that the late P., his father, left to your church, for the sake of his burial, certain things subject to another's right. And indeed the laws of the age hold that an heir is compelled to make payment if his author bequeathed a thing belonging to another. But because we live by the law of God and not by the law of this age, it seems to me greatly unjust that the things bequeathed to you, which are said to belong to a certain church, should be retained by you, who ought to have restored things belonging to another.

Latin source headnote: An heir who does not fulfill the commands of the testator is interdicted by the bishop from the property left by the testator. This it says by adhering to the letter.

From the Council of Mainz.

If the heirs do not fulfill the commands of the testator, all the property that was left to them, together with its fruits and other emoluments, is to be canonically interdicted by the bishop of that place, so that the wishes of the deceased may be fulfilled.

Latin source headnote: Clerics cannot make a testament concerning goods acquired through the church.

From the Lateran Council.

Since in duties of charity we are bound in the first place to those from whom we know that we have received a benefit, certain clerics, on the contrary, when they have received many benefices from their churches, presume to transfer to others goods acquired through them. Therefore, because it is established that this was also prohibited by the ancient canons, we nevertheless also prohibit it, [and,] wishing to provide for the indemnity of churches, whether they have died intestate or wished to confer them upon others, we command those goods to remain with the churches. Moreover, etc. (cf. c. 1, That Prelates Not Delegate Their Powers, V. 4.)

Latin source headnote: Clerics can make moderate alms from goods acquired through the church, even when placed in sickness.

Alexander III.

In addition, let it be known to you by the present letter that clerics cannot by law make a testament concerning movables that they have acquired through the church; nevertheless, while living and in possession of themselves, they can moderately dispense some things from those goods, not by reason of a testament but with a view to alms, even when placed in sickness.

Latin source headnote: Clerics can make a testament concerning their own goods or those acquired by reason of their person, but not concerning those acquired by reason of the church.

The same, to the Bishop of Vigevano.

Because your prudence led you to consult us as to whether secular clerics can make a testament concerning movable or immovable property, we answer your consultation in this manner: although clerics may freely dispose of those things that they obtained by paternal succession, by reason of kinship, or from a craft, or that came to them by a gift of their relatives or friends without respect being had to the church, nevertheless by law they can make no testament concerning those things that they received in consideration of the church.

Latin source headnote: A testament that a parishioner makes before the parish priest and two witnesses is valid, and a contrary custom is not valid. This it says by adhering to the words of the letter.

The same, to the Bishop of Ostia.

When you, brother bishop, were constituted in our presence, you proposed to us in a diligent account that such a custom obtains in your bishopric: testaments that are made as a last will by those who have power over others are utterly rescinded unless they are made with the subscription of seven or five witnesses, according to what human laws decree. But because this is known to be alien to divine law, the institutes of the holy Fathers, and the general custom of the church, since it is written, “In the mouth of two or three witnesses let every word stand,” we utterly disapprove the aforesaid custom; and we decree that testaments that your parishioners shall henceforth make as a last will before their priest and three or two other suitable persons are to remain firm and possess the strength of perpetual firmness, prohibiting under threat of anathema that anyone dare, by any presumption, to rescind testaments of this kind. [Moreover, since princes, etc.]

Latin source headnote: A last will for pious causes made before two witnesses is valid, and it is a singular case.

The same, to the Judges of Velletri.

It has been reported to our ears that, when some cause concerning testaments left to a church is brought to your examination, you wish to proceed in it according to human and not divine law and, unless seven or five suitable witnesses have intervened, you wholly postpone judging thereupon. Wherefore, because causes of this kind concerning the judgments of the church ought to be treated not according to the laws but according to the canons, and for these, as divine scripture attests, two or three suitable witnesses suffice, by apostolic writings we command your discretion that, when any such cause has been brought to your examination, you treat it not according to the laws but according to the statutes of the decrees, and, after requiring three or two lawful witnesses, [be content,] since it is written: “In the mouth of two or three witnesses every word stands.” [Given at Benevento, on the Kalends of January.]

Latin source headnote: A cleric can make a testament concerning his own goods; as to goods acquired through the church, even if they are movable, the church or the successor succeeds; nevertheless, he can bestow some things upon servants or the poor. But if the deceased has several churches or benefices, an equal division will be made among them.

The same, to the Bishop-elect and Chapter of Cassano.

It has been reported to our ears that, because we established in the Lateran Council that goods acquired through the church devolve upon it at the death of clerics, you doubt whether this is to be understood only of immovables or also of movables. You also seek to be taught by our answer whether the aforesaid goods pass by law to the use of the bishop or of him who succeeds the dying cleric, or ought to be applied to the common utility of the church. To these things, therefore, briefly we answer that in general any goods acquired through a church ought, according to the Lateran Council, to remain with it after the death of the acquirer. By the name of the church, however, not only the bishop or the successor of the dying cleric, where there is a college of clerics, but the common congregation is understood, which ought to have the canonical distribution and care of those things. But where only one person is to be ordained in place of the deceased, let him dispense those goods, just as the other goods of that church, in the fear of God. Although movables acquired through the church, as we have determined, cannot by law be transferred to others at the choice of the dying person, nevertheless it is a custom not to be disapproved that some things from them be conferred upon the poor, religious places, and those who had served the living person, whether they are relatives or others, according to the merit of their service. But the things that come from inheritance, a craft, or learning are to be distributed according to the choice of the person dying. Since, however, some persons possess benefices in different churches, we distinguish thus: the things they had are to be divided among them according to a fitting valuation.

Latin source headnote: A testament is valid if someone commits his last will to the disposition of another, and he is said to have made a testament for pious causes. This it says according to the more notable understanding.

Innocent III, to the Bishop of Auxerre.

When to you concerning kindness—(And below: [cf. c. 18, On the Meaning of Words, V. 40.]) But on the second question we say that one who commits his last will to the disposition of another is not seen to die intestate. [Given at the Lateran. 1202.]

Latin source headnote: The bishop seeks his portion from things left to the church, although something was left to him by the testator, unless it was left by the testator in such a way, and not in fraud, that he should remain content with that portion, and he acknowledged the legacy.

The same, to C., Cardinal Priest of the title of Saint Lawrence in Lucina.

Of the office—(And below: [cf. c. 38, On Election, I. 6.]) Secondly, you asked: when someone in a testament leaves his own portion to the bishop and leaves many other things to monasteries or churches and others, whether the bishop can seek his lawful portion from those things; adding whether, when someone by testament, in fraud, has established a small mortuary and has left many other things for his soul, the bishop can nevertheless exact from the other things the portion established by the canon. But concerning these matters, we answer your consultation in this manner: if he bequeathed that portion to the bishop with the condition that he be content with it alone, and the bishop accepted it, because through this he is seen to have renounced the other things, he will not be able to exact a portion from the rest. But if he left it to him absolutely, he will nevertheless be able to vindicate from the rest the portion owed to him. If, however, it is established that he established a small mortuary in fraud so that in the rest the bishop would be defrauded of the portion owed, because fraud and deceit ought to afford patronage to no one, the bishop will be able to exact from those things the portion established by the canon, saving the indulgences of the Roman Pontiff that have been granted to certain regulars. [You asked, etc.; cf. the following chapter.]

Latin source headnote: A thing left to a bishop in consideration of his person is not divided with the cathedral church; otherwise, if it is left in consideration of the church, whether nothing is left to the church or something is, whether jointly or separately. But if a bequest is made to the church alone, the bishop will have the canonical portion. A bequest is presumed to have been made in consideration of the church when it is made to an outsider having an administration; otherwise, if it is made to one not having an administration. But with inferior churches the bishop does not divide what is left to him, because he does not have as great a communion with inferior churches as with the cathedral.

The same.

You asked how those things that a testator bequeaths for his soul in his last will are to be divided between the bishop and the church. And indeed it is regularly true that the bishop ought to have from them a third or fourth portion according to diverse customs; but it must be diligently considered whether the testator bequeaths in this manner: “I leave,” he says, “this to the bishop”; or, “I leave this to the church”; or, “I leave this to the bishop and the church”; or, “I leave this to the bishop, and I leave that to the church.” In the first case a distinction must be made as to whether that is left to the bishop by an outsider or by a relative. If by an outsider, it is generally true that it is presumed to have been left in consideration of the church, not of the person. Hence the cathedral church can seek a canonical portion from it, just as his own portion belongs to the bishop if something is left to the church itself. And this indeed is true unless the testator expresses that he wishes it to belong only to the bishop, not to the church. In that case the disposition of the testator is to be observed; but otherwise if he expresses that he wishes it to belong only to the church, not to the bishop, because the private disposition of the testator cannot alter the general constitution of the canon. Nor is what is read in the canon contrary to this, namely, that pontiffs to whom something is left or donated by outsiders either together with the church or separately—because he who donates is proved to offer this for the redemption of his soul, not for the advantage of the priest—shall reckon it among the resources of the church not as their own property but as something left to the church; for this is true when the testator bequeaths that thing separately to the bishop in such a way that he does not express whether he wishes it to pertain only to the bishop and not to the church. But if that is left to the bishop by a relative, it is presumed to have been left not in consideration of the church but of the person, unless perhaps the contrary were proved, and the church can seek nothing from it during his life. But if it is left to the bishop and the church, a canonical division of it is to be made between them. If, however, this is left to the bishop and that to the church, whether the things left are equal or unequal, they are to be reduced to a canonical division between the bishop and the cathedral church, unless both wish to be content with the disposition of the testator; which, on account of the favor accorded a last will, it is sufficiently fitting to observe where neither fraud nor deceit intervenes and no one is excessively defrauded of the portion owed. But it is otherwise if something is bequeathed to the bishop and some things to chapels, monasteries, or other pious places. For in this case what is bequeathed to the bishop is his preferentially together with the cathedral church, just as if it were bequeathed to any other person. And from those things that are bequeathed to others, he will nevertheless obtain the canonical portion, since there is not as great a communion between the bishop and chapels, monasteries, or other pious places as there is between the bishop and the cathedral church, to which he is joined in spiritual marriage. Hence those things that the bishop acquires he acquires not for them but for this church alone. But this is generally to be observed concerning one who can possess property of his own and does not have a prelacy or administration of a church: if something is specially left to him, not only by a relative but also by an outsider, it is understood to have been left not in consideration of the church but of the person, unless proof to the contrary should appear. And therefore neither the bishop nor the church can vindicate anything from it for itself during his life. And this is understood to be true when fraud is not at all procured; if it is detected, it ought not to afford patronage. [You signified, moreover, etc.; cf. c. 9, On Penance, V. 38.]

Latin source headnote: In the goods of a father, mother, and grandmother, a person has what is owed by the law of nature, in which he cannot be burdened; and a son who is asked to restore an inheritance under a condition deducts what is owed by the law of nature and the Trebellianic fourth, in which the fruits received after joinder of issue are computed.

The same, to the Bishop of Tuscania.

Raynutius de Clera, having two daughters, namely Alterocha and Adiecta, as well as a mother, Clera, and a wife named Adelasia, made a testament when placed at the end of life, leaving to his adult daughter Alterocha, beyond the dowry he had given her, a house and a certain garden in the same testament. But to the minor Adiecta he left his remaining goods, adding that Alterocha and the offspring whom she was carrying in her womb, since she was pregnant at that time, should succeed the same minor if she died without children. The same testator further enjoined the tutors whom he had given to his minor daughter Adiecta to join her in marriage with all her goods. Therefore, after the testator died, the tutors of the minor, according to Lombard law, delivered her with all her goods left to her by her father to a certain man named Peter. And she, after she had cohabited with him for four years and had conceived a son by him, finally died without children; her husband, the same P., surviving for some time, possessed her goods in peace. He, contracting marriage with another woman and conceiving sons by her, closed his last day.

Afterward, however, when matter for a question concerning the aforesaid goods of the same Adiecta arose between Alterocha and Montanellus, her son, on one side, and the sons of the same P. and Raynerius, their tutor, on the other, they began to litigate with one another before G., judge of Tuscania. Before him Alterocha and M., her son, sought the goods of the late Raynutius, the father of the same Alterocha, as owed to them by reason of a fideicommissum or substitution, while Raynerius, tutor of the aforesaid sons of P., said in opposition that prescription of a year, usucaption on account of dowry, and prolonged silence for a long time obstructed them. He alleged further that, before all else, both a third of Clera, mother of the aforesaid R., the testator, and a third of Adelasia, his wife, as well as a fourth by the Trebellianic right in the name of Adiecta herself were to be deducted from those goods. But the said judge, after diligently examining the allegations and reasons of each party, condemned the aforesaid Raynerius, in the name of the tutorship of the wards, to restitution of the goods of the late Raynutius, after first deducting the third of Clera that she had donated to Adiecta and her husband, concerning which he did not appear in any way to have thought in the substitution that Raynutius made; and after also deducting the third of Adelasia that she had sold to the aforesaid P. The same judge also commanded that those thirds be deducted from those things from which they could be deducted according to the custom of the city of Tuscania. The same judge further enjoined that the fourth be deducted by the Trebellianic right, since even any outsider burdened with restitution could have deducted it; but each party appealed from that sentence. (And below:) When, however, there had been lengthy litigation before G., cardinal deacon appointed by us as auditor, he, after taking counsel with learned men, by our mandate pronounced unjust the sentence of the aforesaid judge Guezius, namely, in that he said that the third of Clera and the third of Adelasia were to be deducted in full, and the same cardinal pronounced that an appeal had lawfully been made from it, defining that those thirds were to be deducted in such a way that the legitimate portion owed by the law of nature to Alterocha should remain safe to her in each; to the restitution of this he then condemned the said Raynerius. But in that the same judge held that the fourth part was to be retained by the Trebellianic right, he confirmed that judge's sentence, namely in such a way that the fruits received from his goods, from the time of joinder of issue, by the aforesaid Peter and his sons after the death of Adiecta should be computed in it. If these suffice for the fourth and its fruits, let no other deduction be made under that name; otherwise, an account of computation is to be had according to the quantity of fruits received. Since, however, Adiecta's father could not burden her in her legitimate portion, he held that the legitimate portion itself, namely of the part that would have been owed to her on intestacy, was to be deducted and also retained, namely in such a way that the deduction be made only from those things from which it is accustomed to be made according to the custom of the city of Tuscania. But in that the aforementioned judge condemned Raynerius in the name of his wards to make restitution of the residue to Alterocha and her son, he confirmed his sentence. We therefore, holding valid the sentence of the same cardinal, promulgated as justice required, confirm it by apostolic authority.

Latin source headnote: A bishop compels fideicommissaries or executors of a testament to execute the pious wills of the deceased, even if the testator had forbidden this.

Gregory IX, to the Bishop of Noyon.

Your fraternity intimated to us that some persons, religious as well as secular clerics and laymen, do not hesitate to apply to other uses money and other goods that ought through their hands to be expended for pious uses under the testaments of persons dying. Since, therefore, in all pious wills provision is to be made by the bishops of the places that all things proceed according to the will of the deceased, even though it should happen that this was forbidden by the testators, we command that, after admonition, you compel executors of testaments of this kind to expend those goods faithfully and fully for the aforesaid uses.

Latin source headnote: A son who is asked to restore an inheritance deducts a third by the law of nature and a Trebellianic fourth, in which he can leave legacies, institute heirs, and impose a penalty.

The same.

Raynaldus, son of Pepo, was instituted heir by him in this manner: that he should restore the inheritance to his paternal uncles if he died without male children. After Pepo died, Raynaldus submitted to three arbiters with them concerning certain goods of the same inheritance. After one of them died, the other two, proceeding as they could according to the form of the submission, arbitrated in this manner: neither party should have license to transfer the aforesaid things in any manner to another except to their male children lawfully descending from them, and whatever was done contrary to this should not be valid. Thereafter the said R., having no offspring, made a testament in which he bequeathed half of his share in the aforesaid things to certain maternal uncles of his, but the other half and the remaining paternal goods to one of his paternal uncles and his sons; adding that, if the said heirs of R. should act contrary to the legacy owed to his said maternal uncles, the goods in which they could succeed R. by testament or on intestacy should devolve upon those maternal uncles in determined portions.

Finally, when the same R. paid the debt of nature and one of the paternal uncles entered upon the aforesaid inheritance, the said maternal uncles moved a question against the same paternal uncle and his sons before the judge of the community of Orvieto, seeking the aforesaid legacy according to the share that fell to them, and seeking that, if those men acted contrary to it, whatever had come or could have come to them by occasion of the testament of the same R. be restored to the maternal uncles. The aforesaid judge, absolving those men from their impleading concerning the legacy, condemned them by sentence to restitution of the other goods. When both parties appealed from his sentence to our hearing, each party seeking that the sentence of the said judge be annulled insofar as it had been promulgated against itself and be committed to execution insofar as it operated for itself, our beloved son O., cardinal deacon of Saint Nicholas in the Tullian Prison, after issue had lawfully been joined before him, pronounced that—because the same R. had in the goods of the late Pepo, his father, a third part owed by the law of nature, in which he could not be burdened, and also a Trebellianic fourth, which any outsider burdened with restitution could have deducted, on account of which the aforesaid R. had those portions in the aforesaid things bequeathed to his maternal uncles and could bequeath them in his last will, and through this the legacy was valid up to the aforesaid third and fourth, although he had not expressed them in making the legacy—the aforesaid award notwithstanding, which could not prevent the legacy from being valid, the judge himself had judged wrongly in wholly absolving the said paternal uncle concerning this, who confessed that he possessed half of the aforesaid things. He condemned him to restitution of half of the third and fourth part of that legacy according to the share of it that fell to the said maternal uncles, and confirmed the sentence of the aforesaid judge as to the residue.

But as to the fact that the same judge had condemned the said paternal uncle and his sons entirely concerning the other things sought in the second article, he decreed that the judge had pronounced wrongly, because his sons were not found to have committed anything contrary to the will of the testator, since they were found to possess none of the things sought. But as to the portion that the paternal uncle had in those goods by reason of the aforesaid fourth and third that R. had in the same goods, in which his institution, legacy, and addition of a penalty were valid, for the share falling to the same maternal uncles, he confirmed the sentence of the aforesaid judge concerning the aforesaid legacy, absolving the same paternal uncle and his sons as to the residue; and saving nevertheless to him, by the law of institution, the benefit of the Falcidian law in the restitution of the aforesaid legacy if he obeyed the will of the testator within the lawful time, since he made an inventory and the Falcidian law is introduced against the will of a testator. We therefore, holding valid the sentence of the cardinal himself, confirm it by apostolic authority.

Latin source headnote: A testamentary executor who undertook that office is compelled to execute it.

The same.

John, a cleric, and P., a layman, executors of the last will of O., a cleric of Holy Cross, who in his last will bequeathed from his goods to venerable and pious places, further commanding that his creditors be satisfied through them, ought, after undertaking the mandate, to be compelled by the diocesan bishop to fulfill the testator's last will.

Latin source headnote: It sets forth certain legacies from which the canonical portion is not paid unless it is done in fraud.

The same.

From those things that are bequeathed to churches or other pious places in ornaments or for them, or for the fabric, lights, an anniversary, the seventh, twentieth, or thirtieth day, or for other things pertaining to perpetual divine worship, the canonical portion ought not to be deducted, provided it is not done in fraud so that the bishop or parish church ought to be defrauded of it.