Point I. On the Nature, Division, and Form of Testaments

814. • Definition. A testament is a legitimate disposition concerning those things which someone wills to be done with his goods after his death, with the direct institution of an heir. - St. Lig., n. 919. - Or from Gallic Law: It is an essentially revocable act by which the testator disposes of his goods for the time that will follow his death ¹.

¹ But from Roman Law: "A testament is the just sentence of our will concerning that which someone wills to be done after his death." From Modestinus, L. 1, ff. Qui testamenta etc.

Division. A testament is distinguished in various ways:

1. Solemn, in which all the conditions prescribed by laws are observed. But it is twofold: 1. Closed, which, signed with a seal, is handed over to be subscribed by seven witnesses, suitable, male, puberes, etc., with whom the testator subscribes, if he can; but if he cannot, an eighth witness must accede; 2. Open, which is made before seven witnesses, whether by open writing or by living voice ². - More things among the Jurists.

² More received and more congruent is the distinction into written and nuncupative testament. For although common usage brings it about that this latter is called open, but the former closed (see Lugo, disp. 24, n. 2), nevertheless it is not necessary that any testament whatsoever in writing be closed, as below also is sufficiently gathered from the Author's context.

2. Privileged, which is valid without solemnities: such is a testament made by a soldier, or by others in time of plague, or the remaining circumstances of this sort.

1. Holograph, which is written entirely by the hand of the testator, with indication of the year, month, day, and addition of the name.

2. Public, or solemn, which is written by one notary before four male witnesses, puberes, etc., or by two notaries before two witnesses (Art. 971).

3. Mystic or secret, which the testator, closed and signed with a seal, hands over to the notary before six witnesses, asserting that this is his testament written by himself or by another and subscribed by himself. This attestation must be inscribed upon the codex of the testament and subscribed by the notary, witnesses, and testator. If the testator could not subscribe the testament, mention of this must be made, and another witness is added besides the six required (Arts. 976, 977).

815. • In order that a testament be firm and valid, it is required: 1. that it have the conditions required for gratuitous contracts, and especially free and spontaneous consent; 2. that the disposition of goods be made according to the reservation or legitimate portion assigned by law to the heirs; 3. that it not be made by one incapable of testating, nor in favor of one incapable of receiving, or of succeeding to the rights of the deceased; 4. that the substantial formalities prescribed by law be observed.

816. Questions. - It is asked, 1. Whether the faculty of testating arises from natural law, or only from civil law?

I reply. According to the more common and more probable sentence, it is to be traced primarily to natural law, because such is the common persuasion, which holds last wills as something sacred, and because the right of testating precedes every civil law. For from natural law each one can dispose of his goods as he wishes, even after death, and this is a private right. But the State also has its rights, and among others the right of prescribing norms concerning contracts; this right is natural, inasmuch as it is necessary for the good of society. But if there is a collision of rights, the private right, as lower, must yield. - See the things to be said below, q. 4.

It is asked, 2. What sort of witnesses are required in testaments?

I reply, 1. From Roman Law they must be males, puberes, free, not deaf, not mute, not blind, not intestable by law ³, not heirs from the testament, nor domestics of the testator or heir; nevertheless legatees are not excluded. - St. Lig., n. 919.

³ Those are called intestable by law who according to the laws do not have the right of giving testimony.

I reply, 2. From Gallic Law are required males, majors, subjects of the State, enjoying civil rights, not clerks of the notaries who draw up the act, not legatees or heirs, nor their blood relatives or relations by marriage within the fourth inclusive degree, that is, within the second according to canonical computation for the transverse line. Nevertheless, in a mystic testament legatees or their relatives are not excluded. - Arts. 975, 980.

817. • It is asked, 3. What things are required for validity in a holograph testament?

I reply. Three things are required and suffice, namely: 1. that it be written entirely by the proper hand of the testator; 2. that the day, month, and year in which it was drawn up be added; 3. that the proper name of the testator be subscribed in the form of a chirograph at the foot of the testament and in whole letters. Thus from art. 970. Moreover: 1. The addition of the day, month, and year can be made by arithmetic marks and placed in any part of the testament, but it is safer to write it out in whole letters; 2. the inscription of the place where the testament is drawn up is judged by no means necessary, for from art. 999 a testament is valid wherever it has been made; 3. any paper suffices, although not sealed; if nevertheless the matter is carried before a judge, a fine will have to be paid by the heir (30 fr.); 4. a holograph testament, before it can be put into execution, must be presented to the judge in the Tribunal of first instance; but the judge, after sufficient examination, will order that it be kept with some notary (art. 1007). But this form is altogether accidental. - See Cases, n. 829 and following.

It is asked, 4. Whether testaments for profane causes, destitute of legal forms, are valid in the forum of conscience?

I reply. There is a threefold probable sentence, as was said above, n. 786, generally concerning contracts drawn up apart from the prescriptions of law. Therefore the first sentence admits that testaments of this kind can be held valid according to natural law. - The second sentence teaches that by force of positive law they are to be held wholly void. - The third sentence pronounces that the possessor must be favored until the matter has been decided by the judge ⁴. And this third opinion, according to St. Lig., n. 927, is to be held in practice before the rest. But when a judicial decree intervenes, according to the sentence of all, one must adhere to it. - See Cases, n. 857.

⁴ Concerning this third sentence, see the things noted above (at n. 786).

818. • It is asked, 5. Whether testaments for pious causes are valid if they lack legal forms?

I reply affirmatively, and this sentence is most common and certain: 1. because it is clear from Canon Law, Decret., book 3, title 26, ch. 2, etc.; 2. because pious causes pertain to the Church and are subject to her jurisdiction. But the Church is free and immune from civil power in all those things which are directly subject to her jurisdiction. Wherefore it was thus established by the Council of Trent: "Let Bishops, also as delegates of the Apostolic See, in cases conceded by law, be executors of all pious dispositions, both in last will and among the living." Sess. 22, ch. 8, De Ref. - Thus St. Lig. - Less. - Ronc. and others. - The Sacred Penitentiary, being questioned several times, replied that this sentence must be adhered to.

Therefore the probability of the other opinion does not appear, which otherwise even its patrons reduce almost to nothing in practice. For they think that pious legacies of this kind are valid if it is reasonably presumed that they had been destined both for fulfilling restitution and for prayers for the soul of the deceased.

Nevertheless I add that the Confessor, having regard for the ignorance of the faithful, who often with difficulty persuade themselves that the aforesaid assertion is true, for the most part ought to leave them in good faith ⁵. But if he is asked, as was said above, he will reply. - See Cases, n. 1859 and following.

⁵ This doctrine rests on the common principles concerning the opportunity of warning or not warning penitents, even when obligations of justice are at issue.

819. Cases. - 1. Leander accepts from Liborius, his familiar friend about to depart from the living, a notable sum of money, after the manner of a gift from hand to hand, as they say. When Liborius has died, Leander, doubtful and uncertain whether he can keep the gift in safe conscience, does not know. What will the Confessor reply to one asking? I reply. There is nothing for which Leander should doubt concerning the value of the donation, namely that it is valid as a donation among the living. Make exception: 1. unless the donation evidently injures the right of the heirs; 2. unless the donee is incapable ⁶ of accepting the donation. - Gousset, n. 796, etc.

⁶ Understand: unless he is incapable also in the forum of conscience.

2. Polydorus, dying, says to Paul, the natural heir: Promise me that you will pay these legacies. But Polydorus, trusting in the promises of the heir, abstains from drawing up or changing the testament, or from inscribing the same legacies. Paul, bidding farewell to his promises, refuses to pay the legacies because they were not inscribed in the testament. What is the law? - I reply. From natural law Paul in the forum of conscience is held to paying all the promised legacies, notwithstanding the defect of forms. The reason is: 1. because he accepted the testament only on that condition; 2. because by his promise he impeded the drawing up or changing of the testament.

3. Gabinus, heir from an informal testament, accepts and retains the inheritance as legitimately acquired for himself, but abstains from paying the legacies because of the defect of form in the act of the testator. What must be thought of him? - I reply. How unjust and ridiculous such a way of acting and reasoning is, is clear and evident from common sense. - Voit, De Conscientia, n. 104. - Elbel, De Consc., n. 190. - LaCroix, book 1, n. 573.

4. Anatolius, after making a holograph testament, dies before he could subscribe it. Sabinus, the heir named in this testament, simulates the subscription of the testator so well that it was truly seen as having been made by him. Nevertheless, when suspicion of fraud had arisen, the testament had been brought to the judicial forum, and was declared valid by the judge. What judgment? - I reply. Sabinus is held to restitution, because through fraud he vindicated the inheritance for himself; for, the fraud being removed, certainly by sentence he would have been excluded from the inheritance. Therefore the sentence ought not favor Sabinus, since it rests on a false fact.