560. Division. a. Into solemn testament, which is furnished with certain formalities prescribed by law, and non-solemn testament, which lacks these formalities. A non-solemn testament is either ordinary, which without formalities has no force at least in the external forum, or privileged, which has force without solemnities, as is, for example, a testament made by a soldier, or on a sea voyage, or in time of plague.

b. Into written and nuncupative, according as it is drawn up in writing or is made only orally without writing.

c. Into judicial and extrajudicial, according as it is made with the intervention of a judge or notary, or without the intervention of a judge.

d. A holographic testament is admitted both by C.A. and C.G., if it is written wholly by the testator's own hand and signed with his name and surname, with the addition of the year, month, and day.

Note. The formalities which must be observed from law, in order that a testament obtain full value, are prescribed as very many and diverse by diverse codes; wherefore they cannot be enumerated here, but must be learned from the codes themselves.

561. On the value of an informal testament. 1. Testaments which lack legal form are certainly valid if they have been made for pious causes, provided the will of the testator is certainly known (n. 556).

a. Whether a profane legacy which is contained in an informal pious testament is valid is controversial. The reason for denying it is that these testaments are valid only from the will of the supreme pontiff, who does not care for profane causes and therefore does not convalidate profane legacies. The reason for affirming it is this: testaments to pious causes are valid not so much from the will of the pontiff as by natural law, because namely the will of the testator is certainly known; but the will of the testator is certainly known also as to profane legacies; therefore these also are valid by the same natural law and therefore must be committed to execution.¹

b. If the faithful have persuaded themselves that even pious testaments and legacies are of no value where they lack the solemnity of civil law or are rescinded by the judge, the confessor can abstain from admonition, which is foreseen as more likely to harm than to profit, lest they retain in bad faith what they possess in good faith.

2. Informal testaments to profane causes before the sentence of a judge invalidating them are probably valid according to recent laws, unless by them the right of a necessary heir is injured.²

From this doctrine the following things are now inferred:

a. An heir from a testament valid by natural law but destitute of legal form alpha. can enter upon the inheritance; beta. is not bound to warn the heir from intestacy about the defect of the testament; gamma. is not bound to restore the goods of the deceased to the heir from intestacy before the sentence of the judge, even if the heir petitions these goods; yet if he petitions them before a judge, and the defect of the testament is certain, charity demands that the goods be handed over to him, lest he be forced to incur great expenses in vain; delta. the sentence of the judge must be observed in conscience.

b. An heir from intestacy can licitly impugn an informal testament before a judge, and he has the same right not to be impeded by frauds in obtaining a just sentence. Therefore the heir from an informal testament acts unjustly who, for example, in a holographic testament lacking the testator's signature, supplies this with his own hand.³

Note. The Sacred Penitentiary considers informal pious testaments and legacies generally as valid for the forum of conscience; nevertheless the heir is easily admitted to composition with the pious cause in whose favor the legacy or testament had been made.⁴ In this case the supreme pontiff remits the obligation of paying the legacy under this condition, that a small alms be given to the pious cause.

¹ Cf. Lugo, disp. 22, n. 274.

² Cf. Marres, De iustitia^2 (Ruraemond: Romen, 1889), I, n. 367 ss. Delama (n. 95) judges that C.A. does not invalidate testaments destitute of legal forms; authors think the same about most modern codes.

³ Cf. Gury, Compendium th. mor. I, n. 819, 4.

⁴ Sacred Penitentiary, Jan. 10, 1901.

562. Obligations of the testator. 1. Of itself no obligation of making a testament exists, since strict duties can also be satisfied through succession from intestacy. Yet per accidens this obligation can be present, for example, because of restitution owed to someone, or because of lawsuits and dissensions which are deservedly feared and cannot be forestalled in another way.

2. By natural law he must leave to his children, if he has anything, only as much as is needed that they may live according to their state; concerning the rest it is permitted to him to dispose according to his judgment. The portion to be left to children is determined more accurately by positive law.¹

3. To necessary heirs he must leave the legitimate part of the inheritance determined by civil law, unless they are unworthy:² for the civil law which determines for children of the family a legitimate part from paternal goods obliges in conscience and from justice.

a. A father who without just cause deprives a son of the legitimate part sins gravely, and the heirs are bound to return that part. But if without a just cause he favors one son before the rest, to whom he leaves only the legitimate part, he certainly sins, but only lightly; if from a just cause he favors one, he does not sin at all. Now there is a just cause for leaving more to the firstborn son than to the others.

b. Since the law which determines the legitimate part to be allotted to children obliges in conscience, a father of himself sins against justice who either by testament or by donations made without just cause injures the legitimate part of the children. Yet from mere revenues, with the patrimony or capital intact, donations can be made at pleasure: for by these the legitimate portion of the children is not injured, because parents are not bound to increase the patrimony for their children.³

c. He who either by testament or donation accepted something by which the legitimate part of the children is injured is, strictly speaking, bound to restitution, yet not before the sentence of the judge, because the law does not declare dispositions of this kind absolutely void.⁴

4. By natural law he is bound under grave obligation to leave to a wife, brothers, and sisters who are gravely in need as much as suffices for relieving their grave need; to brothers and sisters who are simply poor, and likewise to other relatives gravely in need, he is bound to assist only under light obligation.

Because this obligation indirectly affects the very goods of the deceased, the obligation also passes with the goods to the heirs.⁵

Whether expenses made for studies must be deducted as a part of the inheritance already received. They are not to be deducted, but rather to be considered as gifts conferred by the father, unless the father openly signified that they were not to be disregarded in the division of the inheritance.

a. Expenses made for children which redound to the common good of the family are not to be deducted in the division of the inheritance; but expenses made for studies or for attaining a dignity or for freeing a useful son of the family from military service redound to the good of the family.⁶ Civil law agrees with this doctrine.⁷

b. If expenses made for a son in studies, considering the condition of the parents, are extraordinarily great, in the judgment of some they must be brought into the common inheritance; yet the same authors warn that this is founded not on strict right, but only on natural equity.⁸

5. Blood-relatives who are neither necessary heirs nor poor can licitly be passed over in a testament; hence, with blood-relatives passed over, remaining goods can be given to pious causes without sin.

¹ C.A. Section 765 s.; C.G. Section 1922 ss.

² C.A. Section 540 ss. and C.G. Section 2333 ss. determine who can be deprived of inheritance because of unworthiness. Nevertheless there remains in parents an obligation of piety of providing even for unworthy children the necessities of life, if they cannot provide for themselves.

³ Cf. Gury, Compendium th. mor. I, n. 827 s.

⁴ Lugo, disp. 23, n. 147. Cf. St. Alphonsus, l. 3, n. 740.

⁵ Lugo, disp. 23, n. 100.

⁶ St. Alphonsus, l. 3, n. 955; Lehmkuhl I, n. 1169.

⁷ C.A. Sections 788-792.

⁸ Cf. Lehmkuhl I, n. 1169.

563. On revocation of a testament. Since a testament by its nature can always be revoked or changed as long as the testator lives, it is asked what is effected by a promise not to revoke it, especially where it has been confirmed by oath.

1. A promise not to revoke a testament is null by civil law: therefore he who made this promise does not lose the right of changing the testament, even if the promisee on his part had made another promise, even if, for example, when the husband promised, the spouse in turn had promised that she would not change her testament: for private persons cannot despoil themselves of a right which is conceded to them by a law made for the common good.

2. If an oath has been added to the promise, one must distinguish whether there is question of a testament to profane causes or of a testament to pious causes.

a. If there is question of a testament to profane causes, the oath is null (n. 540), and therefore neither confirms the promise nor obliges one to observe it from religion.

b. If there is question of a testament to pious causes, the oath is valid and induces an obligation from religion of observing the promise and not revoking the testament.¹

Question Third. On Bilateral Contracts of Certain Event

Bilateral contracts of certain event are: deposit, commodatum, mandate, mutuum, purchase-sale, lease-hire, partnership, exchange.

¹ Cf. Ballerini-Palmieri III, n. 967 ss.