3. On Donation by Testament

273. Preliminary notions. Although hereditary succession, strictly speaking, is not a contract, because the consent of the one conferring and of the one accepting the inheritance does not exist at the same time, nevertheless it is rightly reduced to donation.³² For through it, and notably through a testament, ownership of an inheritance is transferred gratuitously to others. For the sake of clarity, certain preliminary notions must be explained:

Hereditary succession is called the right of succeeding to the goods and rights of a deceased person. It is twofold: the one legal or intestate, by which the right of succeeding arises from the disposition of law even without the expressed will of the deceased; the other testamentary, by which that right of succeeding arises from the last will expressly manifested by the deceased himself.

An inheritance³³ is the universality of goods pertaining to the deceased.

An heir is one who receives the goods of the deceased; and if he receives all his goods, he is called the universal heir (or heir to the whole estate); but if he receives only a part, he is an heir in part. Furthermore, there are distinguished: 1. an intestate heir, who succeeds to the goods of one who died without a testament; and a testamentary heir, who receives the goods of the deceased by force of a testament; 2. a necessary heir, who by force of positive law cannot be omitted from hereditary succession except in cases determined by law, and an arbitrary heir, who is freely called to the inheritance by the testator. In modern codes there are still other divisions of heirs,³⁴ but knowledge of those divisions is not so necessary for the confessor.

The legitimate part or portion³⁵ is that part of the inheritance which must be left to the necessary heirs³⁶ by statute of positive law.

The principal modes of acquiring an inheritance are two, namely, by testament, under which an inheritance pact can be included, by which someone declares his last will concerning his goods; and by intestate succession, if someone has died without a testament. We shall treat the latter at n. 280ff.

³² Thus also Noldin, De praeceptis, before n. 546; Tanquerey, De contractibus c. 2.

³³ In German, Erbschaft.

³⁴ E.g., prior heir, subsequent heir, substitute heir, forced heir (Vorerbe, Nacherbe, Ersatzerbe, Noterbe), etc.

³⁵ In German, Pflichtteil.

³⁶ In German, Noterben.

274. The right of making a testament is indeed founded in natural law, but it is determined by positive law.³⁷

Theologians and jurists dispute greatly concerning the origin of this right. Some, and indeed nearly all Catholics, say that the right of making a testament arises from natural law itself; others teach that the faculty of making a testament arises from civil law alone. Thus Pufendorf,³⁸ Schmalzgrueber,³⁹ Zallinger,⁴⁰ and, in addition, those who deny the existence of natural law. Finally, others teach that the faculty of making a testament is indeed founded in natural law, but receives its full force and determination from positive law. Hence it follows that positive law can indeed restrict the faculty of making a testament, but cannot abolish it entirely. This controversy pertains more to Moral Philosophy than to Practical Moral Theology. Hence there is no leisure to discuss it at greater length.⁴¹ Let it be said briefly: the right of making a testament seems to flow from natural law in almost the same manner as private ownership, of which it is a necessary complement. For private ownership includes the perfect faculty of disposing of one's own goods, and indeed not only concerning what ought to be done with them here and now, but also after the testator's death. Nevertheless, positive law can for reasonable causes limit this faculty of making a testament more or less, as in fact has been done in all civilized regions. Indeed, this limitation is excessive in some codes. On the contrary, elsewhere there is excessive freedom of making a testament, and great inconveniences are wont to arise from it. For it is unreasonable that, e.g., a father can without an urgent reason disinherit one or more children and transmit his entire fortune to one child.

³⁷ Cf. Billuart, De contract. diss. 2, a. 3, § 4, and Tanquerey, De iust. n. 688ff.

³⁸ De iure nat. et gent. l. 4, c. 3.

³⁹ On book 3 of the Decretals, tit. 26, n. 38ff.

⁴⁰ Inst. iur. nat. l. 1, q. 720.

⁴¹ Cf. Cathrein, Moralphil. II, 339ff.

275. A determined mode of making a testament is not required by natural law; positive law, however, has wisely established norms for making a testament legitimately. For thus many frauds are avoided which otherwise could easily occur. The principal modes are the testament, codicil, and legacy.

A testament is, as it were, an attestation of the mind, and according to ancient Roman law is called that last will by which an heir is instituted; according to several modern laws, however, a testament is called generally the total final disposition of one's own goods after the testator's death.⁴²

A codicil is an explanatory or modifying addition appended to a testament already made. A codicil, however, does not have the same meaning in the different modern laws.

A legacy is a determinate thing which, according to the will of the testator, must be delivered from the so-called mass of the inheritance to some determinate person. It is called a legacy strictly so called if the testator directly bequeaths something to someone; e.g., I bequeath my books to Titius. It is called a fideicommissum,⁴³ however, if the testator indirectly, i.e., through another, bequeaths something; e.g., I give my fortune to Peter with the burden of paying 5,000 francs after three years to my nephew Caius.

⁴² Cf. Institutes 2, 10. Ulpian says: "A testament is the lawful attestation of our mind, solemnly made for this purpose, that it may have force after our death." Fragments, tit. 20, 1.

⁴³ From this fideicommissum there must be distinguished the so-called family fideicommissum, which cannot be constituted without the consent of the government and which consists in a determinate part of a fortune that cannot be alienated from the family.

276. Form of a testament. In different regions different norms have been established for the making of testaments. The individual codes must be consulted. Since difficult cases concerning the validity and mode of testaments occur not rarely, the confessor should endeavor to learn at least the principal forms of testaments in force in his country. Only a few divisions or forms of testament are given here:

1. An ordinary and extraordinary testament. The first is that which is legally completed in ordinary circumstances. The latter is that which by privilege, and therefore is also called a privileged testament, is recognized as legal in extraordinary circumstances, e.g., a testament made by soldiers on a military expedition, or during an epidemic, or if a notary or judge cannot be summoned, etc.

2. A written, nuncupative, and holographic testament. A written testament is sometimes understood to be that which is written by a notary or judge according to the legal forms and is signed by the testator. A nuncupative testament is that which is established orally by the testator before witnesses.⁴⁴ A holographic testament is that which has been written entirely in the testator's own hand, signed with his name and surname, and marked with the addition of the place, year, month, and day. Several modern laws admit a holographic testament, e.g., German, French, Austrian, Swiss, Italian, Spanish law, etc.

3. A testament is called legal if all the norms required for the legal validity of the testament have been observed; otherwise it is an illegal or informal testament and is declared invalid by the civil judge.

⁴⁴ Cf. German Civil Code § 2250; French Civil Code art. 981; Swiss Civil Code art. 506.

277. Value of an informal testament. The most grave question concerning the value of an informal testament is answered briefly as follows:

1. If the mind of the testator is certain, every informal testament before the sentence of a judge can be regarded as valid. Thus the truer and more common opinion. The reason is that the faculty of making a testament arises primarily from natural law, while civil laws seem to decree the rescindability rather than the very nullity of such testaments. But if the civil law certainly and clearly determines that informal testaments are not only rescindable but also wholly null from the beginning, then assuredly this has force also for the forum of conscience. Billuart⁴⁵ writes excellently: "Laws invalidating less solemn [i.e., informal] testaments are not received by common usage to the extent that one who possesses through such a testament is despoiled before the sentence of a judge.... For whom will you find who voluntarily gives up that which he possesses by title of a less solemn testament or other contract, without force or fraud, while it is claimed by no one?" Hence one who received something from an informal testament can retain it and is not bound to warn the intestate heir concerning the defect of the testament. Nevertheless, it is not lawful to use any fraud to deceive the judge or the intestate heir, e.g., by supplying a signature or designation of the day or year which was omitted through forgetfulness. For by such fraud others are unjustly prevented from exercising their right of seeking rescission of the testament. But if someone by such fraud really prevents another from being able to use his right, he is bound to restitution, according to the more common and more probable opinion.⁴⁶

2. After the sentence of the judge, testaments of this kind are invalid even in conscience; indeed, anyone can licitly seek their rescission, provided, however, that there is question of testaments for profane causes. The reason is that these invalidating laws are founded on the presumption of common danger. But laws founded on the presumption of common danger bind in conscience. Hence Billuart⁴⁷ rightly adds: "Who is there who restores that which he obtained by the sentence of a judge against the disposition of a less solemn testament or other contract?"

3. If there is question of a testament for pious causes, i.e., for the good of the Church or the salvation of souls, it is disputed whether it is valid in conscience even if the sentence of a civil judge has invalidated it because of a defect. The more common opinion affirms this, both a) because testaments for pious causes are considered as sacred things which are not subject to civil laws, and b) because the Church has the right to acquire temporal goods independently of the civil government and civil laws. This opinion is confirmed from c. 11, X 3, 26 and from the response of the Sacred Penitentiary of January 10, 1901, declaring: "The practice of this Sacred Tribunal is that, generally, pious legacies are regarded as valid and obligatory in the forum of conscience. Heirs, however, are readily admitted to a composition with the Church or the pious cause to which the legacy was made."^47a A probable opinion denies this, and it is held especially by Cardinal D'Annibale,⁴⁸ Daelman,⁴⁹ Haine,⁵⁰ and Retzbach.^50a In practice Archbishop Kenrick of Baltimore⁵¹ prudently says: "For the rest, I would scarcely dare deny the sacraments to one unwilling to pay those things which lack the protection of civil law." This is approved by Tanquerey,⁵² and seems to conform to the Code of Canon Law, which establishes in canon 1513, § 2: "In last wills for the good of the Church, the solemnities of civil law are to be observed if this can be done; if they have been omitted, the heirs are to be admonished to fulfill the will of the testator."⁵³ Therefore, at least after the Code of ecclesiastical law obtained force, there no longer seems to be a strict obligation of justice to observe an informal testament for pious causes which has been declared invalid by civil law. Thus, at least, if the civil formalities prescribed in making a testament could have been observed and nevertheless were neglected. For greater security, however, it is preferable to seek from the Sacred Penitentiary a composition which, by its own testimony, is readily obtained.⁵⁴

⁴⁵ De contract. diss. 2, a. 5, § 3.

⁴⁶ Cf. Dominic Soto, De iure et iust. l. 4, q. 5, a. 3; Bañez, Comm. in 2, 2, preamble to q. 62; Billuart, l.c.; and, among the moderns, Tanquerey, De iust. n. 697ff.

⁴⁷ L.c.

^47a Collectanea de Prop. Fide II, n. 2099.

⁴⁸ Summula theol. mor. II, n. 339.

⁴⁹ De iust. P. 2, q. 2, obs. 8.

⁵⁰ De contract. q. 53.

^50a Cf. A. Retzbach, Die Verbindlichkeit formloser letztwilliger Verfügungen zu frommen Zwecken, Freiburg, 1917, p. 47f.

⁵¹ Theol. mor. tr. 11, n. 37.

⁵² De iust. n. 700.

⁵³ The words in canon 1513, § 2, "the heirs are to be admonished," are preceptive and not merely exhortative, as the Pontifical Commission declared on February 17, 1930 (Acta Ap. Sed. XX, 196). Canon 2348 establishes: "One who has obtained a legacy or donation for pious causes, whether by an act inter vivos or by testament, even through a trust, and neglects to fulfill it, shall be compelled to do so by the Ordinary, even through a censure."

⁵⁴ Cf. above, n. 271, and Linzer theol.-prakt. Quartalschrift LXV (1912), 841; LXXVII (1924), 299.

278. Acceptance of a testament. No one is bound to accept a testament made for his own advantage. I say, however, made for his own advantage, for sometimes civil laws prohibit, e.g., tutors from refusing testaments made for their wards.⁵⁵ When someone has accepted the entire inheritance of another, he is bound also to pay all the debts of the deceased, although these exceed the resources of the inheritance; e.g., sons accepting the paternal inheritance must also pay all the real debts of the father. Thus at least in the external forum, for authors commonly excuse the heir from this obligation in the forum of conscience,⁵⁶ and this even after the sentence of a judge.⁵⁷ But in order to avoid so harsh an obligation, civil laws are wont to grant the universal heir time for deliberating, e.g., one or three months, whether he wishes to enter upon the inheritance purely or "under benefit of inventory," i.e., not beyond the value of the inheritance.

⁵⁵ Cf. German Civil Code § 1822, 2.

⁵⁶ Cf. St. Alphonsus, Theol. mor. l. 1, n. 150.

⁵⁷ Cf. Lehmkuhl, Theol. mor. I, n. 1398.

279. Revocation of a testament can always be made freely by the testator, unless, however, a so-called "inheritance pact"⁵⁸ has been made, such as is in force in some regions, e.g., between husband and wife, between brothers or sisters, etc. Even the testator's promise not to change the testament is no obstacle to a reasonable change; indeed, neither is an oath added to it, at least if there is question of a testament for profane causes. The reason for all these things is that revocability pertains to the very essence of a testament. On the part of the heirs, civil codes sometimes permit the contesting of a testament, especially if it lacks legal form.

The testament of a deceased person, or rather his last will, can be commuted for a reasonable cause by the civil prince, as possessing high dominion over the goods of subjects, if there is question of merely profane causes; by the Supreme Pontiff, if there is question of pious causes. For testaments concerning pious causes are considered as sacred things accepted by God and are equated with vows and oaths.⁵⁹ Bishops and other prelates cannot by their own authority change last wills, unless, however, the testator himself has expressly granted this;⁶⁰ they can also by their own authority interpret testaments. Those cases in which, according to several authors,⁶¹ a bishop would be able by his own authority to commute the last wills of a testator are, according to present practice, better resolved by the authority of the Supreme Pontiff, who judges pious legacies through the Sacred Congregation of the Council.⁶² Such cases are: 1. if money bequeathed for some use is not sufficient;⁶³ 2. if the thing bequeathed cannot serve the destined use because of an impediment of law or fact; 3. if the legacy was made for a use not so necessary; e.g., if a legacy was made for buying a chalice and the chalice is no longer so necessary, while, on the contrary, the church greatly needs chasubles.

The Sacred Congregation for the Propagation of the Faith in 1807 explained the whole doctrine concerning the commutation of a last will for pious causes excellently in these words: "The wills of the faithful can indeed be commuted by the authority of the Apostolic See, ... but commutations ought not to be made except for a just and reasonable cause, so that the Supreme Pontiff may be regarded as, and may be, a faithful and prudent administrator. Since the same Supreme Pontiff is bound by this law, who alone has the power of effecting commutations of this kind, it belongs to him to know and judge concerning the cause which intervenes in individual cases."⁶⁴ From these words two things clearly follow: 1. only the Supreme Pontiff can commute last wills; 2. not even the Supreme Pontiff can do this except for a just and reasonable cause.

Note. Ordinaries are the executors of all pious wills, both in prospect of death and inter vivos; and therefore other executors, after discharging their office, must render an account to the Ordinary.⁶⁵

⁵⁸ Inheritance pact (Erbvertrag). Cf. German Civil Code § 2289ff.

⁵⁹ Cf. Council of Trent, sess. 22, c. 6, De reform.

⁶⁰ Code of Canon Law, canon 1517, § 1.

⁶¹ St. Alphonsus, l.c., l. 3, n. 931; Aertnys, Theol. mor. l. 3, n. 424; Noldin, De praeceptis n. 556.

⁶² Constitution Sapienti consilio, June 29, 1908; Acta Ap. Sedis I, 11.

⁶³ Cf. Code of Canon Law, canon 1517, § 2.

⁶⁴ Collect. de Prop. Fide n. 689.

⁶⁵ Cf. Council of Trent, sess. 22, c. 8, De reform.; Code of Canon Law, canon 1515.