Case 5. A Legacy to the Parish Schools

Titia consulted a priest concerning her obligations in these circumstances. Recently her husband died, who by his will left her two hundred pounds annually, one hundred to the parish priest for the parish schools, but a much larger part of his property to his brother for the use of a most beloved nephew. Titia, however, since she knew that the witnesses to the will had signed it separately and in different places, contested its validity and won the case. She then obtained letters of administration and, being about to distribute the goods of her husband, wishes to know whether in conscience she is bound to pay the hundred pounds to the parish priest. Hence:

1. What formalities are required by English law in making a will?

2. Does a defect of those formalities render a will invalid in conscience?

3. What is required for the validity of a will for pious causes?

4. What is to be said of the case?

1. What formalities are required by English law in making a will?

Those formalities are laid down in the Wills Act¹: “No will shall be valid unless it shall be in writing and... signed at the foot or end thereof by the testator or by some other person in his presence and by his direction, and such signature shall be made, or acknowledged, by the testator in the presence of two or more witnesses, present at the same time, and such witnesses shall attest and shall subscribe the will in the presence of the testator, but no form of attestation shall be necessary.”

1 1 Victoria, chapter 26, section 9.

2. Does the absence of those formalities make a will invalid in conscience?

Probably at least an informal will is not at once invalid in conscience. It may be taken as a declaration of the last will of the testator and as such acted upon. But the law may be invoked by any one who is interested to have the informal will set aside, and if this is effectively done it must be held invalid in conscience as it is in law.¹

1 Manual of Moral Theology, vol. i, p. 502.

3. What is required for the validity of a will in favor of pious causes?

Such wills are subject to canon law, which requires nothing more for their validity than certain proof of the intention of the testator, and the verbal testimony of two witnesses is sufficient for the purpose.²

2 The same work, p. 506.

4. The case. The will of the husband of Titia was invalid by English law, as the witnesses did not sign in each other's presence. However, the legacy to the schools is governed by ecclesiastical law, and as there is no doubt about the intention of the testator, Titia is in conscience bound to pay the legacy. This solution has been upheld by many decrees and answers of the Roman Congregations. Thus the Sacred Congregation for the Propagation of the Faith gave the following answer to Cardinal Logue, April 30, 1895: “Now indeed it is certain . . . that the legacy endures, since the civil law cannot by its authority determine those things which pertain to pious causes; and consequently the legacy binds the heirs according to the tenor and mode of the legacy itself.”¹

1 Irish Ecclesiastical Record, vol. xv, p. 259.

A case very like the one proposed was submitted to the Sacred Penitentiary and solved by it, Jan. 10, 1901: “The Sacred Penitentiary, after maturely weighing the matters set forth, responds: The practice of this Sacred Tribunal in similar cases is that pious legacies generally be regarded as valid and obligatory in the tribunal of conscience; the heirs, however, are readily admitted to a composition with the Church or the pious cause to which the legacy was made.”²

2 Acta S. S., xxxiv, p. 384.