Freedom of bequest and duty to one's family

A person who is capable of making a will may bequeath his property, both real and personal, to whomsoever he wishes; the legitim or reasonable part is not recognized by modern English law. This, of course, does not do away with the moral obligation of providing for those who have claims on the testator by reason of kindred or other ties. Still, for just cause, the testator may take advantage of the law, and leave nothing to one who otherwise would have been benefited under his will.

If a person dies intestate, his property will be distributed among his next of kin according to the statutes of distribution.

A person may be under a moral obligation of making a will from the command of a lawful superior, or because quarrels and dissensions about his property will be the consequence of his dying intestate.

716. 1. State of the question. By natural law, each one can freely dispose of his goods, unless he has natural heirs for whom he is bound to provide. For parents are bound to give to children who cannot procure the necessities of life for themselves food, clothing, and other necessities, and at the same time to educate them in such a way that they can acquire the means of honorable support. Children likewise must grant an alimentary pension to parents who are now incapable of providing for their own necessities, as will be explained below in the treatise on the obligations of various states.

² Boissonnade, Histoire de la reserve hereditaire, Paris, 1873; Glasson, L'autorite paternelle et le droit de succession des enfants, in the periodical Reforme sociale, 1889, t. II, p. 209; Albert, La liberte de tester, Paris, 1895.

But in many regions, civil law proceeds further, and defines what allotted part of the inheritance is disposable, and what allotted part is to be reserved to natural heirs. Whence the disposable part is that concerning which the owner can dispose gratuitously at will; the reserved part, or legitimate part, is said to be that which is devolved to the natural heirs by the law itself, according to the proportion defined by law; therefore the owner cannot dispose of it gratuitously, but only by onerous title.

Now in England and the United States of America full liberty of making a testament is in force; in certain other regions, e.g., in Italy and Germany, half the goods is disposable, and the other half is reserved; in Spain, a third part of the goods is disposable, - a third part is to be distributed equally among the children, - and the last part can be given freely to any of the children, but not to strangers.¹

¹ On these, see Albert, La liberte de tester, p. 571-651; cf. Brocher, Etude sur la legitime et les reserves, Paris, 1868; Cunot, Des droits de legitime et de reserve, Paris, 1877.

717. 2. On reservation in France.² (A) The extension of reservation: (a) When legitimate descendants survive, the disposable part depends on the number of children: if there is one child, the parents can freely dispose of half the goods; if two children survive, they can dispose of a third part; if three or more, a fourth part is disposable. - By the name of children are understood also grandchildren (petits-fils) and their descendants, yet in this sense, that all posterity arising from one child are counted only as one; thus if Peter had two sons, John and James, and the former died leaving five children after him, these five represent the one John and are held as one in relation to the reserved part.

² Cod. civ., art. 913-930, in Supplem., p. 107*; Planiol, III, n. 3047-3140.

But if natural children legally acknowledged survive, an allotted part must be reserved to them, yet a smaller one than if they were legitimate.³

³ Since the matter is very complex, see recent jurists, e.g., Planiol, n. 3070-3074.

(b) If ascendants survive, descendants being lacking, and indeed in each line, paternal and maternal, half the goods is reserved; but if in one line, a fourth part is reserved.

(c) There is no reservation in favor of collaterals; nevertheless, in practice, if collaterals, otherwise poor, complain that legacies have been made to public or private institutes, to their detriment, public authority is accustomed to reduce these legacies. And rightly so indeed; for charity demands that certain goods be left to relatives, especially brothers or sisters, who are in common necessity.

(d) To the surviving spouse is not granted a reservation properly so called, but a right to the usufruct of a certain part of the goods of the deceased spouse, as will be said below where we treat of successions, n. 729.

718. (B) On the reduction of donations. When donations among the living or testamentary donations exceed the disposable part, they are not absolutely void, but can be reduced, if the reserving heirs or their successors or those having cause from them demand this; first indeed testamentary dispositions are reduced, according to the proportionate part of value; then, if legacies do not suffice for paying the reserved part, donations are reduced, not indeed according to a proportionate part, but in chronological order, beginning from the most recent and ascending backward to the first, if there is need.

N. B. Some say that any donations expended from mere revenues which had not yet been joined to capital are excluded from the law of reservation; but this is by no means admitted by jurisprudence, excepting those things which are not properly gifts, but only presents or alms.¹

¹ Planiol, III, n. 3088, alleging Cass. Jan. 11, 1882; cf. M. Henry, Du legs de la quotite disponible, Paris, 1902.

719. 3. On the social utility of reservation and of the disposable part. With great heat this matter is disputed among jurists and economists, and also among philosophers and theologians, some defending full liberty of making a testament, while others defend legal reservation; we shall briefly weigh the arguments of each school, drawing certain conclusions therefrom.

(A) Full liberty of making a testament, or at least the faculty for parents of disposing of half the goods, whatever the number of children may be, is defended by Le Play and the school of Social Economy founded by him, Baudrillart, P. Leroy-Beaulieu, d'Espinay, Pinard, Cl. Jannet, and many other economists,² with whom certain theologians agree; they defend this opinion by arguments from both the economic and the moral order.

² Le Play, La reforme sociale, Tours, 1887; id., Organisation du travail, 1888; Baudrillart, Les lois de succession en France, in Rev. des Deux-Mondes, April 15, 1872, p. 851; P. Leroy-Beaulieu, in the periodical L'Economiste francais, March 1880; d'Espinay, La liberte de tester et la copropriete familiale, Angers, 1882; Pinard, Les reformes possibles en matiere successorale, in the periodical La reforme sociale, Aug. 1, 1886, p. 127; Cl. Jannet, Le Socialisme d'Etat, Paris, 1890, p. 491-538; L. Brun, Introd. a l'Etude du droit, Paris, 1887, p. 207-234; - Albert lists others, op. cit., p. 715-727.

720. (a) Legal reservation, as it exists in France, induces the dismemberment of inheritances, with great detriment to families and to society itself; for since, where many children are present, the reserved part is the principal one, and must be divided equally among all the children, great possessions cannot long be preserved in the same family, unless the number of posterity is voluntarily limited; moreover, since from jurisprudence each of the children has a right to a portion not only of the same price, but also of the same nature, estates generally must be so divided that their cultivation becomes altogether difficult, while industrial or commercial institutes, since they cannot be divided, are often sold at a lower price and pass into alien hands, so that the children must begin another business; this indeed harms the progress of commerce or industry not a little. - Moreover, when the matter especially concerns small inheritances, the expenses which arise from succession are so onerous that they almost equal the very price of the inheritance; and thus children, especially minors, are reduced to extreme poverty at the time when they are deprived of their father.¹

¹ You have examples in Le Play, Reforme sociale, t. I, p. 265; Albert, p. 683-686. - "From 1879 to 1883... the average of costs per hundred francs of price had been 146 fr. 72 in sales with a maximum product of 500 fr., 57 fr. 13 in those whose price varied from 501 to 1000 fr., and 31 fr. 10 in the sales of immovables adjudicated for 1000 to 2000 fr." (Rapport du Garde des sceaux, in Officiel, Saturday, May 6, 1893, p. 2300.) Cf. Enquete sur l'etat des familles et l'application des lois de succession, by the Society of Social Economy, Paris.

721. (b) The effects in the moral order are worse: 1. voluntary sterility of spouses; there is no other nation in Europe in which the number of those born is so small as in France; but the chief cause of so great an evil must be taken from the equal and forced partition of inheritances; for parents fear lest, if they have begotten many children, the dominions possessed by them be divided into little parts, and posterity be reduced to a mediocre or lowest state of fortune; and therefore they use means, generally illegitimate, for limiting the procreation of offspring; this is established both from open declarations of fathers of families, - and from the fact that among the poor and workers, who lack possessions, offspring is more numerous, - and from comparison of France with other regions where liberty of making a testament is fuller.²

² Cf. Albert, op. cit., p. 657-667; Cheysson, Discours sur la depopulation de la France, in the periodical Reforme sociale, June 1, 1898, p. 858; Baugas, L'affaiblissement de la natalite en France, in Revue Cath. des Inst. et du Droit, Jan. 1895, p. 54; A. des Cilleuls, Les lois successorales et la population; id., La population, Paris, 1902, p. 124-127. To the matter, Leroy-Beaulieu, L'Economiste francais, March 1880: "They wished to prevent the bourgeois, like the peasant, from doing what was formerly called making an elder, that is, favoring one of the children; they have succeeded only in part. One can always make an elder by suppressing the younger children: it is to this fine result that a crowd of French families apply their ingenuity." - Cf. de Nadaillac, Un cri d'alarme, in Le Correspondant, April 25, 1894, p. 250-264.

2. Marriages on account of money, and not on account of mutual love, are often entered; indeed from this necessity of partitioning the inheritance there has grown up the custom of providing daughters with dowries, so that they may more easily marry; for since the possessions of parents are divided equally, compensation is sought in the marriage contract, insofar namely as young men seek to marry a richer girl, so that the part of the goods which must be left to brothers may be supplied through the dowry of the spouse; and thus it not rarely happens that the goods of the betrothed woman rather than her moral endowments are sought after; from this arise quarrels and divorces.

3. The authority of parents is likewise diminished by this; for since children of families securely expect a fat inheritance, they often become improvident, lazy, luxurious; besides, parents lack sufficient authority for breaking their obstinacy and inciting them to labor strenuously, because they are unable to disinherit them. Hence reverence or obedience toward parents decreases day by day; indeed sometimes children desire the death of their parents, so that they may more quickly and freely enjoy the paternal inheritance. But on the other hand, where posterity is not able to expect so securely the goods of ascendants, they are incited to labor strenuously so that they may provide for themselves, - not rarely they pass over to foreign nations so that they may increase their resources, - and they pursue their parents with due honor, so that they may be able to obtain part of the goods.

722. (B) On the other hand, many jurists approve legal reservation as it lies in the Civil Code:¹ -

¹ Thus, among others, Batbie, H. Ameline, Wolowski, whose arguments can be read in the little work La liberte de tester, discussion sur le regime des successions, Paris, 1892; Boissonnade, op. cit.; Cornulier-Luciniere, Etudes sur le droit de tester, 7th ed., Orleans, 1880.

(a) For it more favors the equality of citizens, and more effectively prevents envies and dissensions, which would be more frequent among brothers if parents were permitted to disinherit one, and to heap gifts upon another. For parents do not always favor sons who are endowed with greater industry or virtue, but rather those who strive to capture benevolence by flattery and blandishments.

(b) Besides, it is of the greatest importance to increase the number of those possessing certain goods; those who have nothing of their own easily slip into socialism, while possessors of lands, even of small value, strenuously defend the right of property; wherefore, among farmers, there are very few who adhere to collectivism, while workers who live in cities and have nothing as their own generally eagerly embrace the theories of the socialists.

723. (c) Moreover, when lands are divided among many, they are cultivated with greater care and industry, and thus are made more fruitful, as experience establishes; for in France, where this partition is in force, fields are cultivated more diligently and fruitfully than in England, where very vast estates have been preserved in the same family for a long time. - Nor should it be said that on small inheritances the use of machines is impossible, and thus greater expenses are incurred; for today associations of farmers (syndicats agricoles) are easily formed, by whose help machines and instruments can be procured for cultivating fields without great expenses.²

² A. de Foville learnedly shows that the division of lands among many is very useful, Le Morcellement, Paris, 1885.

(d) But the voluntary sterility of spouses must not be attributed solely, nor chiefly, to civil law, since in Belgium and other regions, where the same prescriptions are in force, numerous offspring are begotten, - but to unbridled luxury, love of pleasures, and an effeminate education which too often prevails among the rich. Wherefore the law concerning the partition of goods would be changed in vain, unless first morals were reformed and boys were instructed by a more manly discipline.

724. (C) Practical conclusions. (a) We indeed think that liberty of making a testament is restricted more than is just in France, since in reality it is less than in many other regions; but it is by no means established that the civil law in this matter is altogether unjust, as some contend: for the evils which are said to follow from it must not be imputed solely, nor perhaps chiefly, to it, but to other causes. Therefore the French law should be so tempered that, in every case, parents may be able to dispose of half the goods, - and more easily divide their wealth among the children while they are living, without being compelled to give goods of the same nature to each one, - and that inheritances devolved to minors may be divided among them according to equity without so many and such great expenses.¹ - But meanwhile, by a manly education let the inclinations of children toward luxury and pleasures be weakened and corrected.

¹ Cl. Jannet sets these things forth at length, loc. cit. - The Spanish system (above, n. 716) is more pleasing to others, and in reality seems altogether consonant with equity, insofar as it happily reconciles the rights of parents and of children; on this see Glasson, l. c.

725. (b) In certain parts of France, especially in the southern region, the usage has prevailed of giving more to one of the children, especially the firstborn, than the law itself permits, so that in this way better provision may be made for the preservation and decorum of families.² Those who act thus in good faith are not to be disturbed, provided the things which suffice for honorable support are furnished to the other children; for the French law, as restricting the natural rights of parents, does not bind strictly in conscience except after the sentence of the judge. This indeed is more evident when parents have acquired the greater part of their goods by their own labor.

² A. de Brandt, Droits et coutumes des populations rurales de la France en matiere successorale, translated from German by E. Regnier, Paris, 1901.

Besides, heirs who think that they have been injured have the right in conscience to have recourse to the tribunal, and all must acquiesce in the sentence of the judge.

But if parents, because of prejudices or hatred, deprived one or some of the children of the legitimate part, they would certainly sin against charity; yet more probably not against justice, before the sentence of the judge, provided they have left to them the things required for honorable support according to their state; this is especially true when testators by their own industry have greatly increased the family good: for then they can dispose of it more freely.

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.

I ASSERT first, that all those, and only those, can make a testament who, having the use of reason, have a peculium, unless they are prohibited by law. They are prohibited, first, the Under-age. Second, sons under paternal power, except as regards castrense, or quasi-castrense goods: likewise as regards adventitious goods, which they have acquired after entering the clerical state, except for pious causes with the father's consent. Third, those intestable by law on account of the crime of a deed l. Is cui. Et l. cum lege, ff. Qui testam. et C. Falcidia, de poenis in 6. and other laws. Fourth, Religious, except by concession of the supreme Pontiff for pious causes. Fifth, those condemned to natural or civil death, and to perpetual prisons, except for pious causes. All which the law proves and declares more fully, as Sylvester verb. Testam. 1. quaest. 3. et 4. Molina T. 1. disp. 136. ad 138. et Less. l. 2. cap. 19. dub. 4.

ALTHOUGH, speaking per se (where the paying of due debts, or the avoidance of litiis, or scandals, does not require it) no one is held under grave obligation to make a testament; yet those sin gravely against justice who prevent anyone from freely making a testament, or from changing, if he wishes, a testament already made, and who try to restore to those to whom the goods of the deceased would have come. And in the external forum, besides other penalties, they are deprived of every emolument of the goods of such a deceased person, according to l. 1. et 2. ff. si quis aliquem Testam. prohib. l. 2. C. eodem titulo, Leg. Testamenti, C. de inoff. Testam. as Molina proves disp. 135.

I ASSERT second: Heirs, or legatees, cannot first be instituted as heretics, apostates, and those adhering to them Leg. fin. Cod. de haeret. et Leg. hi, qui sanctum, Cod. de Apost. Second, those who persecute Cardinals, and strike or capture them, C. felicis, ne panis in 6. Third, the Intestable on account of crime, as above. Fourth, the Friars Minor, and not a few other religious, who nevertheless can receive Legacies under the title of alms, as Clement V. declares in Exivi de Paradiso.

THE inheritance can also be left in their favor, that it be sold by executors and the price given to them, as Less. teaches l. 2. cap. 19. dub. 5.

I ASSERT third, that the necessary heirs are the sons, grandsons, etc., and in default of these the ascendants; the Father, and Mother, and when these fail the Grandfather, Great-grandfather, as Molina declares disp. 159.

A distinction must be made concerning illegitimate sons: for Natural children, who are from simple fornication, can be instituted heirs, even universal heirs, if they themselves have no legitimate offspring, Leg. licet Cod. de fil. natur. nay, they even succeed to their mother ab intestato in full if she lacks legitimate children; but if she has legitimate ones, they succeed equally with them Leg. si qua illustris, Cod. ad Senatusconsult. Orficianum. To the father, however, if he lacks legitimate children, they do not succeed ab intestato except in two unciae, that is, in the sixth part of the goods, according to Leg. licet, Cod. de filiis natur. Yet even those having legitimate sons can leave them an Uncia, that is, a twelfth part of the goods.

BUT Spurii, who are from a union condemned by the laws, cannot receive anything from their father leg. Licet Cod. de natur. lib. et Novella 74. cap. 6.

Yet the Spurius can receive aliments, and his parents owe them, if he has them from no other source cap. cum haberet de eo, qui duxit in matrim. notwithstanding the civil law Leg. ex complexu Cod. de Incest. nupt. for it was rightly derogated from by the canons. Whence it follows that to a spurious daughter a dowry is owed, which takes the place of aliments, even if the parent be a priest. So Nauar. in C. Non liceat, §. 19. Couar. ibi, num. 15. Less. lib. 2. cap. 19. dub. 6. Nay, Henriquez cap. 20. num. 4. thinks that these aliments can be left to spurious children even if they are not in need, which Less. does not disapprove num. 69. But the Mother is bound, if she can, to nourish the son during the first triennium, at the end of which the father is bound, until the son can do so by his own industry, l. Haec filium, Cod. de patr. potestate, et C. fin. de convers. infid. as Couar. teaches num. 19. Molina disp. 169. Lessius num. 70. Tannerus disput. 4. quaest. 7. dubio 11.

YOU ASK, what Substitution is, and that it is fourfold.

IT is answered, with Tannerus n. 314. disp. 4. quaest. 7. that it is a vocation, made in a last will, of one or more into the place of another or others, to some thing, which generically is twofold, Direct, and Indirect, according to Molina t. 1. disp. 182.

EACH of these again is sixfold, namely vulgar, pupillary, exemplary, fideicommissary, reciprocal, and compendious, of which the first four are simple; the last two are composed of several.

VULGAR substitution is that by which the testator substitutes to the heir, whether instituted by himself or succeeding ab intestato, any other person not prohibited by law, in the case that he will not, or cannot, be heir.

PUPILLARY substitution is that by which he substitutes someone to an under-age child placed under his power, if that child should die before puberty; whence it comes about that not only the goods of the pupil left by the father, but also other things, come to the substitute; according to §. Igitur, Instit. de pupil. substit.

EXEMPLARY substitution (as if invented on the pattern of the pupillary) is that by which substitution is made to a son who is demented, or deaf and mute at once, or a prodigal; which therefore also contains the vulgar one, should it happen that the son die before the testator. But if the son be under age, the same substitution will also be pupillary, etc.

FIDEICOMMISSARY substitution is that by which the heir is burdened to restore the whole inheritance, or a certain portion of it, to another, who is called the fideicommissary; and since it is a substitution introduced, it can also be made by Codicil.

RECIPROCAL substitution is that by which those instituted are substituted to one another in turn; as if you were to say: I institute as heirs Peter and John, and I substitute these to each other.

COMPENDIOUS substitution is that which contains several substitutions according to diverse times, and ages, or conditions of those who are substituted.

YOU ASK what is called the legitimate portion, which ought always to be Salic for heirs legitimately to be instituted.

BY the Caesarean law it is had that, if the testator has four sons, or fewer, a third part of the goods be divided equally among them; but if there are more, the half part of the goods be divided. See Molina disp. 158. With respect, however, to the ascendants, the Father and Mother, it is a third part Auth. de triente, et semisse, §. 1. et gloss. ibi.

BUT the legitimate portion ought to be left free leg. quoniam in prioribus, Cod. de inofficioso testam. See Molina t. 1. disput. 177. Fagund. l. 6. cap. 13. num. 19.

NOTE that in default of ascendants and descendants, even if the testator has collateral kinsmen and brothers, it is free for him to institute as heir even an extraneous person §. 1. Instit. de inoffi. test. lib. fratres, Cod. eodem.

Yet if he leave the inheritance to an infamous person, the brother will be able to act for the rescission of the testament, provided he be not merely uterine, etc., according to the same laws.

But to this testator, when free, poor kinsmen are commended, on whom he may have mercy, and that he not institute unfit heirs, whom Sylvest. enumerates v. haereditas 3. quaest. 1. et alii Summistae.

In these Sylvest. enumerates the excommunicate, but wrongly, as Suar. proves 3. p. t. 5. disp. 15. sect. 9. et Ioan. Baptist. Villalob. l. com. op. v. Excommunicatio. Heretics, however, and others expressly designated by the law, are excepted, as Fagund. notes loc. cit. num. 21.

NOTE that all who are not prohibited by law can be executors of testaments. It happened, however, that one of ours, dying, when he had been left by his Father to assist his demented brother, with the faculty of naming another at death, named another; it was asked whether he had done this licitly.

IT IS ANSWERED affirmatively, because, although the Friars Minor cannot become executors of last wills, according to Clem. Exivi, §. Proinde iur. Sanctus, de verb. signif. they can nevertheless name executors with the license of a superior. So Rodriq. t. 3. qq. Reg. quaest. 70. art. 2. et in summa, p. 2. cap. 70. Vecchis Praxi, disp. 8. dub. 13. Couar. in C. Tua nos, num. 1. de testam. Sanch. l. 6. Moral. cap. 11. Diana p. 8. tract. 5. resol. 13. where he enumerates 25 Doctors in this opinion. Nay, Bassaeus our own adds to them that it is probable that the same Friars Minor, and a fortiori the others, can be constituted, with the license of their Superiors, Commissaries for making a testament in the name of the one committing it.

IN explanation of the decree of Clement I say that there the matter concerns properties, and therefore the friars are excluded from executing it by their own authority, but not by the authority of another, the testator's, for the doing of the work. Thus I explain D. Bonav. epist. ad Provinciales.

NOTE that in all cases in which parents and children can disinherit one another, they can also deny one another a dowry and support, extreme necessity set aside, as the Doctors commonly teach. Azor. tom. 1. lib. 2. cap. 5. question 6. Molina de primog. lib. 2. cap. 16. Sanchez lib. 2. Decal. cap. 24. and lib. 4. de matrim. d. 26. Molina Theol. Tom. 1. de Iust. d. 176. Menoch. lib. 4. de praesumpt. 189. Spino in spec. testam. glossa 20. num. 66. Fagundez lib. 4. cap. 3. Therefore, once the cases in which children may be disinherited are seen, it will be clear when support may be denied; you will always except extreme necessity.

The FIRST case is brought forward if a daughter marries before twenty-five years of age without the consent of her parents, or sins against her own body, or chooses a disgraceful life. Authent. ut cum de appellat. cognosc. §. Cansas, as the Doctors commonly expound, as cited by Fagundez cap. 3. num. 8. who nevertheless held that the Authentic speaks there of her who marries before twenty-five years of age.

This cause, however, seems abrogated by canon law to protect the liberty of marriage. So St. Thomas 2. 2. question 124. article 5. and others cited by Fagundez cap. 3. num. 3. Sanchez lib. 4. de matrim. d. 65.

It is nevertheless probable that it has not been abrogated, as Fagundez writes num. 5.; it does not, however, hold for children, as Menochius notes cons. 3. Sanchez lib. 4. de matr. d. 24. Barbosa on l. 1. 4. part. num. 31. ff. solut. matrim.

The SECOND case is, if he lays violent hands on his father or mother: Authent. Ut cum de Appellat. cognosc. §. causas autem: Understand with mortal fault; otherwise if he did it in defense of himself or of his country.

The THIRD case is, if he inflicts grave insults, especially in a public place, or defames his parents. See Fagundez num. 30. who cites only Hispanic law.

The FOURTH case, if against the will of their parents they play the mime and join themselves to actors and persist in that profession, provided nevertheless their parents were not of the same profession. Likewise if a daughter or son becomes a malefactor and lives familiarly with them; understand this copulatively, as Molina expounds Tom. 1. Inst. tract. 2. d. 176. Fagundez num. 31.

The FIFTH case, if they attempt to remove their parents by poison, or give favor, counsel or aid to others doing so. So Covarruvias cap. Raynutius, num. 13. Molina d. 171.

The SIXTH, if they have dealings with a stepmother, or with a concubine reared in the house. So Covarruvias and Molina, and Fagundez num. 34.

The SEVENTH, if he composed a defamatory pamphlet against his father or mother, and was their informer.

The EIGHTH, if the parent is in prison, and the son, though able, refused to become surety when requested by him; Authent. ut Cum, de Appellat.

The NINTH case, if he prevents a parent from making a will. See Fagundez num. 37.

The TENTH, if the other parent falls into madness, and the children deny help or neglect the care. Wherefore if an outsider, seeing the children, grandchildren, and others neglect, and moved by pity, takes the care, with protestation made and the heirs notified in writing, if these neglect and he carries the care through to the end, the whole inheritance is assigned to him by the Judge. Auth. ut Cum de Appellat. cognosc. §. si quis de praedictis. and in Auth. Liberti C. de Episcopali audientia.