Scholion I. On a Testament and Legacy for Pious Causes

Under the name of a pious cause come: 1° every thing which by its nature is ordered to a supernatural end, such as Masses and processions. To these, from the sense of the Church, are reduced the poor and miserable persons, at least collectively; 2° every institute erected by ecclesiastical Authority for a religious or charitable end, such as churches, monasteries, episcopal hospitals, and so forth; but not those charitable institutes which have not been approved by ecclesiastical Authority, such as civil hospitals. There are some, however, who count dispositions made in favor of institutes of this kind, or even other dispositions made for public utility, among dispositions for a pious cause, provided they are made in view of a supernatural end.¹ They would say the same concerning a disposition in favor of some poor person.

I. Governance of a testament for a pious cause. A testament, likewise a clause and a legacy, for a pious cause is subject to ecclesiastical power alone. Hence per se - that is, unless the Church itself establishes it - the capacity of testating and the mode of testating required by law are not required. This follows from the fact that the Church is a perfect society in its own sphere, independent of the civil State, and indirectly superior to it.²

II. Capacity of testating for a pious cause. One who by natural and ecclesiastical law is freely able to establish concerning his own goods can leave goods to pious causes, whether by an act inter vivos or by an act mortis causa, that is, by testament (can. 1513, § 1). Therefore it can happen that someone is able to make a testament for a pious cause who, considered according to civil law, lacks the capacity of testating. Practically, however, that will not so easily have place, because most who are incapable by civil law, for example minors, are also incapable by canon law (can. 89).

III. Mode of testating for a pious cause. Those things suffice which are required by natural law for a valid testament, that is, the free, manifested, and not revoked will of the testator.

A few indeed judge that civil formalities also must be observed;³ but authors almost universally and deservedly deny this. For a testament for a pious cause, as subject to the Church alone, must be held as immune from civil form, unless it is proved that the said form has been assumed by the Church. But this is clear from no source. Then Canon Law, considered in can. 1513, § 1, for the very faculty of testating in favor of a pious cause, does not admit the requisites of civil law; and this brings in a presumption that the requisites imposed by civil law in the use of that faculty are also not accepted by the Church. Then can. 1513, § 2 requires that the aforesaid solemnities be observed if it can be done; but by the words if it can be done absolute necessity is excluded. Finally the cited canon declares that the heirs are to be admonished to fulfill the will of the testator, even if civil solemnities have been omitted; but the word are to be admonished is not only exhortative but preceptive.⁴ Therefore an admonition to be made - otherwise if there were discussion only of persuasion - argues that an obligation is had. Moreover, in doubt, if any remains for someone, one must not depart from the old law (can. 6, 4°).⁵ Nevertheless, the Sacred Penitentiary, to the question whether heirs who, because of a defect of legal formality, refuse to pay a pious legacy can be absolved, responded on February 10, 1901: "the practice of this sacred tribunal in similar causes is that generally pious legacies are to be held valid and obligatory in the forum of conscience; nevertheless heirs are readily admitted to composition with the Church or the pious cause to which the legacy has been made."

Although civil formalities are not required in a testament and legacy for a pious cause, nevertheless they are usefully observed, so that the dispositions made may certainly be able to obtain their due effect also in the civil forum (cf. can. 1301).

Corollary I. The legal heir, if he is also executor of a testament for a pious cause, is bound to execute the testament if the will of the testator is clear to him, for example by writing, by words, or by nods of the deceased given to him, that is, to the heir (St. Alphonsus, III, 923). But he is not bound to acquiesce in the testimony of only one witness, however approved, for example of the pastor alone or confessor alone (St. Alphonsus, III, 924; cf. can. 1791).⁶

Corollary II. Another executor, not the legal heir, can and is bound to execute a testament for a pious cause to which the legal heir does not object, even if the will of the testator is clear to him, that is, to the executor, only through the testimony of one approved witness.

Corollary III. A testament void with respect to profane causes has force with respect to pious legacies inserted into it. Some deny this, "because when the principal falls, the accessory falls; ... but a special reason is found in the accessory which is not in the principal, namely the favor of religion; and therefore there only canon law is attended to" (St. Alphonsus, III, 924).

Corollary IV. If profane legacies are inserted into a non-solemn testament for a pious cause, these must be handed over or not handed over according to the norm of civil law.

IV. The execution of pious wills is governed by these points:

1. Ordinaries, namely for the different cases the Ordinary of the place or the major Superior of an exempt clerical religious institute, are executors of all pious wills, both mortis causa and inter vivos. By this right, Ordinaries can and must watch, even through visitation, that pious wills be fulfilled, and other delegated executors, when they have performed their office, must render an account to them. Clauses contrary to this right of Ordinaries, added to last wills, are to be held as not added (can. 1515).

2. A cleric or religious who has received goods for pious causes in trust, whether by an act inter vivos or from a testament,⁷ must make the Ordinary certain concerning his fiduciary commission and indicate to him all goods of this kind, whether movable or immovable, with the burdens attached. But if the donor has expressly and altogether forbidden this, let him not accept the fiduciary commission (can. 1516, § 1). The Ordinary must require that fiduciary goods be placed safely and watch over the execution of the pious will according to the norm of can. 1515 (can. 1516, § 2). When fiduciary goods have been committed to some religious, if indeed the goods have been assigned for helping the churches, inhabitants, or pious causes of a place or diocese, the Ordinary mentioned in §§ 1-2 is the Ordinary of the place; otherwise, the Ordinary is the proper Ordinary of the same religious (can. 1516).

"To exercise its power the Holy See uses, in the internal forum, for occult cases, the Sacred Penitentiary; in the external forum, the Sacred Congregation of the Council and the Fabric of St. Peter; for mission places, the Sacred Congregation of Propaganda Fide; for religious, the Sacred Congregation for Religious; and, unless we are mistaken, after the declaration of December 7, 1922 (Periodica XII, 43 ff.), which decrees this about alienations, the Sacred Consistorial Congregation for the episcopal mensa, and the Sacred Congregation of Seminaries and Universities, for Seminaries."⁸

V. Change of last wills. The reduction, moderation, and commutation of last wills, which must be done only from a just and necessary cause, are reserved to the Apostolic See, unless the founder has expressly granted this power also to the Ordinary of the place. But if, because of diminished revenues or another cause, without any fault of the administrators, the execution of the burdens imposed has become impossible, then the Ordinary also, after hearing those whose interest is involved, and preserving the will of the founder in the better way in which it can be done, will be able likewise to diminish the same burdens equitably, with the exception of the reduction of Masses, which always belongs solely to the Apostolic See (can. 1517).

¹ Schmalzgrueber, Ius ecclesiasticum, t. I, p. III, tit. XXVI, n. 43, 2 and 3.

² Sacred Penitentiary, June 23, 1844, and January 10, 1901.

³ Thus Retzbach, Die Verbindlichkeit formloser letztwilliger Verfuegungen zu frommen Zwecken nach dem alten und neuen Kirchenrecht.

⁴ Pontifical Commission, February 17, 1930 (Acta Apostolicae Sedis 1930, p. 176). The Code uses a prudent word when it says that heirs are to be admonished, lest by too great insistence good faith be uselessly disturbed, or difficulties be raised in the civil forum (Vermeersch, Epitome, II, 835).

⁵ The things to be said concerning donation, or rather concerning disposition in favor of a pious cause, should be consulted.

⁶ Cap. Relatum, II, De Test. (III, 26).

⁷ For example, a sum of money donated or bequeathed with the obligation of handing it over to a pious institute.

⁸ Vermeersch, Epitome, II, 836.