§ III. On Testamentary Succession, or on Those Dispositions of Law Which Pertain to INSTITUTED HEIRS and to LEGATEES

909. What a testament is. - "A testament is the just sentence of our will concerning that which someone wishes to be done after his death." Thus Modestinus in Roman Law.² This definition is more conformable to our Law, because it does not require that either an heir be instituted in the testament, or some legacy be left in it. Namely it suffices that the testator declare what he wishes to be done after his death, for example in what manner the funeral is to be held, etc.

910. • In what manner a testament is to be interpreted.

1° Clear words do not receive interpretation.

2° If words admit multiple sense, the mind of the testator is to be attended to. But the mind of the testator is judged to have been that which is more conformable to the nature and object of his last will. He must also be judged to have willed that his testament effect something, and not to have willed anything which is contrary to laws.

3° A condition adjoined to a last will is to be held, a) as not appended, if it is either unintelligible, or impossible, or contrary to good morals or laws (yet see what was said in n. 870, 2°); b) as fulfilled, if he whose interest it was that it not be fulfilled impeded its fulfillment (n. 870, 5°).

4° A testamentary disposition resting on a final motive, either false or contrary to laws or good morals, is to be held null.

5° A disposition of last will obtained by force, fraud, or evil arts, is null.

911. Who can, and who cannot, make testament. - "All persons of sound mind, except infants,... married women," corporations, and with regard to real estate aliens, "are legally entitled to dispose of their property by will; and infants of the age of fourteen, if males, and twelve, if females, may make wills of personal property. But this rule of the common law has been generally modified by statute."¹ Thus for instance in many States married women are not excluded, and in all "the wife may dispose, by will or by act in her lifetime, of her separate personal estate, settled upon her, or held in trust for her, or the savings of her real estate given to her separate use."² "Equity will carry into effect the will of a feme covert, disposing of her real estate in favor of her husband or other persons than her heirs at law, provided the will be in pursuance of a power reserved to her in or by the antenuptial agreement with her husband."³ On the contrary, in many States the restriction laid upon infants has been increased by the prescription that personal property may be willed by males at the age of eighteen, and by females at sixteen. With regard to aliens, see n. 654 and 906, 2°.

If it is a question of a testament to pious causes, by Canon Law those capable are the pubescent, i.e. males who have completed the age of 14 years, and females who have completed the age of 12 years.

912. Who can be instituted heir or legatee. - Generally in this country all natural persons, without exception, are capable of taking by will, provided:

a) They be in being at the time of making the will, or be the immediate issue of persons then in being;

b) They be not subscribing witnesses to the will.

Whether corporations can take by will or not, depends upon the express provisions of their charters. With regard to aliens see n. 654.

913. Of what goods anyone can dispose. - All a man can dispose of in anticipation of death is the surplus which remains a) after all his debts are paid, and b) the widow's dowry (n. 605) has been subtracted. Yet by natural right, as was said in n. 902, some part of the goods must also be left to children, and by reason of charity and piety under grave sin also to brothers and sisters constituted in extreme or grave necessity.¹ - In Louisiana the quota of goods concerning which the testator can dispose is determined otherwise.²

914. • In what form a testament must be made so that it is valid.

Preliminary Note. - A testament is either holographic, which has been wholly written by the proper hand of the testator; or solemn, which has been made by the rite prescribed by law; or nuncupative, which is pronounced by words only; or privileged, which from the favor of law is valid, the customary solemnities being omitted; for most laws concede to sailors and others staying at sea, and to soldiers, the privilege of disposing concerning movable things without the customary solemnity. A codicil is called a disposition of last will by which something concerning a testament is explained or changed by adding or subtracting. A fideicommissum is a disposition of last will by which the testator commits something to the faith of another, for example, fields, whose fruits he may expend for the utility of another.

Which of these testaments are valid in individual States, and in what form, and for what goods they are valid, let each one see from the laws of his State. Let it suffice to note these general things:

a) "Nuncupative, unwritten wills are always unsafe; and, although they are legal under many circumstances, they rarely fail to leave room for troublesome and expensive litigation."³

b) "A codicil... must be executed with the same formality as a testament, - that is, in the presence of the same number of witnesses."¹

c) In making a will the intention of the testator... should be fully and plainly stated; if the testator intends to give the property for a certain number of years, or for life, or forever, he should say so; he ought also to describe the property with reasonable certainty, as, for instance, "my house and lot known as No. 1 Bond Street, New York," or "my six houses and lots known as Nos. 81, 83, 85, 87, 89, and 91 Pearl Street," or "my farm of one hundred and sixty acres, in Claverack, Columbia County, State of New York," or "my gold watch," or "my horse," etc., etc.²

d) "All wills" (the nuncupative excepted) "must be made in writing, with the testator's full name at the end,"³ written either by himself or some other person in his presence, and by his express direction. Every person, however, who shall sign the testator's name to a will by his direction, must write his own name as a witness to the will in the presence of two other witnesses.

e) "Witnesses should always write their respective places of residence after their name."⁴

f) The number of witnesses required varies in the different States. In Pennsylvania, however, no subscribing witnesses are required, provided the signatures to the will can be proved by the oaths of two respectable witnesses.

915. • On the value of an informal testament, i.e. a testament to which are lacking the formalities required by civil law under penalty of nullity.

Query 1° Is a testament of this kind, made for pious causes, valid?

Resp. With the observation premised that testaments are judged to have been made for pious causes insofar as in them something has been left to a Church, or Pious Place, or Sodality, or certainly to a person, so that divine worship, or the good of souls, may be promoted, or the calamity of the poor be relieved, we profess without any hesitation, with the opinion today most common and certain: such testaments, although destitute of legal forms, are valid in the forum of conscience and to be committed to execution; provided it is established to the heir (I do not say: concerning a velleity or inefficacious purpose, but) concerning the will of the testator, whether through his indubitable writing, or through words heard from him or in another similar mode, or also through witnesses; yet in this last case, namely if certitude must be acquired only from the testimonies of others, according to St. Alphonsus,¹ the testimony of one, even of a pastor or confessor, does not suffice, but at least two witnesses are required, whether male or female.

The reason for this assertion is: because by the very fact that someone disposes of his goods for pious causes, this matter becomes spiritual, and therefore subject to the jurisdiction of the Church, which is indeed free and immune from civil power in all things which directly fall under her jurisdiction. But the Church decrees that the aforesaid testaments, provided the will of the testator is established as above, are valid and to be executed for the forum of conscience; as is manifestly drawn both from various texts of Canon Law and from diverse responses of the Sacred Penitentiary, among which we judge especially to be noted here the following response given to the Canon of Angers, on the 23rd day of June, 1844.

"Eudorius, ... destitute of necessary heirs, ... determined to spend part of his goods on pious works. For this end he instituted Boniface universal legatee through a testament clothed with the due forms. But he handed to Boniface a private writing, in which he manifests his pious will and asks him to execute the same faithfully. - But Boniface, Eudorius being dead, keeps the whole inheritance from the fact that he holds it by a valid testament. It is asked whether he can be safe in conscience."

The Sacred Penitentiary responded: Boniface is bound in conscience to fulfill the certainly known will of Eudorius.

Note. - By the name of pious cause do not come those institutes of public beneficence which, by law, are not subject to ecclesiastical direction but only to the direction of civil power. Such are hospitals, hospices, orphanages, foundling-homes, places destined for the care of public want, and other similar things, which among us exist for the use of all citizens indiscriminately under the administration of the civil power alone or of some lay college.

916. Resolutions. - Therefore heirs who refuse to execute a testament for pious causes, certainly known, although informal, cannot be absolved sacramentally; unless perhaps (as often happens in this matter) they are in good faith ignorant of their obligation and there is fear that they will not obey the warning of the confessor. Yet in this case the confessor, if it can be done, should recur to the counsel of the Ordinary, to whom from the Council of Trent¹ the care of execution of pious dispositions has been entrusted.

917. • Query 2° Is an informal testament TO PROFANE CAUSES valid?

Resp. Just as we think it must altogether be affirmed that defect of civil formalities does not prejudice pious testaments, so on the contrary we easily concede that defect of the same formalities can greatly harm profane testaments, if such was the mind of the legislator, to whose jurisdiction profane causes are subject. But whether the mind of the legislator was in fact such, namely of invalidating informal testaments of themselves even for the internal forum, is very greatly controverted. Three opinions are commonly brought forward, of which the first affirms, the second denies, while the third, walking as it were by a middle way, defends that the legislator indeed wished to invalidate informal testaments, but only in such a way that this invalidation would not have its full effect except after the sentence of the judge.²

In so great a conflict of minds, we think the following can be established, as sufficiently consonant with natural equity and the more common practice.

1° An heir from intestacy can licitly use the benefit of the law and seek rescission of an informal testament from the judge, provided he is not from elsewhere bound to the execution of such a testament, say, if by force or fraud he had impeded the making of a valid testament, or if it were a question of testaments for pious causes, for paying debts, or for making restitution.

2° When an informal testament has been rescinded by sentence of the judge, an heir or legatee from such a testament, by force of this testament, will no longer be able to accept anything for himself; and if perhaps they have already occupied some goods in good faith, they ought to return them to the heir from intestacy; nor do they seem able to use occult compensation in any way. Indeed, as regards occult compensation, St. Alphonsus¹ (against others) would not admit it even before sentence of the judge against the heir from intestacy, supposing that the latter was already in real (and not only in fictive) possession of the inheritance. - But if the informal testament has not yet been rescinded by the judge, but the heir from intestacy has certainly proposed to seek that rescission, the heir or legatee from such a testament seems bound to the same thing as above, at least from charity, because, since the rescission is going to be certain, they ought not to be in cause why the adverse party should sustain expenses and inconveniences of litigation. Yet we would not dare to affirm, says Bouvier, that those who even in this case wished to await the sentence of the judge would sin against justice.

3° An heir or legatee from an informal testament, with safe conscience, can enter upon the inheritance and accept the part falling to himself, or demand and retain goods left to him, if the heirs from intestacy do not use their right. Nor are they bound to warn them of the defect of formalities, which perhaps they are ignorant of, provided they have not concealed that defect from them by fraud or another unjust way.

4° Heirs from intestacy, if they have once voluntarily held ratified, confirmed, or paid the donations of an informal testament, seem no longer to have recourse to the judge. L. IV. 928 under 4 and 5.

Note. - He who has acquired and retains the inheritance from an informal testament, by that very fact is bound to the payment of a legacy perhaps imposed on him in the same testament. For it is not licit to change afterward a probable opinion once chosen, if from such a change certainly one law would be violated, as is clear from what was said in n. 76.

918. • Query 3° Is an heir from intestacy, who promised the testator that he certainly would pay the legacies even if the testament were informal, truly bound by that promise?

Resp. With a distinction: either the testator, on account of this promise, abstained from making a testament clothed with the due forms, or from inscribing such a legacy, or not.

If the former: we judge that the one promising is bound in the forum of conscience to preserve the legatee unharmed; for if, by making the promise, he intended not to fulfill it, he committed fraud and thus unjustly impeded another from the attainment of a good, and therefore he is bound to reparation; but if he promised sincerely, he indeed did not commit fault, but he would commit it by changing his purpose and thus inflicting true damage upon him who otherwise would have been instituted legatee.

If the latter: namely if the testator did not abstain on account of this promise, the solution will be various according to the variety of opinions concerning the value of an informal testament. If the opinion is admitted which teaches that such a testament is valid, it must be resolved that the one promising is bound from justice to fulfill the promise. But if the opinion is admitted which teaches that such a testament is invalid, it can be resolved that the one promising is not held from strict justice, since a private agreement cannot derogate from the disposition of laws, as supposed in this opinion.

Therefore, when the case assigned here occurs, fulfillment of the promise seems able to be much advised and urged by title of fidelity, but not imposed under grave obligation, unless perhaps it is a question of paying debts or of pious causes, to which this whole third question in no way pertains.

But if that promise were confirmed by oath, according to St. Alphonsus (see n. 866), it would have to be observed under grave obligation, not indeed from justice, but from religion, unless the bond of the oath is relaxed by competent spiritual authority.

919. In what manner a testament is revoked. - "The will of the deceased is ambulatory up to the supreme end of life,"¹ i.e. a testament can be revoked or changed as long as the testator is among the living. The cases in which a testament by our law is judged revoked are nearly these:

1° "Marriage and the birth of a child after" the will has been made, "provided such wife and child were unprovided for."²

2° "The will of a single woman is annulled in law by her marriage. But a woman," as has been said (n. 911), "may make a deed of settlement of her estate before marriage which shall empower her to retain her right to make a will after marriage."¹

3° "A sale of, or an agreement to sell, property devised in a will, is a legal revocation of a will."²

4° "Children born after" the will has been made, "and not provided for by settlement, are entitled, at the death of the testator, to such share of the property as they would have had if no will had been made."³

5° A will is also revoked: a) by intentionally destroying, tearing, cancelling, or obliterating it; b) by making a subsequent will; but generally the subsequent will must either contain words expressly revoking the former, or make a disposition of the property different from, and incompatible with the preceding;⁴ c) by making a codicil for the express purpose of revocation.

In what manner a testament is revoked in Louisiana, see Civil Code of Louisiana.⁵

920. On the execution of a testament. - 1° The executor is instituted by the testator; but "no person can be an executor of a will who, at the time the will is proved, is either an alien, under 21 years of age, a drunkard, a convict, or deficient in understanding." Nor can a married woman be appointed. If no executor be appointed by the testator, or if the one appointed renounce such appointment, the law provides for one in different ways in the different States.

2° A will is of no effect until probate has been made, and the first duty of an executor is to have the will proved in the proper court.

3° After probate of the will, the executor is to follow its directions as far as they go; in every case, however, he has to make an inventory of the goods of the testator and to pay his debts according to the order prescribed by law.