§ 2. Canonical and Moral Exposition

Use and Tenor of Canonical Law. 1. Although by the general disposition of c. 1529 civil laws concerning contracts are canonized, nevertheless c. 1513 wishes those things to be firm which have been disposed "for pious causes, whether by an act inter vivos or by an act mortis causa," and therefore whether by testament or by donation mortis causa, by a person who by natural and ecclesiastical law, civil incapacity therefore not being considered, is freely able to establish concerning his goods. Wherefore heirs are to be admonished to fulfill the wills of the testator, even those which are destitute of civil solemnities. And he who, even through trust, has obtained a legacy and has refused to fulfill it must be compelled to this by the Ordinary, even by censure (c. 2348).

2. As to the solemnities required, in the external forum canonical proof, by two witnesses or by the hand of the testator, is required and suffices.

3. As to execution, "Ordinaries¹ are the executors of all pious wills, both mortis causa and inter vivos" (c. 1515). Others, however, can be designated by the testator. But these, when they have discharged the office, must render an account to the Ordinaries. Clauses contrary to this right of Ordinaries, which have been added to last wills, are to be held as not added (c. 1515, § 3).

By the law here constituted, unless the executor has refused or resigned the office, or unless he had to be removed, it is not lawful for the Ordinary to substitute an executor for him whom the testator has designated, or to undertake the administration himself; but he is rather given in aid to the legal and testamentary executors. Cf. d'Annibale, II, 369.

Commutation properly so called of pious legacies which can be fulfilled by execution, even if a proportionate cause is present, is reserved to the Holy See, unless the testator has given this power to the Ordinary (c. 1517, § 1).

But if an obstacle of law or fact has impeded execution, then there is place for commutation understood more broadly, by which the will of the testator is preserved in the better way in which it can be, but either the burdens are diminished or they are converted into similar ones. Excepting the reduction of Masses, this commutation is also permitted to the Ordinary, after those whose interest is involved have been heard, c. 1517, § 2. Cf. Piscetta-Gennaro, II, 950.

¹ The Code does not say "Ordinaries of places."

I. Obligation of Making a Testament. 1. As to the active use of the faculty of making a testament, he must make a testament from commutative justice who by this means alone can fulfill an obligation of justice, for example restitution; from piety and charity, he who by this means alone can provide either for a surviving spouse, or for a legitimate child from a marriage not civilly acknowledged, or for an illegitimate child not legally acknowledged; he who by a testament can prevent grave lawsuits, for example concerning the division of goods; he who must take care lest a minor son be committed to a very bad tutor; he who by a testament can snatch the inheritance from one who would abuse it. - In the testament itself, brothers or sisters gravely in need cannot be passed over without a grave injury of piety, even in order to succor other poor persons or pious causes. St. Alphonsus, l. 3, n. 946. If they are simply poor, or if there is question of other blood relatives, there is only a light obligation of preferring them per se to strangers. Of itself, he is not to be blamed who, moved by no hatred, passes over blood relatives not in need or divides goods unequally among children. But neither is to be done without a just cause, lest cooperation be furnished for foreseen quarrels, dissensions, and enmities, yet of itself venial, since the testator uses his own right and the evils which follow are rather to be attributed to the avarice of the heirs. Just cause for passing over blood relatives can be higher and pious ends to which someone wishes to consecrate his goods; and for unequal partition among children, the greater merits and services of one, the greater need of another, and like reasons.

II. On Inofficious Testaments. In the forum of conscience, parents who make inofficious donations or legacies, whether openly or in a disguised form, a) do not violate commutative justice; b) they will be able gravely to violate piety, if without grave cause they have harmed the legitimate portion. Indeed, since liberty of making a testament seems to be restricted too much by our laws, any truly reasonable cause will excuse them from sin. Donataries or legatees, at least with justice uninjured, before the sentence of the judge preserve what they already possessed before the death of the testator or donor, or what they acquire by voluntary execution. Whether they violate another virtue must be gathered from the circumstances. - Necessary heirs can act for the reduction of dispositions, even if they have been made in favor of a pious cause.

III. Promise Not to Revoke a Testament. A sworn promise not to revoke testaments begets no obligation of justice, but, at most, only one of religion, which can be relaxed by ecclesiastical authority. Concerning the canonical value of the same promise doubt can be had today, since from c. 1529, in the matter of contracts, just civil laws are to be observed. If, however, the promisor has wished in this way to dispose irrevocably in the present concerning his inheritance, this disposition for pious causes will be valid by c. 1513 in the canonical forum and in conscience.

IV. Interpretation of a Testament. The clauses of a testament are to be interpreted according to the reasonable will of the testator. The time within which they are to be executed is defined by law and usages. The designation of a pious cause is presumed to have been made demonstratively, not taxatively, so that if the expressed application becomes impossible, another pious cause, as similar as can be, is substituted by the judgment of the bishop and with the executor assenting, unless he dissents without just cause. But the heir or executor who has handed over to an upright priest a sum of money for a definite number of Masses, after obtaining testimony, even oral, of the burden accepted and the stipend received, is freed from his obligation. Cf. c. 839.

V. Force of an Inform Testament. On account of various controversies about the origin of the right of making a testament and about the mind of the legislator, to whom some ascribe the will of wholly invalidating inform testaments, others only the will of making them rescindable, practically the heir is not bound to execute the profane dispositions of an inform testament; but the legatee is bound neither to restore what has been accepted nor to warn the heir about the defect of the testament. But if the heir acts, if the civil law is clear, the legatee ought rather to yield from charity already before the sentence. Today the right of occult compensation seems to have to be denied to the legatee from an inform testament. But he is not judged to compensate himself who secretly takes from the still undivided mass of the inheritance. Nevertheless, to the judge asking and tendering an oath, he will have to respond sincerely. If the sentence of the judge has intervened, it will have to be stood by. Yet the heir per se is held by the promise by which he promised the testator the execution of a will not solemnly expressed. By what kind of obligation? This must be prudently gathered from his mind and from the circumstances. The obligation will necessarily be one of strict justice, if in this way he impeded the will from being expressed in solemn form, or if the goods came to him on account of that promise.

VI. Testament for Pious Causes. 1. A pious cause or pious matter is called "whatever chiefly is done with regard for God and a supernatural end, to merit grace or glory before God, or in satisfaction for one's own or another's sins" (Molina, Iust., d. 134, 1). Therefore today, on account of secularized hospices and the preaching of a merely natural altruism, what is conferred from human philanthropy upon lay institutes is not judged to have been given to pious causes.

2. That the heir or the burdened person be obligated, he must be certain concerning the absolute will of the deceased, for example because he has recognized the hand of the testator, or because the dying man manifested his will to him; nor must he believe one witness, even a very approved one. This is gathered from c. Relatum, II, De Test. (III, 26). With that certain knowledge supposed:

3. Because both the capacity of persons and the form here are to be estimated from canonical law, heirs cannot use merely civil nullity in order to omit pious legacies canonically efficacious. Yet it must be confessed, as Piscetta and Gennaro observe, that canon 1513, § 2, is conceived in words which introduce doubt concerning a strict obligation, since it is not said, "the heirs are to be admonished concerning the obligation of conscience of fulfilling the will of the testator," but it is merely prescribed, "they are to be admonished that they fulfill the will of the testator." But this tempered manner of speaking is explained both by solicitude to avoid difficulties of the civil external forum, and by ecclesiastical prudence and moderation, which does not wish souls to perish on account of temporal goods. Wherefore an admonition which is certainly foreseen as useless can be omitted; and it is to be made in such a way that, with offense of persons avoided, it may persuade resisting heirs toward the way of recourse to the Holy See for an amicable composition.

Fideicommissary substitution also for pious causes will have to be executed. And the heir who, relying on French law, has rejected the legatee on whom a pious burden was imposed, in the place of the legatee and similarly as he, will be held by the obligation of executing the substitution. If the cause was profane, the legatee, if the law, as for example Italian law, invalidates only the obligation of the fideicommissum, will per se be able to accept the legacy and not fulfill the burden. But if at the same time the legacy is invalidated, the matter will depend on the prevailing will of the testator, according as he, the burden not being fulfilled, would have preferred the thing to be possessed by the heir or by the legatee.

I. Common Notions. Inheritance is a mixed mode of acquiring by natural law and by positive law, by force of which one succeeds into the universality or a proportionate part of the patrimony or goods of another person deceased.

Inheritance is distinguished as from intestacy and from testament.

Because hereditary transmission to connected persons and transmission according to the will of him whose patrimony it was are founded in the law of nature, which nevertheless must be completed and determined by positive law, inheritance is said to be a mixed mode of acquiring. But the succession of the heir is always into the universality or a proportionate part of the goods. He to whom a thing as particular is devolved is a legatee, not at all an heir.

II. Legitimate inheritance, or that which is deferred by law, varies, according to various laws, in principles, in ordering, and in effect.

1. In principles: either the law is judged to supply the will of the deceased, or to call the heir as if in the name of God, or to attribute the right of succeeding according to both reasons.

2. In ordering: some laws, according to the origin of the goods, divide the inheritance into two parts, one appointed to relatives of the paternal line, the other to relatives of the maternal line; while other laws divide the mass without that distinction; division is sometimes made by heads, sometimes by stocks; ascendants sometimes exclude collaterals or concur with collaterals. The right of the surviving spouse varies, as does the degree of consanguinity beyond which succession does not occur; the mode also varies by which illegitimate children or descendants are admitted to succession. The option of succeeding from testament or from law, to be left or taken away from intestacy, can exist.

3. In effect. The possession of the heir can begin either from the moment of death or from the acceptance or reception of the goods; positive acceptance can be required, or non-repudiation can suffice; simple acceptance and acceptance under a mode, for example with inventory reserved, are distinguished; hereditary succession can take place into the patrimony in such a way that the heir is held for debts even beyond the powers of the inheritance, or it can be limited to the goods, so that beyond the accepted goods the heir is bound to pay no debt.

Everywhere, morally, heirs simply legitimate or legal, who are called unless they are excluded by testament, and necessary heirs, who cannot wholly be excluded, are distinguished. Generally, anticipated renunciation of an inheritance, that is, of the inheritance of a living person, is invalid, and so is every pact concerning a future inheritance.

In the canonical forum, professed of simple vows acquire per se inheritances deferred to them, but professed of solemn vows do not per se acquire them; these acquire them either for a capable monastery or for the Holy See, unless, as it seems to us, before profession they disposed concerning these goods.

In the forum of conscience, heirs are not held beyond the powers of the inheritance; yet to him who has paid more either beyond the powers or after the sentence of the judge, occult compensation does not seem able to be conceded. Children born from a merely civil marriage seem per se able to stand by the civil law which holds them as legitimate.

III. Inheritance from Testament. 1. A testament is a juridical act, generally solemn, revocable until death, by which someone either institutes an heir and divides the patrimony, or simply declares what he wishes to be done after his death concerning the whole patrimony, or concerning its part, or concerning certain particular goods. For, according to the various law, the institution of an heir is essential, or a simple disposition of goods is permitted to be made by testament. Besides heirs, there are also legatees, at least under a particular title, and sometimes also under a universal title.

Certain laws, contrary to others, also admit a succession contract.

2. Everywhere an authentic testament, that is, one in which a competent public official, a notary, intervenes, public or mystic, secret, and a private testament, for which a writing made by the proper hand of the testator is required, are distinguished; and in extraordinary circumstances of a spreading plague, navigation, etc., a peculiar form has been foreseen.

3. Hereditary portions and legacies can be made subject to various clauses and conditions. It must be seen what the positive laws establish concerning their force and efficacy. Impossible conditions are often held as not written. It must be observed especially how far the testator can, not only for the case in which the one first instituted has failed by death or another cause or has not accepted, substitute another (vulgar substitution), but can also impose on the one first instituted the obligation of preserving the goods until death and then of leaving the same to another (fideicommissary substitution); or by secret mandate impose on the heir or legatee the burden of handing over to another, or of applying to a certain end, all the legacies or part of them (fiduciary substitution).

4. Full capacity of making a testament is most often denied to minors by birth; yet partial capacity, for example concerning half a part, or a testament of public form, is often customarily conceded earlier.

5. Execution of a testament can be committed to the person whom the testator has designated; but per se it is incumbent on the heir.

6. In the canonical forum, dispositions made for pious causes by a person who by natural and ecclesiastical law can freely establish concerning his goods are firm. But for validity in the external forum, canonical proof is required and suffices. Executors of a testament for pious causes must render to the Ordinary an account of the fulfilled office; for he is the executor of all pious wills (c. 1515).

7. In the forum of conscience: a) both commutative justice and piety and charity can obligate someone to make a testament. In making the testament itself, the norms of those virtues are to be observed. - b) A testament is called inofficious by which the testator has made legacies from his goods beyond the portion concerning which, according to the law, he was able to dispose. Those who make such a testament are not unjust; yet they can harm another virtue. Goods which someone has had from an inofficious donation or testament he can preserve; nevertheless, they are to be returned to the heir claiming them, even if the donation or legacy was made for pious causes. A sworn promise not to revoke a testament begets no obligation of justice, but at most one of religion. Yet, by force of c. 1513, an irrevocable disposition concerning one's inheritance which has been made for pious causes is valid. - c) The interpretation of a testament is to be made according to the reasonable will of the testator; but its execution must be made within the time defined by law and usages. A designation made of a pious cause is presumed to have been made demonstratively, not taxatively. - d) A civilly inform testament confers on the legatee a sufficient title why he can preserve the accepted legacy and need not warn the heir about the defect of the testament; but it does not suffice that the heir must execute profane dispositions, or that occult compensation be permitted to the legatee. Yet by a promise of executing the expressed will of the testator, even without legal solemnity, the heir is held by a title which must be prudently gathered from his mind and from the circumstances. But if a testament or legacy has been made for pious causes and in canonical form by a person canonically capable, it must be executed. For this it is enough that, by recognition of the testator's hand or by the testimony of two witnesses, one witness, even an excellent one, not sufficing, or by a declaration directly made to himself, the burdened person is truly certain concerning the will of the deceased. Wherefore even from fideicommissary substitution, a pious cause can suffer no detriment.