Title XI: On Testaments and Last Wills

The deduction of fourths applies in fideicommissary substitutions, but not in direct substitutions. And we ought to interpret substitutions as direct, provided that they accord with the words and the persons instituted. John Andrew.

Boniface VIII.

If a father who has an impubescent son and daughter and a wife institutes the daughter as heir to a specified thing, but the son as universal heir to the rest of his goods, and bequeaths certain things to his wife in his testament, adding that, if the daughter died without children, she should have that son as heir, and if he died without children, the son should have the aforesaid daughter as heir, while instituting the poor of Christ as heirs if it happened that both children died without children, then, when the testator has died, and thereafter the son and subsequently the daughter have died before the age of puberty while the mother survives, all the goods are carried to the poor themselves without a deduction being made of the Trebellian fourth or of the portion owed by natural law.

For the aforesaid substitutions made from the son to the daughter and conversely, and from them to the poor, ought to be understood as direct pupillary substitutions, since in substitutions an interpretation is always to be made—provided, as in the case proposed, that it accords with their words and the persons instituted—so that the substitution is understood as direct rather than indirect, although a direct substitution is sometimes drawn for cause into a fideicommissum. Although a son cannot by his testament deprive his mother of the portion owed by natural law, nevertheless a father can do so in the testament that he makes for his impubescent son. For a pupillary testament of this kind is to be regarded as the father's testament, or rather as part of the father's.

A superior must consent when religious are appointed executors. This states the point according to Zenzel. — § 1. When several executors are appointed, if one has died, is in remote places, or is unwilling to execute, one will exercise the office of execution, lest the testator's will be impeded, unless the testator disposed otherwise. This states the point according to Zenzel.

The same.

A religious appointed by someone as executor in his last will cannot, since he does not have the power to will or not to will, undertake or execute an office of this kind unless license concerning this has been sought from and obtained from his superior.

§ 1. Indeed, when several executors have been appointed simply by the testator, if one of them has died, is staying in remote places, or perhaps is unwilling to execute it, another can freely fulfill the office of the enjoined execution, lest the testator's will happen to be impeded or excessively deferred, unless the testator expressed otherwise.