Section — Gury-Ballerini, Compendium of Moral Theology (8th ed., 1884)
§ IV. On Substitution and Fideicommissa
- Although substitution sometimes obtains the name of fideicommissum, nevertheless it extends more broadly, since, taken generally, it is defined: a disposition by which someone is called to an inheritance or legacy in default of another.
Substitution is twofold: one fideicommissary, which is the same as fideicommissum; and another direct, by which someone directly and in his own name is called to the inheritance in place of another, if indeed the latter is unable or unwilling to accept the thing.
A fideicommissum, or better, fideicommissary substitution, is that by which the heir instituted by testament or coming by intestacy is burdened and obliged by the deceased to restore or hand over the whole inheritance, or a part of it, to another. - Schmalzgr., book 3, title 26, n. 126.
Questions. - It is asked, 1. What substitutions are prohibited by Gallic Law?
I reply. All dispositions are prohibited by which someone is called to receive something under the burden of preserving it and then handing it over to a third party 1. Hence substitutions are not prohibited in which the goods ought not to be preserved for some time, but are immediately transmitted to the third party.
1 Gallic Law (art. 896) does not forbid these dispositions in the sense that the institution of the heir or legatee is altogether void, but it exempts the legatee from the burden of preserving and handing over the things accepted to others.
- QUESTION 2. What substitutions are permitted by Gallican law?
I answer. 1. Direct substitutions are valid, that is, a testament by which a second legatee is instituted in default of the first, if the first should be unwilling or unable to accept the legacy. Thus art. 898.
- Donations by which the usufruct is given to one person, and the ownership of the thing to another, are not to be considered as substitutions 2; for each immediately becomes the proprietor of the thing bequeathed to him. Thus art. 899.
2 By force of art. 898, those dispositions which the Author notes in the first place are not to be considered as substitutions. Therefore in reality only those things which he soon gives in the third place belong to this question.
- Dispositions are valid by which one donates goods of which he has free disposition to another, with the burden of transmitting them to one or more of the descendants of the donee, provided only to the second degree. Thus the law of May 17, 1828, modifying art. 1048 and following of the Civil Code.
QUESTION 3. Are fideicommissary substitutions prohibited by law valid in the forum of conscience?
I answer. The same is to be said concerning these as concerning testaments lacking formalities. Therefore the possessor is to be favored before the sentence of the judge 3.
3 Compare what was said above, n. 786.
- QUESTION 4. Are hidden fideicommissa for pious causes valid in conscience, under the form of a simulated donation or testament, or of a fictitious legacy in favor of a private person?
I answer affirmatively, if they are manual donations, or concern things which need not be kept long before they are handed over; or even probably if they are not to be kept until the death of the donee, because they are not forbidden by law 4.
4 For if such dispositions are not prohibited by the laws, no reason remains by which they can be attacked by those whose interest perhaps it would be that they not be executed.
- For other fideicommissary donations, the answer is to be given as concerning testaments for pious causes lacking the required forms, as we have said above; but recall what was said at n. 818 5. See Cases, n. 867 and following.
5 A declaration of the Sacred Penitentiary of June 23, 1844, should be noted here. This case is proposed: Eudorius, unmarried and lacking necessary heirs, having fallen gravely ill, in order to provide for the good of his soul, determined to leave part of his goods to pious works. To this end, therefore, having made a testament valid according to the laws, he instituted Boniface as universal legatee. But, lest from this disposition his intention be known to the civil authority, he gave Boniface a private writing, in which he manifested to him his pious will and earnestly begged him to fulfill it faithfully. Boniface, after the death of Eudorius, vindicated the whole inheritance for himself, because of the valid testament. It is asked, therefore, whether he can be safe in conscience. The Sacred Penitentiary, having maturely considered the matter, replied: In the proposed case, Boniface is bound in conscience to fulfill the certainly known will of Eudorius, in the forum of conscience.