Donation for a Pious Cause

What a pious cause is, see n. 826.

I. Governance of donation for a pious cause. A donation for a pious cause is subject to ecclesiastical power alone (826).

II. Capacity of giving to 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 by an act inter vivos, that is, by donation (can. 1513, § 1). Therefore it can happen that someone is able to give to a pious cause who, with civil law considered, lacks the capacity of giving. 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 (cf. can. 89).

III. Mode of giving to a pious cause. With respect to the mode of giving to a pious cause it is disputed whether civil solemnities have force for these donations. Now the affirmative opinion seems safe in practice. For first, the Code, can. 1513, § 2, admonishes, if there is question of a testament, that the solemnities of civil law be observed, the admonition not being extended to donations; and this is then aptly explained only if you admit that the solemnities have force for donations, so that an admonition concerning them would be superfluous. Then the Code, can. 1513, § 2, declares that heirs are to be admonished to fulfill the will of the testator, even if the solemnities of civil law have been neglected, again with the admonition not extended to donations; and this is well explained if you say that solemnities have force with respect to donations, so that, if they have been neglected, the donation cannot be urged. I said that this opinion seems safe in practice, although theoretically it is not certain; hence I judge that neither he who judges himself not to be bound by an informal donation, nor he who, resting on the contrary opinion, retains something given informally, is to be disturbed.

Objection. Canon 1529 establishes that in contracts the prescriptions of civil law are then only to be observed if there is question of ecclesiastical matter, that is, of ecclesiastical goods. But a donation made to a pious cause is not concerned with an ecclesiastical good.

Response. To someone it can seem that the objector insists too subtly on the letter. It is added that can. 1529 adds: unless something else is provided by canon law. But again, to someone it can seem that something else is sufficiently provided by can. 1513.

IV. The execution of pious wills was explained in n. 876.

Note 1. Unless the contrary is proved, those things which are given to rectors of churches, even of religious, are to be presumed to have been given to the church (can. 1536, § 1).

Note 2. A donation made to a church cannot be repudiated by its rector or Superior without the permission of the Ordinary (can. 1536, § 2). When a donation has been illegitimately repudiated, for damages which have arisen therefrom there is given an action of restitution in integrum or of indemnity (can. 1536, § 3).

Note 3. A donation made to a church and legitimately accepted by the same cannot be revoked because of the ungrateful mind of the Prelate or rector (can. 1536, § 4).

1063. DEFINITION. Donation is the bestowal of one's own thing made from liberality, accepted by the donee. - Therefore three things are required for donation: on the part of the donor, liberality, to which no right compels; on the part of the donee, acceptance, which renders the act perfect; on the part of the thing, transfer of ownership.

Transfer of ownership to the donee is not perfected everywhere in the same way. For in some places it is perfected by the delivery of the thing itself, and elsewhere even before delivery.

a) From Roman and German Law it is perfected by the delivery alone of the thing; and if the donor refuses to make this delivery, an action against the donor is conceded to the donee, since he has a right to the thing.⁰²

b) From Austrian Law the transfer is perfected either by delivery of the thing or by an authentic document subscribed by a notary (Austrian Code, 943).

c) From French, Italian, Spanish Law it is perfected even before the delivery of the thing. Nevertheless, if movable goods, after a donation has been made, are donated or sold and delivered to another, this latter, provided he is in good faith, can retain them, since law thus disposes on account of the public good. - But the unfaithful donor is held concerning damage toward the donee.⁰³

From this you will infer: the donee, as soon as he has acquired ownership of the thing, can use it so that it becomes fruitful, even if, for example, it is a question of money for Masses which were to be said after the death of the donor, provided the possessor furnishes security. Ami du Cl., 1910, p. 111.

The FORM in which donation must be made is accurately indicated by Positive Law.⁰⁴ Yet let the things which we said above n. 1054 be recalled. From the law of nature no form is required. Also, no solemnity is required by Positive Law for manual donations, which are perfected by delivery alone.

From this you will conclude: if parents secretly donate to illegitimate children, for example through manual donations, fideicommissum, something not conceded by law, they are not to be troubled, and much less the children accepting, provided such disposition is illicit under no other title (III, 952).

DIVISION. Donation is distinguished: 1. simple, which is made without limitation, and qualified, which is made under condition or mode; 2. purely liberal, which supposes no obligation in the donor, and antidoral or remuneratory, which supposes an obligation of gratitude; 3. donation between the living, by which someone actually and irrevocably transfers the ownership of his thing to another accepting; and donation on account of death, by which ownership is not transferred into the one accepting unless the donor has died (cf. n. 1068, q. 2).

Note. Civil law favors donations as little as it can; for it restricts the donor's capacity, limits the disposable matter, and prescribes a solemn and therefore more difficult form. Yet in Roman Law donation for pious causes, and in modern Law donation on account of marriage, enjoys peculiar privileges (cf. Spanish Code, § 1327 ff.).

1064. PRINCIPLES. I. All can donate who are impeded neither by nature nor by right. Now, by nature those lacking the use of reason are impeded; but by Right⁰⁵ minors, wives, interdicted persons, etc., are impeded (cf. n. 1037, 1038). Moreover, in various places relative incapacity is in force, for example of spouses toward each other; concerning this incapacity the Law of one's own region must be consulted.⁰⁶

1065. II. One's own and present goods can be donated, by whose cession neither the rights of creditors nor the legitimate of necessary heirs are injured. Thus from Law partly natural, partly positive.

Therefore it is required: 1. that the goods be one's own; wherefore administrators of communities cannot make donations from the patrimony of these communities, unless they are remuneratory, or unless they are expended in alms; - 2. that the goods be present; for future goods are commonly prohibited by Positive Law from being donated, except in the determined circumstances described there;⁰⁷ - 3. that the rights of creditors not be injured; for goods are not understood unless debt has been deducted, as the axiom bears: "No one is liberal unless liberated." But the donee accepting becomes a participant in the donor's injustice, and is held to restitution, provided he knows that the donor is made unequal to restoring (III, 722); - 4. that the legitimate remain intact, or the portion of goods owed to necessary heirs (cf. below n. 1081).

Yet it must be adverted that remuneratory donations are not computed among donations properly so called, when they are made according to the quantity and quality of merit, according to the estimation of prudent men; nor manual donations, which are usually made among relatives and friends, as little gifts, etc. - Nor does civil law prohibit donations from mere revenues; for the legitimate portion owed to necessary heirs consists only in the patrimony, that is, only in the capital, which parents are held by no right to increase.

1066. III. Donation is always revocable before acceptance, even if it has been firmed by oath; it is sometimes revocable after acceptance. The reason for the former is that no obligation can be contracted without the mutual consent of the parties, and because an oath follows the nature of the act. The reason for the latter is that such a change of circumstances can be given that revocation of the donation becomes licit. See other things n. 1068.

As to the first, note: a) Tacit acceptance suffices, for example if a donation is made to one present and silent; because in favorable things silence is held for consent. Otherwise French Code, 894 and 932. Indeed, a donation made to infants has force before the acceptance of the donee, because the law itself accepts for infants (III, 725).

b) But acceptance is not necessary, at least in Roman Law, if donation is made immediately to God, for example in these words: I promise God to give to such a church, etc.; because, since the intention is borne toward God, the donation has force as a vow. But if it is made immediately to a church, hospital, etc., the acceptance of the prelate, administrator, or at least of some private person who accepts in the name of the church, is more probably required. "In doubt concerning the intention of the donor, he is presumed to have had the mind of vowing, because, in pious causes, when a promise is made in absence, commonly the intention is borne toward God" (III, 726).

c) From several Codes,⁰⁸ a donation made in a nuptial pact cannot be impugned on account of defect of acceptance.

As to the second, observe: The causes on account of which a donation, even one accepted, can be revoked are the following: a) If the conditions under which the donation was made are not fulfilled. b) If the donation is inofficious, that is, if it injures children in the legitimate; in which case, it is the common disposition of Law that the donation be reduced to the disposable part. c) If the donee has become enormously ungrateful, for example if he has attempted to bring death on the donor, if he has inflicted grave injuries on him, if he has refused him necessary food. d) If offspring is born to the donor who previously lacked it. But how far the faculty of revoking extends itself in these cases, and what must be observed by the donor, Positive Law recounts, which admits the greatest variety in this matter.⁰⁹ Cf. Pruner, de Jure, I, § 144.

In GERMAN Law (l. c.), the birth of offspring is not a cause of the revocability of donation; on the other hand, another cause exists, namely, if the donor does not have power to support himself according to his condition, namely to procure support owed to spouse or relatives.

1067. IV. All who are capable of possessing can acquire donations. Wherefore it suffices that the donee at the time of the donation is conceived; but a donation made to one to be born is considered made under the condition that he be born alive and viable (cf. n. 741).

By Positive Law, communities are commonly prohibited from accepting donations without the consent of civil authority; and this disposition, insofar as it is a question of communities subject to ecclesiastical jurisdiction, is plainly unjust (cf. n. 874).

Likewise, by relative incapacity, several are prohibited from accepting donations from determined persons, or in peculiar circumstances. The disposition of laws in this matter is not everywhere the same. Yet rather commonly, incestuous and adulterine children cannot accept from their own parents except food alone, and recognized natural children only the legitimate.¹⁰

1068. • Questions. QUAER. 1. If before acceptance the donor or donee DIES, what is the right?

Resp. 1. If the donor dies, the matter is doubtful: some deny that the donation can be validly accepted, "because, after the death of the donor, his will cannot be united with the consent of the donee, as is required for acceptance" (III, 729). But others affirm it, "from the fact that the will of the donor virtually perseveres in the letters, or in the messenger sent, or in the legation given to him of making the donation."

"Supposing that each opinion is probable, I say that if the donee in good faith accepted the donation, and has already accepted the thing donated, he can lawfully retain it." Otherwise if in bad or doubtful faith (H. Ap., X, 130). - But if the donation was made through a messenger, when the messenger and donee were still ignorant of the donor's death, the donation certainly is valid (III, 730).

2. If the donee dies, it is more probable that his heirs cannot accept; "because an heir succeeds in the real rights of the deceased, but not in personal ones, such as is the right of accepting a donation. Yet Lessius concedes that, if the heir is the son of the donee, from equity he could accept, since such a mind of the donor is to be presumed" (III, 731).

QUAER. 2. What must be observed with respect to donations made ON ACCOUNT OF DEATH?

Resp. Donation on account of death has this as proper to itself, that ownership of the thing is transferred to the donee neither immediately nor irrevocably; but only under a double condition, namely that the donor die and that he not revoke the donation. Therefore it differs from donation between the living in that it is revocable; and from testament in that the acceptance of the donee is required (H. Ap., X, 134).

In ROMAN Law, likewise in SPANISH Law,¹¹ donation on account of death has force, provided it is made concerning the disposable part, between capable persons, and is confirmed by the death of the donor. It is revoked by the fact itself if the donee dies, nor does it pass to his heirs (III, 741).

In FRENCH and ITALIAN Law, donation on account of death is not admitted. Concerning it those things have force which were said of contracts entered upon without due form (n. 1054).

In AUSTRIAN Law, donation on account of death has force as a contract if it is accepted and declared irrevocable; concerning which a public document must be handed over to the donee. But if it has the conditions of a testament, it has force as an inheritance or legacy.¹²

In GERMAN Law,¹³ donation on account of death is not admitted; but promise of donation on account of death is recognized, that is, a promise of donation made under this condition, that the donee survive the donor; it has force as a last will.

But here it must carefully be noted that not all donations made by occasion of death are donations on account of death. Thus, for example, a donation made irrevocably, even if under the condition of death, for example I give you this thing, if I die in this danger, is truly a donation between the living, since the condition does not depend on the will of the donor. A fortiori, a disposition is to be held as a donation between the living by which a sick man actually and irrevocably donates a thing, whether movable or immovable, to a friend or relatives.

892. • By donation under a mode is understood a donation made with the addition of some burden, to be fulfilled by the donee in its own time, without nevertheless that fulfillment being a sufficiently expressed and properly so-called condition. Now, it is certain that the donee, once such a donation has been accepted, is bound in conscience to observe the mode imposed, and that he is bound to restore proportionately if by his own fault he has not observed the mode.

But, the mode not having been observed, the donation is neither invalidated nor can it be revoked by the donor. Yet one must insist by remedies of law that it be observed.¹ See n. 868. (w) p. 476.

893. • By allective donation here is understood a donation made by the donor for this end, that the donee not indeed be obligated, but nevertheless be excited and enticed to furnish something, for example, a donation made to a girl for eliciting her consent into illicit intercourse. - As regards the value of such a donation, see what was said in n. 834, q. 7°.

894. • By donation on account of a false cause is understood a donation made on account of a cause, whether present or past, which is thought certainly to be present, although in reality it is not present; for example, a donation made to Peter as to a poor man, while he is not poor, or a donation made to Peter as to a poor and upright man, while in reality he is indeed poor, but by no means upright. - As to the value of such a donation, it will be permitted to establish these things:

a) If the principal cause is false, the donation of itself is invalid, and the donee ought to restore the thing donated, unless perhaps it can reasonably be presumed that the donor after the fact is no longer unwilling that the donated things be retained. And thus, in the first example adduced, a donation made to Peter as to a poor man, so that poverty is the principal cause, when poverty is lacking, of itself falls, and therefore the things accepted by Peter must be restored to the giver or at least to others truly poor, unless it were permitted to presume otherwise concerning the will of the donor after the fact (n. 736, q. 5°).

b) If the secondary cause is false, the donation of itself does not seem invalid, but it can be revoked by the donor; but the donee himself, if he was the cause of the error, is bound to disclose the error, unless the donor is so affected that he can be judged not to wish to revoke, even if he knew the error. And thus, in the second example adduced, a donation made to Peter, principally as to a poor man and secondarily as to an upright man, poverty existing but uprightness lacking, of itself does not seem void, but only revocable; but Peter, if he was the cause of the error, namely by pretending that he was upright, while he is by no means upright, ought to disclose the error, unless it is permitted to presume otherwise concerning the will of the donor, as ordinarily happens in the matter of alms, in which poverty alone, but not uprightness, is usually considered as cause or condition (n. 736, q. 5°).

From what has been said it is clear that, for resolving cases of this kind of donation on account of a false cause in practice, one must carefully notice: a) what was the expressed intention of the donor in making the donation, and b) what is, or at least what is rightly presumed to be, his will after the fact. Cf. St. Alphonsus.¹

501. Legal reservation of hereditary goods (wettig voorbehoud) is that part which devolves to the natural heirs by the law itself according to the proportion defined by law. It is opposed to the disposable part or quota (beschikbaar deel), concerning which the owner can dispose at will, while concerning the reserved or legitimate part (voorbehouden of onbeschikbaar deel) he cannot dispose gratuitously, but only by onerous title.

In England, with the exception of the transmission of certain estates, and in the United States of America, generally full liberty of making a testament is in force; but in many regions of Europe it is limited: thus in Italy (a. 805 sq.) and Austria (a. 765 sq.), one half of the inheritance is owed to descendants, one third to ascendants in default of descendants; in Germany (a. 2303), one half of the goods is disposable and the other is reserved to children, parents, and spouse; in Spain, one third part of the goods is disposable, one third part is to be distributed equally among the children, but the last may be freely donated to any of the children, though not to strangers (a. 808 sq.).

But by French-Belgian law (a. 913-914), and Dutch law (a. 960 sq.):

1. The disposable part depends on the number of children: if there is one child, the parents can freely dispose of one half of the goods; if two children survive, they can dispose of one third part; if three or more, the fourth part is disposable. Under the name of children there come also legitimated and adopted children and grandchildren (kleinkinderen) and their descendants, yet in the sense that all those born of one child are counted for only one child, whom they represent.

If natural children legally recognized survive, but not legitimated, a quota part is reserved to them, but smaller than if they were legitimate.

According to Belgian law, they are only heirs of the father and mother (a. 756): to them is given 1/3 of the portion which legitimate children would have obtained, if other legitimate children are present; 1/2 if the deceased has brothers, sisters, or ascendants; 3/4 if he has at least other heirs (a. 757). They do not succeed to the entire inheritance unless no other heir survives (a. 758). - In France, from the law of March 25, 1896, they receive 1/2 of the portion of a legitimate child if others are legitimate; 3/4 if the deceased has brothers, sisters, or ascendants; otherwise the whole inheritance.

2. In default of descendants, if ascendants survive in both lines, paternal and maternal, one half of the goods is reserved to them; if in one line, one fourth part is reserved (a. 915).

3. There is no reservation in favor of collaterals;¹ in practice, however, if poor collaterals complain that several legacies have been made to their excessive detriment, the public authority is wont to reduce these legacies; and rightly: for piety demands that something be left to relatives in necessity, especially brothers and sisters.

¹ It is proper to Swiss law that brothers and sisters are necessary heirs (a. 470-471).

4. To the surviving spouse there is not conceded reservation properly so called, but the right to the usufruct of a certain part of the goods (a. 767); this varies according to different laws.

From the Belgian law of November 20, 1896, a spouse not separated from bed has the right to the usufruct either of the portion of a legitimate child (which does not exceed the fourth part of the goods), if the deceased has children from another marriage; or of the totality, if the deceased does not have heirs except collaterals other than brothers or sisters or their descendants; or of one half of the goods, in other cases. In France, from the law of March 9, 1896, the usufruct of 1/4 part of the goods is attributed to the spouse if legitimate children are present; of 1/2 part if there are other heirs.

It should be noted that donations inter vivos or testamentary donations exceeding the disposable part are not absolutely void, but can be reduced (a. 920) if the reserved heirs or their successors or those having cause from them petition this (a. 921). In this case, first the testamentary dispositions are reduced according to the proportional part of the value; then, if the legacies do not suffice for paying the reserved part, donations are reduced, not indeed according to proportional part, but in chronological order, beginning from the most recent and going back as far as the first (a. 923 sq.).

502. What force does legal reservation have for the forum of conscience? - Resp. Civil law proceeds further than natural law; and since it establishes a matter not sufficiently determined by natural law alone, it in itself obligates in conscience. But it can be asked what kind and what quantity of obligation of conscience it produces. Therefore those who by donations or testaments injure the legal portion of necessary heirs:

1. Do not seem to sin against commutative justice, because the testator disposes of his own thing and the heir only after the death of the testator has a strict right in that thing. The case is excepted in which someone would use unjust and fraudulent means, for example, a fictitious sale, to prevent the necessary heir from prosecuting his right.

2. Generally they sin against legal justice or obedience, since they violate a just law and one almost necessary for the common good, for example, lest legitimate children born of first nuptials afterward, on account of the excessive love of the father toward a second wife and her children, be excluded from the whole inheritance. This sin in itself is light; by accident it can be grave, if the necessary heir were thereby cast into at least relative poverty.

3. Sometimes such a testator does not sin in any way, especially a) if he favors one child for a just cause, namely to procure a greater good or to avoid a greater evil; for example, if only by violating the legal part of the children someone could fulfill an office of piety, charity, or justice, such as providing for the education of an illegitimate child or sustaining parents in grave necessity: for then the natural law prevails. Likewise b) if observance of the law which was enacted for the good of the family would turn to its detriment: for then the law ceases contrariwise, because it becomes harmful; as if, because legal equality were preserved, none of the children could any longer carry on the paternal business or agriculture; or if one son is foreseen shortly to dissipate all things while the brother, to whom more is attributed than the law permits, is deservedly hoped also to provide for the prodigal brother and his children. This can easily occur in our regions, in which the liberty belonging to a prudent father of a family is narrowly restricted.

503. Questions. - I. Whether it is licit to injure the legitimate portions of necessary heirs by donations or legacies for pious causes, for example, foundations?

Resp. This is probably licit, or at least is not unjust, provided the necessary heirs obtain that which belongs to them by the law of nature for honorable sustenance and state. Nevertheless heirs whose legitimate part was injured do not seem to sin if with just means they make a claim before a tribunal, because civil law has the right of determining the legitimate part. For in the case it does not directly declare null a legacy made to the Church (which it would not be able to do), but directly establishes the legitimate portion of the children, from which then indirectly follows the nullity of the other legacy.² It would have to be said otherwise concerning pious donations and legacies made outside the legitimate part, because civil law does not have the right to impede directly or generally all pious donations, just as neither does it have the right to impede the Church's right of possessing goods.

² It should be noted that already formerly under Roman law a probable opinion conceded this; which holds a fortiori now, because the disposable part is much smaller. Besides, many, even older theologians, teach that inofficious donations can probably be reduced to the disposable part.

II. What if someone, from hatred or inordinate affection, wished to leave only the legitimate part to his children; or if without just cause he favors one child from the disposable part?

R. He is bound under grave obligation to put aside hatred or inordinate affection, and he is to be exhorted to leave something more to his children. Hatred and gravely inordinate affection of partiality being set aside, if he favors one child before the others without just cause, such as can be if he merits more by virtue or service, if he has done more, if he seems to be in greater need, for example for sustenance or for study, he does not sin gravely, unless perhaps by accident if for this reason grave hatreds and dissensions arise, and these are not rather to be attributed to the malice and avarice of the heirs than to the father who uses his own right. This is especially true if the father acquired the goods by his own labors; but if he had not acquired them by his own labor, it is better that they be divided equally among all the children, unless there are special circumstances concerning which it was said above. Cf. also n. 502, 3).

III. Whether a testator is bound to provide also for certain heirs who are not necessary?

R. 1. There is a grave obligation that there be left to brothers and sisters that which suffices to relieve their grave want; civil law also recognizes this to some extent. Thus Civil Code, a. 767, modified by Belgian law.

2. There is a light obligation that provision be made for the necessity of other relatives gravely in need.

All these are obligations of piety, obligating under grave or under light obligation according to the degree of necessity and the degree of nearness of kinship; these obligations indirectly affect the goods of the deceased, and therefore pass with them to the heirs.