Point III. On Testamentary Dispositions, or on Codicil and Legacy

829. • I. A codicil, or little codex, is the last will of the deceased, less solemn and expressed outside the testament, by which he declares what he wishes to be done after his death concerning his things, without the direct institution of an heir. But a codicillary clause is a clause inserted into the testament itself, by which it is declared that if the testament is not valid because of some defect, nevertheless it ought to be valid by force of the codicil.

For a codicil, whether nuncupative, that is, had by living voice, or written, five witnesses suffice, even not asked, and even women. Thus from Roman Law. But in Gallic Law a codicil is not admitted.

II. A legacy is a certain donation left directly by the deceased to someone, and to be furnished by the heir.

A legacy can be: 1. pure or absolute, or conditioned; 2. universal, or particular; by universal title, e.g. I bequeath all movables; or by particular title, e.g. I bequeath such a sum. From Gallic Law no legacies are admitted unless they are included in the testament itself.

830. Questions. - It is asked, 1. Whether a legacy left to girls so that they may marry can by natural law be given to those who become Religious?

I reply affirmatively, if it was left to a determined person, unless it is otherwise established concerning the mind of the testator. - But negatively, if the legacy was left to indeterminate persons, because then testators rather intend to provide only for girls wishing to marry, lest they be exposed to seduction. Thus more commonly with St. Lig., n. 930, against others ¹.

¹ It will not seem idle to have observed that, even as regards this second member of the response, the affirmative sentence was approved by authors certainly grave. Add that the reason by which most were led into the negative sentence, as Cardinal De Lugo admits (disp. 24, n. 293), does not seem sufficiently efficacious. Whether he himself supplied a more efficacious one for this sentence which he set aside, let it be the judgment of the wiser. Surely, if an argument must be sought from the Authentic of Justinian, which all bring forward here, Lugo sincerely admits that the scope of the law is manifest, namely favor toward Religion. But if you turn to the scope of the testator establishing these dowries, namely, they say, so that girls might be rescued from the danger of prostitution who on account of poverty could not marry, indeed, are they any less freed from the same danger who on account of poverty could not enter a monastery? Or shall we say that the mind of the testator looked to this, that girls who are pressed by the evil-persuading hunger and straits of poverty could not withdraw themselves from this danger unless, the proposal of sacred marriage with Christ having been cast aside, they turned themselves to secular vows?

It is asked, 2. Whether a legacy left to girls so that they may marry can be given to girls who have already married without a dowry?

I reply affirmatively, if it is a question of determined girls, because it is presumed that the testator wished to provide for them altogether because of a special affection toward them, or so that, once married, they may live decently. - Otherwise, if it is a question of indeterminate girls, because then the testator is judged rather to have wished to assist those marrying, so that they may avoid the danger of prostitution. - St. Lig., ibid.

831. • It is asked, 3. What comes under the name of movables, or movable goods, in legacies?

I reply, 1. Movable goods are generally those which can be moved from place, such as clothing, animals, money, etc. Movable goods, movable things, movable, or even movables with opposition to immovables, sound the same.

I reply, 2. Movables, without addition and without determination, from Gallic Law are said to be all goods which are not immovables, except money, books, gems, coins, active debts, instruments of arts, linens for the use of the body, horses, arms, grains, wine, hay, and other similar things. Add those things concerning which particular commerce is exercised.

I reply, 3. From the same Gallic Law, furniture or movables precisely furnishing a house are wholly restricted to those things which are ordered to use or the ornament of habitation, such as seats, tables, cupboards, etc.

Hence: 1. The following are movables simply, or from the second class: silver furniture, animals except horses, linens except those which are applied to the use of the body.

2. If the testator says: I bequeath the movables to Caius, and the immovables to Sempronius, Caius has a right to all movable goods, because the mind of the testator is clearly evident from the opposition of movables to immovables. - Gousset, Code commente, art. 553. - Rogron, ibid.

3. If the legacy bears thus: I bequeath to Titius all my movables, or movable goods, or the totality of movables, Titius has a right to all goods not immovable, because the word movables here is not taken without addition. - Gousset, n. 807, and Code commente, art. 533. - Rogron, ibid.

832. • It is asked, 4. Whether the Supreme Pontiff can commute legacies and other last wills of testators when the question concerns pious causes?

I reply affirmatively, if there is a just reason, because he was instituted by Christ as administrator of pious causes, so that he can dispose concerning them according as necessity and spiritual utility require. The same must be said of the Prince as regards profane legacies constituted in favor of the State. - St. Lig., n. 931.

It is asked, 5. Whether Bishops can commute pious dispositions for a just cause?

I reply negatively, speaking generally. The reason is that from Trent, sess. 22, ch. 8, the solicitude of diligently executing last wills is imposed on Bishops. - St. Lig., n. 591. - Nevertheless, more probably, cases must be excepted which, if they had been foreseen by the testator, certainly would have made him dispose otherwise; e.g. if he left money for sacred vessels for a Church, and this Church does not need vessels, or if the legacy cannot be applied to its end because it does not suffice, or because it cannot serve the intended use.