Question Four: On Principles Common to Donation and Testament

496. The faculty of donating is limited:

1. by incapacity for donating or receiving in certain persons, whether absolute or relative;

2. by certain determinate modes of donating prohibited by law;

3. by legal reservation with respect to certain goods.

497. Incapacity for donating (onbevoegdheid). - In itself, all who are fit for contracting are capable of donating (n. 467); but by civil law the faculty of donating is restricted in various ways on account of the public good, namely in minors, wives, the insane or interdicted, ceders of goods, and those condemned to penalties.

1. Minors, even emancipated minors, cannot donate except in cases determined by law.

By French and Belgian law, a) after the sixteenth year of age, they can donate by testament, without the assistance of a tutor, one half of the goods which adults could give; but if they dispose of more, the testament is reducible; b) those contracting marriage, in the matrimonial contract, can give whatever adults are able to give; c) they can make small manual donations (a. 903-904 and 1095).

By Italian law, one who has not yet completed 18 years cannot make a testament; once these have been completed, he can do so like all others (a. 762-763); by Austrian law, the impubes cannot make a testament; after puberty and before 18 completed years, only orally and before a judge (a. 569); - by Spanish law, minors can make a testament after the completed 14th year (a. 663); - by German law, they can make a testament only after 16 years, and only orally before a notary (a. 2229); - by English law, minors are prohibited from making a testament.

2. Wives cannot donate inter vivos without the consent of the husband or the authority of a judge, except manual donations; but by testament they can dispose of their own goods; for a testament has force only for the time when the authority of the husband has already ceased (a. 905).

Thus, in conformity with the nature of things, in French, Belgian, Dutch, Spanish, Lusitanian, Romanian law, etc. - But in Austrian, Swiss, Italian, German, English law, they now have full or nearly full power, but with respect to those proper goods concerning which, according to the regime of marriage, they can dispose.

3. The insane and interdicted can in no way donate.

Indeed, after interdiction, even previous acts done while the cause of interdiction already existed notoriously can be annulled (a. 502-503). But those who have been placed under judicial counsel cannot alienate goods inter vivos without the assistance of this counsel, but they are able to make a testament (a. 513).

4. Ceders of goods cannot donate; indeed, it is rather often established in law that donations made within a few days before cession are invalid.

Thus by French law it is established that they cannot donate within the ten days which precede the judicial declaration of their state; and donations made before that can be invalidated, if it is proved that they were made in fraud of creditors (a. 1167; Belgian Commercial Code, a. 445 sq.).

5. Those condemned to perpetual penalties or legally interdicted cannot donate, unless the civil authority dispenses from this inability.

In Belgium, nevertheless, they can make a testament (Penal Code, a. 22).

Concerning the capacity of religious, this is stated in Canon Law, where religious are treated.

498. Incapacity for receiving is absolute or relative, according as it is toward every person, or toward a determined person.

A. Absolutely incapable are:

1. Infants not yet conceived at the time when the donation is made or when the testator dies; however, he is considered to have been conceived at the opportune time who is born within 300 days after the death of the testator (a. 312 and 315), provided, however, that he is born living and viable (a. 906).

2. Minors can receive nothing by themselves, but parents or tutors can receive in their name; emancipated minors cannot receive without the assistance of a curator.

3. Wives cannot accept without the consent of the husband or the authority of a judge; - unless in regions in which they have now obtained power with respect to their own goods concerning which, according to the regime of marriage, they can dispose, as was said in the preceding number.

4. Interdicted persons cannot receive without the consent of the curator and of the family council.

5. Those condemned to perpetual penalties.

In Belgium, nevertheless, a curator can receive for them, but nothing can be remitted to them (Penal Code, a. 23-24).

6. Societies which are not legally recognized, at least before civil law, cannot receive; the individual members, however, can, but in the same way as other citizens.

7. Legally recognized institutes cannot receive without the approval of the civil authority; for example, Seminaries, congregations, hospices, Universities, etc.

Thus in Belgium there is required the approval of the permanent provincial deputation for small sums which do not exceed 5,000 francs; for larger sums, the approval of the government (a. 910; municipal law, a. 76).

• Yet the prohibition regards not so much ability as the form of donation; whence it does not pertain to manual donations, which are not subjected to the forms prescribed for donation.

Concerning religious, this is stated in Canon Law.

B. Relatively incapable, at least in many regions, are:

1. A tutor with respect to a minor, until the latter has attained majority and the accounts of tutelage have been rendered to him (a. 907).

This is so, evidently, lest the tutor abuse his authority to the detriment of the ward. If, however, the tutor is one of the ascendants of the ward, by French law he can receive something from him.

2. Spouses with respect to each other (a. 1096-1099).

The question is evidently only of donations in legal form.

3. Physicians, surgeons, pharmacists, and ministers of worship (of any, even non-Catholic, worship), who have furnished to a sick person, in his last illness, the service of their art or ministry, can receive nothing from him by gratuitous title through a donation, even testamentary, made during that illness, unless they are direct heirs, or, these failing, collateral heirs at least in the fourth degree (a. 909).

The reason is that the aforesaid persons, in the given circumstances, can exercise too much power over the mind of the sick person. Remunerative donations are excepted, made by particular title, provided they are proportioned to the means of the donor and to the services rendered; likewise donations made to a priest that he may celebrate Masses.

But the following are not incapable: a physician who is called only for the sake of consultation, a pharmacist who sold medicines without furnishing his own service; nor a Catholic minister who was not confessor, but only supplied extreme unction or holy communion, or visited the sick man as a friend.

4. Illegitimate children, even legally recognized, receive only a smaller part of the inheritance than legitimate children (a. 908 and 757); but if they have not been legally recognized, they are held as strangers. - Incestuous and adulterine children, however, when they are legally shown as such, which rarely occurs, can receive only an alimentary pension (a. 762).

499. Prohibited modes of donating are interposition, substitution, and an illicit condition.

I. Interposition (schijnoverdracht, tusschenerfstelling) is that prohibited interposition by which a donation is made to a capable person, with the obligation of handing over the thing to a person who is legally incapable of receiving, so that the donation is made in fraud of the law.

Interposition must generally be proved by him who impugns the validity of the donation, by showing that at least a tacit pact had been entered into, by which the donee obligated himself to hand over the thing to the incapable person, or that the donor ordered this: for it is not enough that he manifested a mere desire, because a desire does not induce an obligation. Yet the law sometimes presumes interposition in certain persons: thus the father and mother, descendants, and spouse of an incapable person are presumed to be interposed (a. 911); which presumption is of law and from law, so that proof to the contrary is not admitted.

II. Substitution (onderschuiving, ondererfstelling) is a disposition by which the donor designates a double person: one who is to receive the gifts or legacies immediately, another who is to receive them in default of the former or after him. Now substitution is twofold:

1. Improperly so called, direct, or vulgar substitution (gewone, rechtstreeksche, aangeduide) designates the person who will obtain the gift or legacy if the donee or legatee does not wish or is not able to obtain it; for example, I give a house to Peter, but in his default to Paul. This is nothing but a conditioned donation, which is valid (a. 898).

2. Substitution properly so called, indirect, or fideicommissary (vertrouwde), hands over the dominion of a thing (not the usufruct) to another, with the burden of preserving the donated thing for a certain time or until death, and afterward of transmitting it gratuitously to a third party; hence the other is called the burdened party or fiduciary, but the third is called the fideicommissary or the one called. This, in present-day law, out of hostility to mortmain, or also to the stability of goods among nobles, is wont to be prohibited as harmful to the equality of citizens, to the free transfer of goods, and to agriculture, and indeed generally in such a way that not only the substitution, but the donation itself, is annulled; and therefore the fiduciary can neither retain the donated goods for himself nor hand them over to another. This law does not seem certainly unjust. Thus in French and Belgian law (a. 896 and 899), and Dutch law (a. 926). - By Italian (a. 899-900) and Lusitanian law (a. 1869), the principal disposition remains, but the substitution is annulled.

Yet a twofold substitution is permitted by civil law, even French law, lest prodigals dissipate goods bequeathed to them: a) father and mother can give goods of which they have free disposition to one or several of their children with the burden of rendering them to all children born or to be born from them, without any distinction, and in the first degree only; b) those who have no descendants can leave goods of which they can freely dispose to brothers or sisters with the burden of rendering them to all children born or to be born from them, and in the first degree only (a. 1048-1051).

III. An impossible or illicit condition annexed to a donation or testament, although it is illicitly added, nevertheless does not invalidate it unless, by a predominant will, the donor wishes the donation to depend on the condition. Whence it generally does not render the act invalid; but (unlike an onerous contract) the condition is held as not written, so that the donee is not bound to fulfill it (a. 900). Nevertheless the donation would be invalid if the illicit condition were the true and sole cause of the contract, because then consent would be bound to such a condition and would truly depend upon it (a. 1131 and 1172).

Thus French and Belgian law. By Italian law, those conditions in a testament or legacy are held as not written (a. 849), but they invalidate a donation (a. 1065); by Swiss law, illicit conditions invalidate a legacy, the others are held as not written (a. 482); by Austrian law, a legacy under a suspensive impossible or illicit condition is null, but if it is a resolutory condition, it is held as not written (a. 698); by German law, an impossible mode invalidates a legacy only when it is clear that the liberality would not have existed without such a burden (a. 2195).

500. On the force of prohibitions of civil law, the same thing must be said as we said about the force of informal testaments (n. 493). - When there is question of pious causes, Canon Law has force, in which substitution is not prohibited; for example, Peter bequeaths his house to John under the condition that John leave it after death to the parish church.

What therefore if, at the petition of the heir, that donation is annulled by a civil judge and the house is handed over to the heir? R.: The heir will not be bound to leave the house to John, because under this respect there is question of a profane cause; but he must take care that the parish church receive that which was established by the testament of Peter, because under this respect it is a pious cause. Therefore the heir can, while John is living, retain the house, provided that he takes care that after his own death the house be handed over to the pious cause, or, if this is impossible or dangerous, that an equivalent thing be handed over.

501. Legal reservation of hereditary goods (wettig voorbehoud) is that part which devolves to the natural heirs by the law itself according to the proportion defined by law. It is opposed to the disposable part or quota (beschikbaar deel), concerning which the owner can dispose at will, while concerning the reserved or legitimate part (voorbehouden of onbeschikbaar deel) he cannot dispose gratuitously, but only by onerous title.

In England, with the exception of the transmission of certain estates, and in the United States of America, generally full liberty of making a testament is in force; but in many regions of Europe it is limited: thus in Italy (a. 805 sq.) and Austria (a. 765 sq.), one half of the inheritance is owed to descendants, one third to ascendants in default of descendants; in Germany (a. 2303), one half of the goods is disposable and the other is reserved to children, parents, and spouse; in Spain, one third part of the goods is disposable, one third part is to be distributed equally among the children, but the last may be freely donated to any of the children, though not to strangers (a. 808 sq.).

But by French-Belgian law (a. 913-914), and Dutch law (a. 960 sq.):

1. The disposable part depends on the number of children: if there is one child, the parents can freely dispose of one half of the goods; if two children survive, they can dispose of one third part; if three or more, the fourth part is disposable. Under the name of children there come also legitimated and adopted children and grandchildren (kleinkinderen) and their descendants, yet in the sense that all those born of one child are counted for only one child, whom they represent.

If natural children legally recognized survive, but not legitimated, a quota part is reserved to them, but smaller than if they were legitimate.

According to Belgian law, they are only heirs of the father and mother (a. 756): to them is given 1/3 of the portion which legitimate children would have obtained, if other legitimate children are present; 1/2 if the deceased has brothers, sisters, or ascendants; 3/4 if he has at least other heirs (a. 757). They do not succeed to the entire inheritance unless no other heir survives (a. 758). - In France, from the law of March 25, 1896, they receive 1/2 of the portion of a legitimate child if others are legitimate; 3/4 if the deceased has brothers, sisters, or ascendants; otherwise the whole inheritance.

2. In default of descendants, if ascendants survive in both lines, paternal and maternal, one half of the goods is reserved to them; if in one line, one fourth part is reserved (a. 915).

3. There is no reservation in favor of collaterals;¹ in practice, however, if poor collaterals complain that several legacies have been made to their excessive detriment, the public authority is wont to reduce these legacies; and rightly: for piety demands that something be left to relatives in necessity, especially brothers and sisters.

¹ It is proper to Swiss law that brothers and sisters are necessary heirs (a. 470-471).

4. To the surviving spouse there is not conceded reservation properly so called, but the right to the usufruct of a certain part of the goods (a. 767); this varies according to different laws.

From the Belgian law of November 20, 1896, a spouse not separated from bed has the right to the usufruct either of the portion of a legitimate child (which does not exceed the fourth part of the goods), if the deceased has children from another marriage; or of the totality, if the deceased does not have heirs except collaterals other than brothers or sisters or their descendants; or of one half of the goods, in other cases. In France, from the law of March 9, 1896, the usufruct of 1/4 part of the goods is attributed to the spouse if legitimate children are present; of 1/2 part if there are other heirs.

It should be noted that donations inter vivos or testamentary donations exceeding the disposable part are not absolutely void, but can be reduced (a. 920) if the reserved heirs or their successors or those having cause from them petition this (a. 921). In this case, first the testamentary dispositions are reduced according to the proportional part of the value; then, if the legacies do not suffice for paying the reserved part, donations are reduced, not indeed according to proportional part, but in chronological order, beginning from the most recent and going back as far as the first (a. 923 sq.).

502. What force does legal reservation have for the forum of conscience? - Resp. Civil law proceeds further than natural law; and since it establishes a matter not sufficiently determined by natural law alone, it in itself obligates in conscience. But it can be asked what kind and what quantity of obligation of conscience it produces. Therefore those who by donations or testaments injure the legal portion of necessary heirs:

1. Do not seem to sin against commutative justice, because the testator disposes of his own thing and the heir only after the death of the testator has a strict right in that thing. The case is excepted in which someone would use unjust and fraudulent means, for example, a fictitious sale, to prevent the necessary heir from prosecuting his right.

2. Generally they sin against legal justice or obedience, since they violate a just law and one almost necessary for the common good, for example, lest legitimate children born of first nuptials afterward, on account of the excessive love of the father toward a second wife and her children, be excluded from the whole inheritance. This sin in itself is light; by accident it can be grave, if the necessary heir were thereby cast into at least relative poverty.

3. Sometimes such a testator does not sin in any way, especially a) if he favors one child for a just cause, namely to procure a greater good or to avoid a greater evil; for example, if only by violating the legal part of the children someone could fulfill an office of piety, charity, or justice, such as providing for the education of an illegitimate child or sustaining parents in grave necessity: for then the natural law prevails. Likewise b) if observance of the law which was enacted for the good of the family would turn to its detriment: for then the law ceases contrariwise, because it becomes harmful; as if, because legal equality were preserved, none of the children could any longer carry on the paternal business or agriculture; or if one son is foreseen shortly to dissipate all things while the brother, to whom more is attributed than the law permits, is deservedly hoped also to provide for the prodigal brother and his children. This can easily occur in our regions, in which the liberty belonging to a prudent father of a family is narrowly restricted.

503. Questions. - I. Whether it is licit to injure the legitimate portions of necessary heirs by donations or legacies for pious causes, for example, foundations?

Resp. This is probably licit, or at least is not unjust, provided the necessary heirs obtain that which belongs to them by the law of nature for honorable sustenance and state. Nevertheless heirs whose legitimate part was injured do not seem to sin if with just means they make a claim before a tribunal, because civil law has the right of determining the legitimate part. For in the case it does not directly declare null a legacy made to the Church (which it would not be able to do), but directly establishes the legitimate portion of the children, from which then indirectly follows the nullity of the other legacy.² It would have to be said otherwise concerning pious donations and legacies made outside the legitimate part, because civil law does not have the right to impede directly or generally all pious donations, just as neither does it have the right to impede the Church's right of possessing goods.

² It should be noted that already formerly under Roman law a probable opinion conceded this; which holds a fortiori now, because the disposable part is much smaller. Besides, many, even older theologians, teach that inofficious donations can probably be reduced to the disposable part.

II. What if someone, from hatred or inordinate affection, wished to leave only the legitimate part to his children; or if without just cause he favors one child from the disposable part?

R. He is bound under grave obligation to put aside hatred or inordinate affection, and he is to be exhorted to leave something more to his children. Hatred and gravely inordinate affection of partiality being set aside, if he favors one child before the others without just cause, such as can be if he merits more by virtue or service, if he has done more, if he seems to be in greater need, for example for sustenance or for study, he does not sin gravely, unless perhaps by accident if for this reason grave hatreds and dissensions arise, and these are not rather to be attributed to the malice and avarice of the heirs than to the father who uses his own right. This is especially true if the father acquired the goods by his own labors; but if he had not acquired them by his own labor, it is better that they be divided equally among all the children, unless there are special circumstances concerning which it was said above. Cf. also n. 502, 3).

III. Whether a testator is bound to provide also for certain heirs who are not necessary?

R. 1. There is a grave obligation that there be left to brothers and sisters that which suffices to relieve their grave want; civil law also recognizes this to some extent. Thus Civil Code, a. 767, modified by Belgian law.

2. There is a light obligation that provision be made for the necessity of other relatives gravely in need.

All these are obligations of piety, obligating under grave or under light obligation according to the degree of necessity and the degree of nearness of kinship; these obligations indirectly affect the goods of the deceased, and therefore pass with them to the heirs.