§ 3. ON TESTAMENTARY SUCCESSION

1077. Things to be noted beforehand. A disposition concerning goods of fortune can be made: by testament, by codicil, by legacy, or finally by substitution.

1. TESTAMENT, from modern Law,⁴³ is a disposition concerning those things which someone wills to be done concerning all his goods or concerning a certain part of them, for the time following his death.

Formal institution of an heir is not required, but any denomination is admitted, provided it is clearly expressed how the testator intends to dispose of his goods for the time following his death.

2. A CODICIL is a declaration of last will, less solemn, by which someone, without the direct institution of an heir, decrees something concerning his succession.

In modern Law, a codicil is commonly held in the likeness of a new testament, and in it the prescriptions of a holographic testament must be observed. Otherwise, however, in some provinces of Spain: in Catalonia, Aragon, and Vasconia.

3. A LEGACY is a disposition of last will by which the testator, from goods coming universally to the heir, leaves something to another, in words directed to him, to be furnished by the heir.

It is said: in words directed to him, for example I leave to Titus, etc.; for if the words were directed to the heir, in favor of Titus, it would be FIDEICOMMISSUM.

In FRENCH Law⁰¹ there is no distinction between an heir from testament and a legatee. In testamentary dispositions, three species are distinguished which have the same effects, whether they are made under the name of institution of heir or under the denomination of legacy, namely: 1. Universal legacy, by which the testator donates the universality of his goods, either with the burden of furnishing particular legacies or without this burden. 2. Legacy made under universal title, by which the testator donates an aliquot part of the goods, for example a half or third part, all movables or immovables, etc. 3. Legacy made under particular title, by which a determined part of the goods is donated, for example one thousand gold coins, a library, a statue, etc.

In ITALIAN,⁰² SPANISH,⁰³ and GERMAN Law,⁰⁴ the first and second species of disposition bestow the quality of heir, the third disposition the quality of legatee.

4. SUBSTITUTION is a disposition of last will by which another is subrogated into the place of an heir. It is vulgar or direct, and fideicommissary.

Vulgar substitution is a disposition by which, into the place of an heir who cannot or does not wish to accept the inheritance, another, indeed even a third and fourth, is substituted.

Fideicommissary substitution, or fideicommissum, is a last will by which the testator commits something to the faith of an heir or legatee, to be handed over to another. But the thing committed must either be handed over immediately, or be preserved by the fideicommissary heir for some time, generally until death, and afterwards be handed over to another (cf. 1068, 2).

In modern Law, fideicommissum is either altogether excluded⁰⁵ or is subject to peculiar laws.⁰⁶ But it must be recalled that fideicommissary substitution for pious causes has force in the forum of conscience; for from Canon Law, by which they are governed, they are held valid.

These things having been set forth, we must treat: 1. of the requisites for the value of a testament; 2. of the execution of a testament.

For the VALUE of a testament, some things are required on the part of the testator, others on the part of the heir, others on the part of the form.

1078. PRINCIPLES. I. On the part of the testator there are required: the power of making a testament and a free will of making a testament once had, and not retracted at the time of death.

We say: 1. The power of making a testament is required. - Now: a) From the law of nature, the faculty of making a testament concerning one's own things belongs to all who enjoy integrity of mind and labor under no vice of body by which they are impeded from declaring what they wish to be done concerning their things after death. Therefore by nature the incapable are infants and the perpetually insane, drunk persons, the furious, and all who actually lack the use of reason (III, 942). - b) From Positive Law, some who would be capable by Natural Law are legitimately prohibited; because it belongs to law to provide for the public good.

From modern Law, minors, interdicted persons, and the guilty of certain crimes enjoy no faculty or a restricted faculty. Wherefore the particular laws of various peoples must be consulted. Here we shall add only a few things about the faculty of minors, as being of more frequent use.

From French Law,⁰⁷ one who has not yet been born for sixteen years cannot make a testament. From the seventeenth year to the completed twenty-first year, a minor can, by testament, dispose of half of those goods about which, if he were of age, he would have power to dispose absolutely. From Italian Law,⁰⁸ one who has not yet completed eighteen years cannot make a testament. But when this year has been completed, he can be a testator, like all others. - From Austrian Law,⁰⁹ the impubes cannot make a testament. But those who have attained the years of puberty, but have not yet been born for eighteen years, can make a testament only orally and before a judge. But from the nineteenth year they enjoy full faculty. From Spanish Law, minors of either sex can make a testament after the completed fourteenth year.¹⁰ From German Law, minors not yet born for sixteen years cannot make a testament; from this age then up to majority they can make a testament orally before a notary.¹¹ From English Law, minors are altogether prohibited from making a testament (Crolly, II, 334).

2. A free will of making a testament is required, etc. The things which can be opposed to liberty were said above (n. 1045 ff.), where we treated fear and error.

1079. Points to be noted. a) Any testator can at will, either in part or in whole, revoke a testament made by himself. "For the will of the deceased is ambulatory up to the supreme end of life."¹² But revocation is made either expressly through a new testament or another authentic act, or tacitly through cession of the thing legated. A testament deleted or torn is held as revoked, unless it is established that the violation of the writing was made contrary to the will of the testator.¹³

b) Several testaments made by the same person can subsist together, insofar as namely the earlier does not contradict the later.¹⁴ Yet this is not admitted in Roman, Austrian,¹⁵ and Spanish Law,¹⁶ unless in the subsequent testament express mention is made of the preceding, and unless it is declared whether, either in part or in whole, one must stand by it.

c) A testament is revoked by the law itself if, after it has been made, a necessary heir appears who was altogether passed over.¹⁷ - Yet French Law and Austrian Law do not admit this disposition, but each Law reduces the testament to the disposable part. From German Law, the testament can be impugned by this necessary heir.¹⁸ From Spanish Law, the testament is revoked, but the legacies remain firm unless they are inofficious.¹⁹ In place of this disposition, in English Law this other disposition is in force, namely that a testament, whether of a man or a woman, is rescinded by subsequent marriage (Crolly, II, 363, 2).

1080. II. On the part of the heir, it is required that an incapable person not be instituted, and that a necessary heir not be injured.

We say: 1. That an incapable person not be instituted. Moreover, the capacity of the heir is not required for the time at which the testament is made, but for the time at which the testator dies. But since no natural incapacity is given, anyone who is not prohibited by Positive Law can be instituted as heir, even if he lacks the use of reason.

From modern Law,²⁰ commonly, those intervening in the making of the testament are prohibited from being instituted in the goods left through this testament. In Germany, besides those, no other is declared incapable. - From other Codes, rather commonly, those are prohibited to whom it is not conceded to accept donation between the living, namely: those not yet conceived, unless insofar as substitution is permitted, and those not born viable, as abortive fetuses (cf. n. 741); certain guilty persons, as a penalty of delict; illegitimate and spurious children, who can accept nothing beyond the portion determined by law from their own parents. In French²¹ and Spanish Law,²² a special inability is pronounced in a tutor with respect to the goods of the pupil; in a physician and a minister of worship, with respect to the goods of the deceased to whom, in the last illness, they furnished the work of art or ministry, with respect to confession.²³ Likewise,²⁴ a wife without the consent of her husband, and public institutions without the consent of the government, cannot accept an inheritance deferred to themselves. - From English Law,²⁵ subjects of a nation which actually moves war against the English nation are prohibited from being instituted; likewise, a cessor of goods whose cession is not approved.

2. That a necessary heir not be injured; that is, that he not be excluded, or be frustrated of his legitimate part. A necessary heir cannot be excluded unless on account of causes stated in the law. In this case, the one excluded has a right to food alone, if he does not have this from elsewhere; otherwise, to a determined part of the goods, which is called reservation or legitimate portion.

1081. a) Necessary heirs, from both Roman and modern Law, commonly are legitimate or legitimated descendants; and when these are lacking, ascendants, whether paternal or maternal, but only in the nearer degree.²⁶

From Italian, Spanish, and German Law, the surviving spouse is also computed among necessary heirs.²⁷ In English Law, necessary heirs are not given, and, unless it is a question of the transmission of lands, the testator enjoys full liberty.

b) Causes of exheredation are the most grave offenses of children against parents, for example if a son attempts to kill his parents, acts against them in criminal causes of death, perpetual exile, etc.

The same causes are not everywhere admitted; let each see them in his own Law.²⁸ In French and Italian Law, a son cannot be exheredated except on account of unworthiness declared by the sentence of a judge; by which law jurists advert that paternal authority has been not a little injured. But in German Law, for exheredation it suffices that at the time the testament was made the cause existed and is expressed in the testament.²⁹

c) The legitimate part owed to necessary heirs is that portion of goods which supplies the faculty of living honorably according to one's proper state. The matter is more accurately defined in various Laws.

From French Law:³⁰ the portion reserved to legitimate children, if there is one, is half of the goods; if there are two, two-thirds; if three or more, three-fourths. - To ascendants in defect of descendants, if they are present in each line, half; if in one line only, a fourth. To recognized illegitimate children is owed the part which is allotted to them by law in succession ab intestato.

From Italian Law:³¹ to legitimate descendants is owed half the part, whatever be their number. To illegitimate children is owed the part which the law assigns to them in succession ab intestato. Ascendants, without distinction of lines, have right to the third part. The surviving spouse, if he or she comes with legitimate children, is computed in their number and obtains his or her portion not indeed in ownership, but only in usufruct; if he or she comes with others, he or she obtains in the same mode, that is, in usufruct, a third part.

From Austrian Law:³² half the part is owed to descendants, and a third part to ascendants. Natural children have a definite reservation in the goods of the mother alone. To the surviving spouse, although he or she is not a necessary heir, if poor, suitable support is owed, as long as he or she has not flown to second nuptials.

From German Law:³³ heirs have right to half of the portion assigned to them in legal succession, whatever be their number.

From Spanish Law:³⁴ parents are conceded power to dispose at will concerning a third part of their goods; a third part is owed to descendants; the remaining part is owed to the family, yet in such a way that, with the right of the wife preserved, they can assign it at will to one or more children, the others being set aside. To ascendants, if descendants are lacking, half the part from the goods of children is owed.

1082. III. On the part of form, nothing determined is had by Natural Law; but by Positive Law various formulas are prescribed according to the diversity of testaments.

By reason of form, a testament is: 1. Common or privileged, according as the ordinary form is observed, or by privilege one is dispensed from it. Privileged are testaments of soldiers waging war, of those laboring under plague, of those sailing, etc.³⁵ But when the circumstance which was the cause of the privilege ceases, a certain time is conceded for making a common testament, and the privileged one falls. 2. Solemn or private, according as it is made with determined solemnities, for example with a notary or judge and witnesses, or without them. But a solemn one is public, or mystic or closed.

We shall say nothing about the form of a solemn testament. For in modern Law, commonly, a public minister is required, who intervenes in the name of society; but he will have care for the dispositions of law to be observed.

A private form, and indeed the simplest, is had by a holographic testament: namely that which is written entirely by the hand of the testator, with indication of year, month, day, in Germany also place,³⁶ and with the apposition of the name, in the form of a chirograph. As these three conditions are required for its validity, so they also suffice. - You will note besides: 1. the addition of day, month, and year can be made by arithmetical notes, and placed in any part of the testament; yet it is safer to write these in whole letters at the end of the testament; 2. the inscription of the place where the testament is made is considered by no means necessary, except in Germany; for the testament has force wherever it has been drawn up; 3. any paper, even if not sealed, suffices.

In FRENCH, ITALIAN, SPANISH, GERMAN, and AUSTRIAN Law, a holographic testament is admitted.³⁷ And in AUSTRIAN Law, an allographic testament, written by another, and a nuncupative testament are also admitted; see their form in the Code itself.³⁸ - In ENGLISH Law it is required that the name of the testator be appended to the written testament, or be recognized as duly appended, in the presence of two witnesses, who themselves also must subscribe their names (Crolly, n. 338).

1083. • Questions. The various questions which can be posed regard either the licit and illicit in making testaments, or informal testaments. Hence there are questions of diverse genus.

QUAER. 1. Whether parents sin by injuring the legitimate of children?

Resp. Affirmatively, of itself; and indeed against legal justice alone.

For it belongs to civil society to determine the order of successions, according to the mode which the common good requires. - They do not sin more probably against commutative justice, because they dispose concerning their own thing. For a necessary heir acquires strict right in the goods only after the death of the testator. St. Thomas, 2. 2, q. 57, a. 4; Genicot, I, n. 677.

We said of itself; because: 1. Parents do not seem to sin in any way who, for a just cause, partially injure the legitimate of children in some particular case. For the end of the law ceases when a disposition in itself inofficious, by reason of circumstances, profits the family and is not opposed to the common good: for example, if a father should allot certain remuneratory goods to an upright son, whence less would come to a dissipating son; - or even if he should allot more to one of his children, so that he could more safely continue the paternal commerce, etc.

And this ought to be admitted the more easily, the more modern laws restrict paternal authority. - 2. Parents also do not seem to sin who would spend their goods on pious works, even if they injure the legitimate of children, provided these do not lack honorable support (III, 740, 750). This opinion was already held probably by the ancient Doctors (cf. Genicot, I, n. 677, note; Lehmkuhl, I, n. 1392).

From these things conclude: a) After the fact, children who have received a greater part than owed are not to be troubled when, from the adjuncts of things, it can be conjectured that the parents favored them for a just cause. This has force especially if they are in good faith, and it can deservedly be feared lest they refuse to yield anything.

b) Heirs whose legitimate part has been injured use their own right if before tribunals they attack dispositions harmful to themselves, even if it is a question of dispositions for pious causes. Cf. Genicot, l. c.

c) Parents can secretly make legacies to illegitimate children, even those not legally recognized, although these have no right to them, with the rights of legitimate children nevertheless preserved and scandal excluded (Genicot, I, n. 679).

d) The following question is more difficult: in the case in which a testator, while the first wife was living, entered upon a new civil marriage, can the possible children born from this adulterine concubinage accept the legitimate part assigned to them as also to legitimate children; - or, if nothing was assigned, claim the legitimate part?

Resp. To the first, affirmatively, because according to the path of Positive Law this part has been left to them; nor does Natural Law stand in the way, because the testator, disposing all things in this way, did not injure the strict right of the legitimate children, as was said above.

To the second, negatively, namely if the last will of the deceased is clearly expressed in the testament. Reason: the children born from the first marriage, in the case, immediately after the death of the testator obtained strict ownership of the part assigned to them. Moreover, it is against piety to impugn the expressed will of the father. Civil law indeed receives the second marriage into an equal condition of right with the first, but it cannot in the case favor the illegitimate children, since it is evidently inequitable.

We said: if it is expressed in the testament, etc.; for in doubt concerning the will of the testator, impugnation could licitly be made. Similarly, if the deceased did not make a testament; for then he is considered to have wished that all things be distributed according to the norm of Positive Law. Cf. Genicot, II, 562, IV, against Lehmkuhl (I, n. 1396), who expresses himself rather doubtfully.

QUAER. 2. To what is the testator held toward blood relatives who are not necessary?

Resp. 1. Toward brothers and sisters, and likewise toward the spouse, if he or she is not a necessary heir, the testator is held under grave sin to leave by legacy that which is necessary for relieving their grave want. Yet this obligation presses from charity alone.

2. Toward remote blood relatives, even if they are constituted in grave necessity, and toward brothers, sisters, or spouse who are not situated in grave necessity, the testator is held only under light sin (III, 946; H. Ap., X, 237; l. El. qq. ref., n. 39). Cf. what we said n. 702.

QUAER. 3. Whether a testament or legacy lacking legal forms has force in conscience?

Resp. 1. If it is a question of profane causes, for example of legacies directed to blood relatives or friends, the question must be solved according to the principles explained above (n. 1054).

Hence for practice: a) The heir ab intestato can, with safe conscience, use the benefit of the law by seeking the rescission of an informal testament; and similarly a legatee from an informal testament can licitly claim the goods legated to himself, if the heir does not wish to use his right, or even if he is ignorant of the vices of the testament. b) Before the sentence of a judge, neither is the heir held from justice to pay merely liberal and profane legacies, unless by force or fraud he impeded the validity of the testament, or unless with an oath he promised to pay them; nor is the legatee held to restore goods which he has already accepted or which he already possessed by the right itself. But after the sentence of a judge, they cannot either accept the thing or retain the thing accepted (III, 927).

2. "With respect to pious dispositions, it is certain that, if the will of the testator is established to the heir, whether by words, or by nod, or by writing, the heir is held in conscience either to yield the inheritance to the pious place, or to pay the legacies" (III, 923).

A PIOUS CAUSE is called every work which of itself, from the end of the work, or from the intention of the faithful, is ordered to a supernatural end. That supernatural end can regard not only the worship of God or the glory of the Saints, but also the spiritual or temporal utility of one's neighbor. In this last case nevertheless, there must be present the motive of exercising charity, as befits a Christian, and a merely philanthropic motive does not suffice.

Therefore pious causes are: the sacrifice of Mass, churches, monasteries, confraternities, works of mercy, schools, orphanages, even secularized ones, associations of young men for promoting in them love of the faith and good morals. Cf. Aichner, § 143. - Pious causes are not theaters, societies instituted solely for performing gymnastic exercises; indeed hospitals, orphanages, schools which evidently were founded from a merely philanthropic end are not pious causes, whence also their administration was totally withdrawn from the ministers of the Church.

In doubt concerning the nature of the work, one must attend to the end of the one operating.

Pious causes are subject exclusively to ecclesiastical laws. This is clearly demonstrated by positive monuments; nor is D'Annibale, II, n. 339, to be heard, who almost alone among the moderns teaches the contrary opinion. Cf. Genicot, I, n. 675. - The opinion is confirmed by the Rescript of the Sacred Penitentiary, 19 Jan. 1901 (A. S. S., 34, p. 384), where it is said: "The practice of this Sacred Tribunal is ... that generally pious legacies be held as valid and obligatory in the forum of conscience. Yet heirs are easily admitted to composition with the Church or the pious cause to which the legacy was made." Cf. also the Response of the same Congregation, 23 July 1844 (ap. Gury, Casus, I, n. 861) and 23 June 1884 (ap. Genicot, l. c.).

Yet it must be noted: a) If the will of the testator is not established through his undoubted writing, or through words heard from him, or in another similar way, the heir is not held to believe one witness alone, although most approved, for example the pastor or confessor; because there must be at least two witnesses, from Canon Law itself and by reason of the common good, so that frauds may be avoided (III, 924). - b) If someone, as frequently happens in places where civil law is opposed to Canon Law, is completely ignorant of his obligation, and it is feared that he will not obey the admonition of the confessor, he will have to be left in his good faith, as we have already often warned. c) If the matter is entangled with difficulties, let it be referred to the judgment of the Bishop, to whom, from the Council of Trent (Sess. 22, c. 8, de Ref.), the care of the execution of pious dispositions has been entrusted, and who, for this end, has also been instructed by the Holy See with peculiar faculties.

Corollary. An heir ab intestato who PROMISED the deceased that he would certainly fulfill his last wills is held to this, sometimes from justice, sometimes from fidelity alone.

1. From justice, if the deceased abstained from making a testament on account of this promise. For if, in making the promise, the heir intended not to fulfill it, he committed deceit, and thus unjustly impeded a third party from obtaining a good, and therefore he is held to reparation. But if he promised sincerely, he would commit fault by changing his purpose; because he would infer true damage on him who otherwise would have been instituted legatee (Crolly, II, 394).

2. From fidelity alone, if the deceased did not abstain from making a testament on account of this promise. The last manifestation of will then is a testament lacking legal form, and the things noted in the preceding question have force. But there will be an obligation under grave sin from religion if the promise was firmed by oath (cf. n. 1059, Quaer. 2 and 1062).

1084. I. The execution of a testament is committed of itself to the heir, unless the testator or judge, or the heirs themselves, have constituted an executor. This office belongs to him alone who was designated, and therefore does not pass to his heirs.

But so that this office can be undertaken, it is required that the one undertaking it possess the faculty of obligating himself. Hence minors cannot undertake it, even if the license of the tutor accedes; nor a wife, unless the husband consents, which also has force for a wife legitimately separated from her husband. As concerns religious, they can be executors, provided the consent of the Superior accedes and the rule does not stand in the way (III, 936).

1085. • II. The executor must be held as the mandatary of the deceased, and is held to fulfill gratis the office which he has accepted, otherwise in Germany,⁰² while nevertheless his expenses are compensated.

But he must watch: 1. that judicial seals be appended, if among the heirs there are minors, interdicted persons, or absent persons; - 2. that an inventory be made, with the nearest heir present or duly summoned; - 3. that movable goods be sold, if money is lacking for payment of legacies; - 4. that he urge the execution of the testament, especially with respect to pious legacies, which must be paid immediately or at least within six months if a time was not determined by the testator (III, 941).

1086. III. In the execution of a testament, the expressed will of the deceased, where it is had, must be religiously observed; or the will deservedly presumed, where the expressed will is lacking.

Hence: 1. If the words admit a manifold sense, let the mind of the testator be attended to, according to the nature and object of his last will. 2. If any added condition appears either unintelligible, or impossible, or contrary to good morals or laws, let it be held as not appended. 3. If some disposition of the testator rests on a final motive either false or contrary to laws or good morals, let it be held as null (cf. n. 1057, toward the end).

1087. • Questions. QUAER. 1. Who has power to INTERPRET the will of the testator concerning legacies to be made from a testament?

Resp. Any prudent person can make this interpretation, with due account had of the circumstances.

1. A legacy left to virgins is owed even to a corrupted one, if her corruption is occult. 2. A legacy left to virgins originating from a place is not to be given to virgins born there by chance. 3. Legacies left for dowering determined girls so that they may marry can be given to the same ones already married or about to enter or having entered Religion; otherwise, if they are indeterminate. For in the former case the testator is considered to have wished to benefit such persons; in the latter, to free poor girls from the danger of seduction. 4. Things left to the poor, under which name pious causes also are understood, must be distributed according to the order of charity, as was said n. 484. 5. Things left to poor orphans can be given to wretched persons having useless parents, where orphans properly so called are lacking; otherwise in the concurrence of these (III, 930, 938). 6. Things left to a Religious Order can be given also to a Congregation with simple and perpetual vows.

QUAER. 2. Who can CHANGE legacies?

Resp. Civil authority, for a just cause, can commute a profane legacy into another profane legacy; a fortiori, into a pious one. But only the Supreme Pontiff, when a just cause intervenes, will be able to commute a pious legacy into another pious use.

But Bishops, as Laymann and others probably say, can only then interpret the will of the testator and apply legacies to another pious use, when such a cause supervenes which, if it had been known, certainly would have induced the testator to dispose otherwise concerning his things (III, 931; Lucidi, Visit. sacr. lim., c. VII, a. 4).

QUAER. 3. When does the lapse of a testament OBTAIN?

Resp. A testament becomes lapsed when, although valid from the beginning, it cannot attain execution on account of certain circumstances.⁰³

This happens if the thing legated perishes while the testator is living, or if an heir or legatee is lacking. But a legatee is lacking if he dies before the testator, or before the condition has been fulfilled on which the execution of the testament depends; likewise, if the legatee does not wish or is unable to accept the legacy. If the legacy was left to several conjointly, then when one is lacking, his part accrues to the others.