Section 2. On Last Wills Themselves

556. On last wills themselves. By the name of last will is understood that disposition by which someone establishes what he wishes to be done concerning his goods after his death.

1. All dispositions which are called last wills have this as proper to them, that he who disposes of his goods retains full ownership of them until death; wherefore these dispositions are by their nature revocable and have no force unless the will of the one disposing remains unchanged, so that in reality it is the last will.

2. The dispositions of last will have the force of transferring ownership not by the mediation of positive law, but by natural law itself.

Some thought that dispositions of last will have force for transferring ownership by positive law alone: for in order that they be able to transfer ownership by natural law, the mutual consent of the testator and heir is required; but that mutual consent cannot be had, since the testator's donation can be accepted only after his death. But from these things it indeed follows that ownership in this case is not transferred after the mode of a properly so-called contract, yet it is not proved that it is not transferred by natural law. And indeed the will of the testator disposes by natural law that the inheritance can be occupied or accepted by the heir alone, with every other excluded; this will, when the testator has died, perseveres morally, as it were inhering in the inheritance, so that the heir by natural law can occupy or accept the thing deferred to him. Therefore ownership in the inheritance is acquired by the disposition of the testator and by the occupation or acceptance of the heir.¹

3. In order that a disposition of last will be valid by natural law, nothing else is required except that the last will of the deceased be certainly known; but by positive law certain formalities are required, and if these are lacking, they have no force either simply or at least after the sentence of the judge.

The will of the testator can be certainly known either by writing, by which the last will of the testator is indubitably expressed, or by the assertion of witnesses.

4. Dispositions of last will made in favor of a pious cause are governed not by civil laws but by ecclesiastical laws: for the Church has the power of making laws of this kind and in fact has made them; now the Church holds dispositions of last wills which regard pious causes as valid, provided they are certainly known.²

In order that the last will of the testator be certainly known from testimony, the assertion of one witness is not sufficient, even if he is most worthy of trust, as a parish priest or confessor, even if confirmed by oath, unless to the testimony are added other signs of grave moment which confirm the assertion. For by canon law two legitimate witnesses are required for producing full proof.³

Whether the supreme pontiff or a bishop can commute the last wills of testators.

The last wills of the faithful regarding pious causes, as accepted by God, are held as holy and are equated with vows and oaths. Hence those who lack ecclesiastical jurisdiction in the external forum have no power over them. Therefore a parish priest, indeed even a bishop, cannot convert a legacy or testament constituted for a pious cause to another use, even a better one.

1. The supreme pontiff certainly can commute the last dispositions of testators to another use, since the administration of pious causes has been committed to him,⁴ yet not without a reasonable cause, because he is not their owner but administrator. By a like reason even the supreme prince can commute profane wills of testators from a just cause.

2. A bishop certainly cannot do this from any just and reasonable cause, as the supreme pontiff can, since exact execution of last wills is rather enjoined on him by law;⁵ but from a just and necessary cause, namely when the disposition of the deceased morally cannot be fulfilled, he can convert the last wills of the deceased, according to some indeed as a delegate of the apostolic see, as the Council of Trent disposes,⁶ but according to others only by epikeia and with the consent of the heir or of the legatee church.

Therefore this power belongs to a bishop in the following cases: a. if the money bequeathed for some use is not sufficient; b. if the thing bequeathed cannot serve for the determined use; c. if a legacy for a determined use is not necessary, as if it was left for making sacred vessels, which the church does not need, but it needs vestments; d. if ancient legacies, because the circumstances of times have changed, have either a useless use or one little conducive to the worship of God.

¹ Cf. Th. Meyer, l.c., n. 209.

² C. Relatum 11, De testamentis (III, 26); Sacred Penitentiary, June 23, 1844. Cf. Ballerini-Palmieri III, n. 983 ss.

³ C. Relatum 11, De testamentis (III, 26). Cf. Genicot I, n. 675.

⁴ C. Quia contingit 2, De relig. dom. (III, 11), Clem.

⁵ Council of Trent, sess. 22, c. 8, De reform.

⁶ Sess. 22, c. 6, De reform.

557. Division of last wills. Last wills are divided: a. into testaments; b. into codicils; c. into legacies; d. into fideicommissa; e. into donations because of death.

1. Testament is called a last will by which someone disposes of his goods, whether by instituting an heir or without the institution of an heir.

In Roman and Austrian law only that last will by which an heir is instituted is called a testament; but by recent law any disposition which someone makes concerning his goods for the time following his death is called a testament.

2. Codicil is called a disposition of last will by which something concerning a testament is explained or changed, by adding or subtracting.

Where the institution of an heir belongs to the nature of a testament, as in Roman law, a last will by which someone disposes of his goods without the institution of an heir is called a principal codicil, in order that it may be distinguished from an accessory codicil.

558. 3. Legacy is called a disposition of last will by which a determinate thing is left to someone directly, for example, I bequeath to Titius my farm. Directly: for if something is left to be attributed to someone indirectly, that is, through the heir, it is called a fideicommissum.

a. A legacy must be made concerning a determinate thing, such as a house, farm, sum of money. b. The legatee, as soon as the heir has entered upon the inheritance, acquires ownership of the legacy; yet he cannot occupy it by his own authority, but must wait until it is handed over to him by the heir. c. A profane legacy, according to the opinion of some, follows the nature and conditions of the testament; if therefore the testament is void because of defect of some solemnity, the legacy also is void; but according to the opinion of others it is equated with a pious legacy. A pious legacy always obliges in conscience, provided the will of the legator is certainly known (556, 3).

4. Fideicommissum is a last will by which the heir is ordered to leave something to another, whether this is the whole inheritance or part of it or some particular thing, for example, I will that Gaius the heir give this farm of mine to Titius.

From this fideicommissum must be distinguished the fideicommissum of a family, or that disposition by which an inheritance is declared to be an inalienable good of the family, which must be transmitted within the same family, either to the firstborn of the older line, or to the nearer blood-relative, or to the older by birth. This fideicommissum cannot be constituted without the consent of the legislator and receives binding force in conscience through positive law.¹

¹ C.A. establishes laws concerning this fideicommissum in Sections 618-646; C.G., Einfuhrungsgesetz 59.

559. 5. Donation because of death is called a disposition of last will by which something is given to another in such a way that the donation obtains its effect after the death of the giver.

a. In order that a donation because of death be valid by natural law, nothing else is required except that alpha. there be a true donation, not only a promise of donation; beta. that acceptance of the donee be present: for donation because of death differs from other last wills in this, that while the giver is living it must be accepted by the donee and gives him a right to the thing, or rather in the thing; but in this it agrees with them, that only when the giver has died does it receive force, and therefore it can still always be revoked;¹ gamma. that it be certain that the donation has not been revoked.

b. He to whom a donation because of death of a movable thing has been made can, when the giver has died, secretly take it for himself, provided it is certainly known that there was a true donation: for this donation differs from a legacy in this, that the thing given is left not as to be paid by the heir, but as to be accepted by the donee as his own; since, when the giver has died, the donee has a right in the thing concerning the gift left to him.

c. If the donee dies before the giver, the donation is considered revoked, so that it does not pass to his heirs, because the giver is considered to have intended only the donee.

Note. Where the civil code does not admit donations because of death: a. a donation which is made to pious causes is valid; b. a donation which is made to profane causes is probably valid by natural law before the sentence of the judge, but by positive law can be made void through the sentence of the judge. Hence before the sentence of the judge the donee can accept the thing given and retain it once accepted; but the heir is not bound to hand the thing over to the donee.²

¹ Cf. nevertheless C.A. Section 956; C.G. Section 2301.

² Cf. Gury, Compendium th. mor. I, n. 835; Casus consc. I, n. 811 ss.