Legacies

To be valid in English law a will must be made according to the provisions of the Wills Act (1 Vict. c. 26, sec. 9), which enacted “ that no will shall be valid unless it shall be in writing and . . . signed at the foot or end thereof by the testator or by some other person in his presence, and by his direction, and such signature shall be made, or acknowledged, by the testator in the presence of two or more witnesses, present at the same time, and such witnesses shall attest and shall subscribe the will in the presence of the testator, but no form of attestation shall be necessary.”

By section 11 of the same Act an exception to the rule that a will must be in writing is allowed in the case of any soldier, being in actual military service, or any mariner or seaman, being at sea. These may make a valid nuncupative will of their personal estate by word of mouth, even if they be minors.

We saw above that it is a disputed point among theologians whether an informal will is valid in the internal forum of conscience, though it be invalid in law. Probably it is valid if it express the intentions of the testator, until a party interested moves to have it set aside. All parties must stand by the decision of the court. A codicil, according to the terminology of modern English law, is a testamentary instrument altering or modifying a will. It requires for its validity the same formalities as does a will, and it may take effect without a will, if no will be forthcoming. A codicil to a particular will, or which refers to the provisions of the will, republishes the will and makes it speak as of the date of the codicil. But a testamentary instrument which is not described as a codicil to a will, and does not refer to a will, has not the effect of republishing the will.

A legacy is a gift in the form of a direction by testamentary instrument that the legal personal representative of the testator shall pay, transfer, or provide some money or thing to the recipient or legatee. The legatee derives his legacy from the executor, not immediately from the testator.

Anyone may bea legatee. A legacy bequeathed to a creditor of the testator is presumed to be in payment of the testator’s debt, but the courts look with disfavour on this doctrine, and are quick to discover reasons for setting it aside. A legacy to an infant may be paid to him if the testator so direct; otherwise the legacy must be retained until the infant attains the age of twenty-one, or paid to his testamentary guardian, or paid into court.

A legacy may be given on condition, either precedent or subsequent. Conditions against change of religion are valid in English law.

A legacy may fail from invalidity of the instrument conferring it, from uncertainty or vagueness of the terms of the bequest, or uncertainty of the person designated; from insolvency of the testator’s estate; from the testator having disposed of the object in his lifetime if the legacy be specific; or from his having paid the legacy in his lifetime; and from the non-fulfilment of a condition on which the legacy was given. ‘The legacy also lapses on the death of the legatee in the testator’s lifetime.

If a legatee has been paid, and the estate subsequently proves to be insufficient either from the discovery of further debts or the loss of assets, he may be compelled to refund his legacy in favour of creditors, and similarly a residuary legatee may be compelled to refund in favour of general legatees.

Legacies ordinarily become due on the death of the testator, but they are not payable for a year, that period being allowed executors in order to collect the assets and to pay the debts.

To secure the safety of trusts and bequests to Catholic objects, attention must be paid to various provisions of English law. The rule against perpetuities is designed to prevent property from being tied up permanently, and to obtain this end it requires that every use or trust must be so limited as necessarily to vest within a life or lives in being and a further period of twenty-one years. A tolerably large class of objects technically called ‘ charitable’ has, however, been exempted from this rule. Among these objects are the promotion of any form of lawful religion, the relief of the aged and poor, the maintenance of the sick, the establishment of free schools, and others of a similar kind. Such trusts and bequests as English law considers to be “ charitable ” are therefore upheld, though they may infringe the rule against perpetuities. According to the English penal laws, bequests for prayers and Masses for the dead were void as being bequests for ‘‘ superstitious uses,” and trusts and bequests for the benefit of religious communities of men ‘‘ bound by monastic or religious vows ”’ were also void, but these relics of penal times have now been abolished. ‘The Irish courts hold bequests for Masses to be for “ pious uses ” and not void, but subject to the rule against perpetuities as not being “‘ charitable ” in the technical sense. Trusts and bequests of land or of money to be laid out on the purchase of land are also subject to the Mortmain Acts.

These legal provisions do not bind the conscience with regard to legacies left to Catholic pious causes, nor is a Catholic justified in invoking them to make a pious legacy void for his own gain, but they should be known so that property left for Catholic purposes may be expended in accordance with the will and intention of the testator or donor (Can. 2348).

Wills and bequests for pious purposes among Catholics are governed by canon law, which requires nothing more than certain proof of the intention of the testator in order to make a testamentary disposition of property valid. It follows from this that bequests to pious causes contained in an informal will are valid, if there is morally certain evidence that it was the intention of the testator to make them. This doctrine has been frequently confirmed by answers of the Roman Congregations to questions proposed to them (Can. 1560, SEC. 43 1513, SEC. 2).

I. Notion. A legacy is a clause by which a testator bequeaths some particular thing to someone. The very thing thus bequeathed is also called a legacy.

II. Rights of a legatee. Whether a legatee acquires from a testament a right in the thing, or a right to the thing, depends on law. Moreover, as regards the rights and burdens of a legatee, the law of one's country should be consulted. Besides these things, observe:

1. A legacy left to determinate girls so that they may marry can also be given to them so that they may become religious, unless the intention of the testator is otherwise clear (St. Alphonsus, III, 930). Thus the Sacred Congregation of Bishops and Regulars.¹ The reason is taken from the fact that the testator is presumed to have consented implicitly. The contrary is commonly to be said concerning a legacy left to indeterminate girls so that they may marry; "for such testators often and piously intend thus to provide only for girls wishing to marry, lest they be exposed to the danger of prostitution" (St. Alphonsus, l.c.).

2. A legacy left to indeterminate nuns can also be given to women religious who profess simple vows, provided their institutes have been approved by the Holy See, they emit perpetual vows, and the testator has not expressly established that the legacy should come only to those professed of solemn vows. Thus Pius IX by decree of the Sacred Congregation of Bishops and Regulars.²

3. A legacy left to orphans can, rather probably, be given to those who have parents by whom they cannot be supported. The reason is that it is sufficiently probable that the testator implicitly consented (St. Alphonsus, III, 930, doubt II).

¹ February 25, 1812.

² November 12, 1847; cf. Aertnys-Damen I, n. 702.

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.

What are testament, codicil, legacy, fideicommissum? Testament, which according to the etymology of the name is the same as a testification of the mind, according to the thing signified is: A lawful declaration of the will concerning what someone wishes to be done after death concerning his things, with the direct institution of an heir. So according to Roman Law. - A lawful declaration of the will, i.e., a legitimate disposition of the will, and one congruent with law. Therefore a testament properly is not a contract, but an act approaching donation. Concerning what someone wishes to be done after death; for a testament is not only made on account of death, but also first acquires its force through the death of the testator, according to that saying of the Apostle to the Hebrews 9:16, 17: Where there is a testament, the death of the testator must intervene. For a testament is confirmed among the dead; otherwise it is not yet valid while he who has testified lives. The faculty of making a testament is from the law of nature itself; otherwise there would no longer be any care for preserving and increasing goods acquired by one's own labor or received from another, and for rendering them stably fruitful.

Gal. 4:7; Gen. 25:5; Job 42:15. Cf. n. 1042. - With the institution of an heir; for by this a testament differs from other last wills, namely from a codicil, legacy, and fideicommissum, in which no heir is per se and directly instituted. - Inst. 1. 2. t. 10; L. 919. A codicil, or little codex, is the supreme will of the deceased, less solemn, outside a testament, concerning what someone wishes to be done after his death, without the direct institution or nomination of an heir to whom the inheritance is immediately owed, so that, apart from the institution of an heir, the testator may be able to dispose of his goods in other ways, e.g., by committing legacies to the heir, or fideicommissa, etc. C. A. 553. But a codicillary clause is a clause inserted into a testament, by which it is declared that if the testament is not valid because of some defect, nevertheless it ought to be valid by force of the codicil. For a codicil five witnesses sufficed, even not summoned, and even women. - L. 919 ff.; Inst. 1. 2. t. 25. A legacy is a certain donation left by the deceased in a testament, and to be furnished by the heir. L. Legatum 36 de Legatis etc. Dig. A donation of a certain kind, for properly it is not a donation, since it is not transacted immediately between the giver and the acceptor. To be furnished by the heir; for a legacy is a certain particular law spoken to the heir, and therefore it is called a legacy: which is from lego, whence lex is derived. To be furnished by the heir, namely after the death of the testator. Left by the deceased to the legatee, to whom therefore the ownership of the thing passes immediately from the testator, although its possession is first with the heir, and the thing must be handed over by the testamentary heir. Inst. 1. 2. t. 20; C. A. 535; C. B. 1939. Fideicommissum is so called because the testator commits his supreme will to the faith of the first instituted heir, so that he afterward gives back the inheritance, either whole or in part, to another. Hence a fideicommissum is a mediate substitution of an heir; mediate, namely, of another after the first. At least two grades of succession must be instituted in order to have it, but the institution can also be of a second and further heir. C. I. 899; C. G. 896; C. A. 608, 609; C. B. 2100. But immediate substitution is had when someone names an heir in such a way that, if he cannot or will not enter upon the inheritance, another is heir in place of the first, who is instituted immediately by the testator himself, and not, by mediation of the prior one, from whom he receives the inheritance, as in mediate substitution. Mediate, indirect substitution is called fideicommissary substitution. Immediate and direct substitution is called vulgar substitution. C. I. 895; C. G. 898; C. A. 604; C. B. 2096, 2097; C. L. 1858 ff., 1866 ff. A fideicommissary institution is distinguished from a fiduciary institution insofar as in the former the restitution of the inheritance is committed to the faith of the heir openly, or in the testament itself; in the latter, secretly, or privately. Inst. 1. 2, tt. 15, 16, 23, 24. According to C. I. 759, "a testament is a revocable act, by which someone, according to the rules established by law, disposes, for the time when he will have ceased to live, of all his substances, or part of them, in favor of one or more persons." Almost the same according to C. G. 895; C. H. 667, 668, 764; C. L. 1739, 1794, 1839. - Hence the institution of an heir is not necessary, and the distinction between testament and codicil has been removed. It is otherwise, however, according to C. A. 552, 553; C. B. 1937, 1939. Properly, an heir is one who is instituted in succession to the whole patrimony, or to a quota part of it; not if only some particular object is left to him, C. B. 2087. Likewise mediate, or fideicommissary, substitution has been taken away, C. I. 899, 900; C. G. 896; with a certain determined case excepted according to C. G.

Whether a testamentary disposition under a condition and to a day is valid? Resp. A testamentary disposition can be made under a condition. C. I. 848; C. G. 1040; C. H. 790; C. A. 695; C. He. 482; Inst. 1. 2. t. 14. § 9. - Impossible conditions, or those contrary to good morals, or contrary to the laws, are regarded as not attached. C. I. 849; C. G. 900; C. H. 792; C. L. 1743, 1745; Inst. 1. 2. t. 14. § 10. Cf. C. A. 696-699, 712; L. 930. - According to C. He. 482, immoral or illicit burdens and conditions render the disposition null. Burdens and conditions without sense or merely vexatious for third parties are regarded as not attached. According to C. L. 1746, a cause contrary to law produces the nullity of the disposition. If the condition is one of not doing something, security must be furnished by the heir. C. I. 855. And this holds for an inheritance and for a legacy. - If the condition is suspensive, i.e., when the validity of the testament depends upon fulfillment of the attached condition, the disposition is null if the heir dies before its verification.

But if the condition is resolutory, i.e., when the execution of the testament is suspended until the condition obtains its effect, but by no means the value of the testament, then the heir or legatee acquires a right before the fulfillment of the condition itself, a right to be transmitted to his own heirs even before the condition has been fulfilled, provided it is fulfilled. C. I. 853, 854; C. G. 1041; C. H. 759, 799. Cf. C. A. 701 ff.; C. L. 1822 ff. No account is taken of a day added to the institution of an heir, by universal title, from which day he ought to begin or cease, C. I. 851; C. L. 1747; Inst. 1. 2. t. 14. § 9. Cf. 1025. A disposition by universal or particular title is null under the condition that someone call another as heir or legatee if he himself is called by that other. C. I. 852; C. H. 794; cf. C. A. 543; C. L. 1509. Contrary to law, according to C. I. 850; C. H. 793, is a condition which prevents nuptials, whether first or subsequent; unless it concerns some pension, habitation, use, or usufruct to be furnished during celibacy or widowhood; and likewise unless the condition of preserving widowhood for obtaining the inheritance has been placed by the spouse upon the surviving spouse. - According to C. A. 700, the condition likewise of celibacy is regarded as not attached.

The condition of widowhood is permitted, however, to a surviving spouse having children. So also according to C. L. 1808. By Roman Law if that condition is imposed on a widow, it is valid, by whomever it is imposed. Auth. Cui relictum C. de Ind. vid. toll. But a legacy left to a girl so that she not marry is owed to her even if she marries. For that condition is invalidated by law, because it is greatly in the interest of the republic that offspring be increased. L. Quoties 22 ff. de Cond. et demonstr.; L. Ambiguitates 2 C. de Ind. vid. toll. But by Canon Law both conditions, of widowhood and of celibacy, seem to have to be sustained, whether imposed by a spouse or by another person, whether it concerns a prestation or another disposition, on account of the honesty of the state of widowhood and the greater perfection of virginity. - L. 930 dub. 7; Laymann de Testam. c. 10. n. 13.

Note: An heir who is also a legatee can renounce the inheritance and accept the legacy, and conversely. But he cannot accept part of the legacy and renounce another part, or accept a legacy affected by no burden and renounce another burdened one. C. L. 183. Cf. L. 4, 5 de Legatis et fideicommissis ff. - If a legacy is under a condition, since the condition suspends the disposition, and the legatee, and the same is true of the heir, dies before the condition is fulfilled, the legacy ceases, nor is his right transmitted to the heirs. C. I. 853. If the legacy is under a mode, the legacy is at once acquired by the legatee. Hence, if the legatee after the death of the testator, before receiving the legacy or before fulfilling the mode, dies, his right passes to the heirs, provided the mode can be fulfilled equally by them. But the legacy is owed, although he does not fulfill the mode, if this does not stand through him. Cf. C. B. 2192 ff. - A legacy to a day, or to be paid at a future time, is not owed before the established time. Meanwhile the legatee has a right to it, which right, if he dies before the established day, he transmits to his own heirs. C. B. 2177. A testamentary disposition which leaves the quantity of the legacy altogether to the judgment of the heir or of a third party is null, except remunerative legacies for services shown to the testator in the last infirmity. C. I. 835.

A legacy must be fulfilled according to its proper form. C. H. 386; L. 936. "When the ox which was bequeathed is dead, neither the hide nor the flesh is owed." L. 49 de Legatis etc. ff. C. B. 2147 ff., 2162 ff.; Inst. 1. 2. t. 20. § 29 ff. "If a father in his testament has ordered the heir to give so many gold pieces to his daughter when she has married; if the daughter is married when the testament is made, but while the father is absent and ignorant, nevertheless the legacy is owed: for if the father was not ignorant of this, he seems to have thought of other nuptials." L. 45 de Legatis et fideicommissis ff. "What has been bequeathed thus: Let my heir, when he dies, give ten to Lucius Titius, since the legacy is to an uncertain day, does not pertain to the heirs of the legatee if he has died while the heir is living." L. 12 de Legatis et fideicommissis ff. "If a building has been placed upon areas that have been bequeathed after the testament was made, both will be owed: both the soil and the surface." L. 39 de Leg. et fideic. Dig. Cf. also L. 10 e.t. "If someone has bequeathed ten amphorae from that cask: even if not ten, but fewer, can be found, the legacy is not extinguished; but he receives only that which is found." L. 8 de Leg. et fideic. Dig. "If it has been bequeathed thus: Lucius Titius my heir is condemned to give Tithasus five gold pieces; then in another place thus: Publius Maevius my heir is condemned to give Tithasus five gold pieces; unless Titius has shown that the legacy was left by Publius for the sake of taking it away, he will receive five gold pieces from each." L. 44 de Leg. et fideic. Dig. When a testament has been rescinded, pious legacies recorded in it must still be paid, if the will of the testator concerning them is certain.

Who can bequeath, and to whom? - Whoever can testate can bequeath. But it is lawful to bequeath to those who can be instituted heirs, and to those who can receive a donation. And thus by Canon Law some modest thing can be bequeathed to Convents of Friars Minor, and to professed members and formed Coadjutors of the Society of Jesus, although neither, from their own Constitutions, can be instituted heirs. Clem. I. § Cupientes de Verb. sign. According to C. I. 382, nothing prevents imposing some burden on heirs in favor of those who are to be born, e.g., a thousand annual scudi for dowering girls. C. B. 2177, 2178, 2180; C. H. 484; Inst. 1. 1. t. 20. § 20 ff.; S. C. EE. et RR., March 26, 1677; June 20, 1686; Lugo Resp. Mor. 1. 4. d. 5.

What things can be bequeathed; what enduring force do bequeathed things have? It is peculiar to legacies that not only one's own thing, but also another's thing can be bequeathed, namely one which the testator knew to be another's; otherwise the legacy is not valid. Hence the heir is bound to buy the thing from its owner and hand it over to the legatee, or to hand over its just price to him. Thus according to C. I. 837, 838; C. H. 861, 862; C. A. 662; Inst. 1. 2. t. 20. § 4. But a legacy of another's thing according to C. G. 1021 will be null, whether the testator was ignorant or knew that the thing was another's.

Cf. C. B. 2169, 2170; C. L. 1801 ff. - C. I. 870; C. G. 1022; C. H. 875; C. L. 1827, 1828 establish that when an indeterminate thing has been bequeathed, yet contained under a certain genus or species, the heir, to whom the choice pertains, is not bound to give the best, nor can he give the worst. Cf. C. H. 1167; C. A. 656, 658, 659; C. B. 2155, 2156, 2182 ff.; C. He. 484; C. L. 1805 ff., 1812, 1816 ff., 1832 ff.; L. 938. If the testator has left something annual or monthly to someone and his heirs, or has ordered a determined number of Masses to be celebrated each year, it is owed also to the heirs of heirs, and these will have to be celebrated forever. S. C. C., Aug. 4, 1864.

If the legacy is real, left from some estate or estates, or for the satisfaction of which the testator obligated these by pledge or mortgage, it binds whatever possessors of the thing in proportion to the estate; namely heirs always; outsiders, if the legacy has been duly transcribed, or the mortgage inscribed, or the estate has come to them by lucrative title. But if the legacy is personal, it binds only the heirs according to hereditary portions. Hence, if the estate or estates are destroyed, the legacies still survive. - Monthly or annual legacies are owed whole at the beginning of each month or year, even if the legatee dies after the month or year has begun. C. I. 837; C. A. 687. A legacy of an impossible or prohibited thing is without effect.

C. B. 2171 ff. When foods are left, food and wine are contained in suitable quantity. When support is left, all things are contained without which life cannot be supported: both food and wine, and clothing, and suitable instruction. C. L. 1831. A legacy of support can be demanded at the beginning of any year or month. C. I. 867; indeed it is owed according to C. L. 1841. - Annual legacies and legacies of support and usufruct cannot be made to several persons successively; and if this has been done, only those who are found in the first place at the time of the death of the testator acquire the legacy. C. I. 901; Inst. 1. 2. t. 22; Benedict XIV, de Syn. 1. 13. c. 25. n. 30 ff.; E. M.

Whether a legacy left by a debtor to a creditor is to be judged given in compensation of the debt? According to C. I. 845; C. G. 1023, a legacy of this kind, without mention of the debt, is not presumed to have been made in payment of the debt. Nevertheless the general presumption is that someone wishes first to satisfy his obligation, and then to give gratuitously.

Whether a legacy left to orphans can be given to the poor having useless parents; what of a legacy left to the poor? If true orphans are lacking, it can be given; because the will of the testator is sufficiently fulfilled; for he wishes to help children not having the means by which they may be supported. - But if true orphans are present, more probably altogether it cannot be given: because the express will of the testator must be fulfilled in its proper form whenever it can be fulfilled. Clem. Quia contingit de Rel. dom.; Trent sess. 22, c. 8. Nevertheless St. Alphonsus thinks that not improbably it can be given, because this more closely approaches the end of the testator, since then such children must provide not only for their own need, but also for the poverty of their parents. - L. 930.

A legacy left to the poor can be given to those who are in need according to their condition, and accordingly also to one's own blood relatives if they are truly in need; indeed someone can retain it for himself if he is truly in need, unless the testator left something else to him. - If it does not suffice for all the poor, it must be given according to the order of charity; and accordingly those more in need seem to be preferred. But the poor are regularly understood to be those of the place where the testator had his domicile. C. I. 832.

Whether a legacy left to girls so that they may marry can be given to those who become religious? - If the legacy was left to a determined person, it is certain that it can be given, unless the mind of the testator is otherwise established. For the testator intends primarily to regard the person herself with his benefit. - If the legacy was left to indeterminate persons, certainly more probably it must be given only to those marrying, and first marrying. For the express will of the testator must be preserved in its proper form whenever it can be preserved. But this will of testaments is very pious: they intend to provide for girls of this kind so that they may be removed from the danger of sinning. L. 930.

Whether a legacy left to a girl under the condition of marrying some man is owed if she marries another? "It is certain that it is not owed," because that condition does not injure the liberty required for marriage, since the girl can freely accept or reject such nuptials; and accordingly it cannot be regarded as a base condition, and as though not added. Exception, however, if "she herself is induced to marry an unworthy man, because then that condition is rejected as base, and the legacy is owed to her if she marries another." L. 853. Schmalz. 1. 4. t. 1. n. 149, 150; C. A. 700.

Whether a legacy left to girls so that they may marry can be given to girls who have already married without a dowry? Resp. Affirmatively, if it concerns determined girls; because the testator is presumed to have wished altogether to provide for them on account of a particular affection toward them, or so that, married, they may live decently. Otherwise, if it concerns indeterminate girls, because then the testator is judged rather to have wished to assist those marrying, so that they might avoid the danger of prostitution. L. 930.

But if the legacy concerns dowries, a more benign interpretation can be made also for poor married women; for a dowry is both for finding a husband and for bearing the burdens of marriage, and also for those professing a religious Institute; for a dowry is necessary for these also in order to embrace the state. - When dowries of this kind have been left to honorable girls, honorable girls are to be understood as those who are such in common estimation, not the immodest.

What comes under the name of movables or movable goods in legacies? - Movable goods are generally those which can be moved from place, such as clothes, animals, money, etc. Movable goods, movable things, movable, or even movables in opposition to immovables, sound the same. Movables, without addition and without determination, are said to be all goods which are not immovable, excepting money, books, jewels, coins, active debts, instruments of the arts, linens for the use of the body, horses, arms, grains, wine, hay, and other similar things. Also except those things concerning which a particular commerce is exercised. Furniture, or movables precisely furnishing a house, are altogether restricted to those things which are ordered to use or to the ornament of habitation, such as seats, tables, cabinets, etc. C. G. 527 ff.; C. I. 416 ff.; C. H.

335 ff., 346; C. A. 647 ff.; Gousset on aa. 533, 535; Lugo Resp. Mor. 1. 6. d. 10, 11.

He resolves: Hence silver furniture and animals are simply movables, excepting horses; linens, excepting those which are used for the body. If the testator says: I bequeath the movables to Caius and the immovables to Sempronius, Caius has a right to all movable goods, because the mind of the testator is evidently clear from the opposition of movables to immovables.

Gousset on a. 533; Rogron ib. If the legacy is stated thus: I bequeath to Titius all my movables, or movable goods, or the totality of movables, Titius has a right to all goods that are not immovable, because the word movables is not taken here without addition, but with an extension of meaning. Gousset 807 and on a. 533; Rogron ib.

Whether the Supreme Pontiff can commute the last wills of testators? - There is no doubt that the Pope can commute last wills with cause, as is clear from Clem. Quia contingit de Relig. domib. With cause, "because although the dispositions of testaments are judged to be committed to the Pope or Prince, nevertheless they are committed not as to an owner, but as to a dispenser of the common good or of pious causes. Hence, since the Pontiff is not the owner of such goods, he cannot, either from ordinary or extraordinary power, convert these dispositions without cause to another use than that to which they were destined by the testators. Therefore if the legacy is profane, the Prince will be able, on account of public necessity or another just cause, to commute it into another profane or pious legacy. But if the legacy is pious, the Pope alone will be able, with just cause intervening, to convert it into another pious one." L. 931; Benedict XIV, de Syn. 1. 13. c. ult.; L. Legatum 4 ff. de Administrat. rer. ad civ. pert.; S. C. de P. F. 1807, Collect. ed. 2. n. 689; A. S. S. v. 1, p. 609; v. 2, p. 353.

Whether Bishops with a just cause can commute pious dispositions? The first opinion affirms. The reason is that, from Trent sess. 22, c. 6 de R., Bishops, at least as delegates of the Apostolic See, and from a just and necessary cause, by their own judgment, can commute last wills. But the second and more probable opinion denies. The reason is that from C. Tua de Testam. and from Trent sess. 22, c. 8 de R., it is imposed on Bishops to execute all pious dispositions, both in last will and inter vivos.

"Laymann nevertheless judges very probably, and the Salmanticenses, etc., agree, that if some cause supervenes, or if it was unknown to the testator, which, if he had known it, he would have disposed otherwise, then the Bishop with the heir can by epikeia interpret the will of the testator and convert the legacy to another use, for example if a legacy has been left for making sacred vessels which the church does not need, but rather chasubles. But when pious legacies can in no way be applied to the use intended by the testator, they are not caducous, but must be applied to another pious use at the judgment of the Bishop and executor." L. 931, 939, 940; Lugo Resp. Mor. 1. 4. d. 32. n. 1, 8, 9, 10, 11.

There is certainly no opposition between c. 8 and c. 6 of the cited Council of Trent; but each faculty, as appears from the tenor of the text itself, is asserted of Bishops, and accordingly from the Council of Trent they truly are executors of pious dispositions, and can commute them from a just and necessary cause. - According to the cited chapter 6 of Trent, Bishops cannot make commutation unless from a just and necessary cause, copulatively. Barbosa Collect. in C. Trid. in l.c.; De Luca Annot. in S. Conc. Trid. Disc. XII. - Trent sess. 25, c. 8 de R.; Collectan. S. C. de P. F. ed. 1. n. 1622; Reiffenst. de Testam. n. 804 seq.

701. 1. State of the question. A testator can dispose of his goods in various ways, by instituting heirs, or legatees, or executors of the testament, provided he clearly expresses the intention of giving his goods or part of them for the time following his death. - Formerly a distinction was made between heirs and legatees: the former represented the deceased by succeeding to his goods either as a whole or according to an allotted part; but legatees received certain goods from the heirs themselves. Today, however, in France and many other nations, this division is omitted; but universal legatees, legatees by universal title, particular legatees, and testamentary executors are distinguished; concerning these we shall say a few things.

702. 2. Prescriptions of French civil law.¹ (A) Heirs or universal legatees are called those to whom the universality of the goods of the deceased is given. The testator can choose one universal legatee, or several, according as he wishes. (a) As regards rights, a universal legatee, if there are no necessary heirs, immediately obtains the dominion of the goods of the deceased and saisine, as they say; if there are necessary heirs, these obtain saisine, and the legatee must ask from them the handing over of the goods. (b) His offices are these: if he alone receives the inheritance, he must pay all legacies and debts, even beyond the resources of the inheritance, unless he received the inheritance under benefit of inventory;² - but if he concurs with a necessary heir, he alone is bound to pay all legacies, but debts only proportionately to the part of the inheritance which he receives.

¹ Cod. civ., art. 1002-1034; Planiol, III, n. 2730-2835.

² In the forum of conscience, more probably he is not held to pay debts beyond the resources of the inheritance, even if he did not use the benefit of inventory, at least before the sentence of the judge; for debts of this kind, as being real, are annexed to the inheritance itself, and therefore do not obligate the very person of the legatee beyond the resources of the inheritance. But, after the sentence of the judge, the law must be obeyed, which in itself is consonant with reason, insofar as it tends to this: that juridically there can be certainty concerning the resources of the inheritance, and thus the rights of creditors may be preserved.

(B) Legatees by universal title are those to whom the testator gives an allotted part of his goods, e.g., a third or fourth part, or all movable or immovable things. (a) These do not have saisine, but must ask for the goods given to them from the natural or legal heirs, or from the universal legatees. (b) They must pay debts and particular legacies according to the proportionate part of the inheritance which they receive.

703. (C) Legatees by particular title are those to whom the testator gives a determinate thing. (a) They have a right to the goods legated to them immediately after the death of the testator; but generally they cannot enter into possession or demand fruits except from the day on which they sought the handing over of the goods, or this was voluntarily granted by the heirs. (b) They are not bound to pay the debts and burdens of the succession, unless the testator has explicitly declared this, or the goods given to them are burdened with mortgages.

(D) Testamentary executors are mandataries chosen by the testator himself, for the purpose that they may faithfully watch over the execution of the dispositions contained in the testament; their rights and offices depend both on the intention itself of the testator and on civil law.

494. Rights and burdens of legatees. - In law there are wont to be distinguished heir, legatee, and testamentary executor.

An heir is he who naturally or legally succeeds to the goods of the deceased, even without a testament; whence he is called heir ab intestato (bij versterf). A legatee is he who receives from the goods of the deceased by force of legacy or testament. A testamentary executor is the mandatary whose office is to watch faithfully over the execution of the testament. Nevertheless, in present-day law, he also is called heir who succeeds from a testament, but by a universal title, not a particular legatee: thus the Italian Code (a. 760), German (a. 2087), Spanish (a. 668); but in French (a. 1002), Belgian, and Dutch law, no distinction is made between testamentary heirs and legatees, and all are called legatees. And therefore there are distinguished: heirs or universal legatees, - heirs or legatees by universal title, - particular legatees, - testamentary executors.

The dispositions of French and Belgian law follow:

A. An heir or universal legatee (eenige erfgenaam of algemeene legataris) is said to be he to whom the universality of the goods of the deceased is given. The testator can select one universal legatee, or several jointly; but if there are several, it is necessary that no part be assigned among them. To the universal legatee: a) there is the right, if necessary heirs are lacking, of obtaining at once dominion of the goods of the deceased and possession (la saisine; bezitrecht); - but if necessary heirs are present, these obtain possession, and the legatee must petition from them the handing over of the goods (la délivrance; de uitlevering of overhandiging). b) But the office is: if he alone accepts the inheritance, of paying all legacies and debts, even beyond the powers of the inheritance, unless he has accepted the inheritance under the benefit of inventory; but if he concurs with a necessary heir, of paying all legacies, but debts only proportionately to the part of the inheritance (a. 1003-1009).

B. Legatees by universal title are those to whom the testator gives an aliquot part of his goods, for example, a third or fourth part, or all movables or immovables. Now a) they do not have a right to possession, but must petition the goods given to them from the necessary heirs or from the universal legatee; b) but the office is theirs of paying debts and particular legacies in proportion to the part of the inheritance which they receive (a. 1010-1013).

C. Legatees by particular title are those to whom the testator gives a determined thing: a) they have a right to the goods bequeathed to them at once after the death of the testator, but generally cannot enter into possession or exact fruits except from the day on which they petitioned for the handing over of the goods, or this was voluntarily conceded by the heirs; b) but they do not have the office of paying debts and burdens of succession, unless the testator explicitly declared this, or the goods given to them have been burdened with mortgages (a. 1014-1024).

D. A testamentary executor (uitvoerder) is a mandatary selected by the testator himself to this end, that he faithfully watch over the execution of the testamentary dispositions. The testator can also designate several; but if he has designated none, the executor will be the heir. The rights and offices of the executor, whose office does not pass to heirs, depend partly on the intention of the testator, partly on the disposition of law: this demands a) that he take care that seals be applied, if among the heirs there are minors, interdicted persons, or absent persons; - that an inventory be made, the nearest heir being present or duly called; - that movable things be sold if money for paying legacies is lacking; - and that the testament be executed; - b) but the expenses made by the executor in fulfilling his office must be paid from the things of the inheritance (a. 1031-1034).

It is evident that legatees of diverse species can concur at the same time.

Testamentary dispositions are codicil, legacy, and substitution, concerning which it will suffice to note the following.

I. A codicil, or little codex, is called a disposition of last will by which something concerning a testament is explained, or is changed by adding or taking away. For the validity of a codicil, whether written or nuncupative, from Roman law five witnesses are required and suffice, even if not asked, and even if they are women. But among us a codicil must enjoy the same solemnities and the same number of witnesses as a testament. Cf. Kenrick, n. 27. - Kent, Comment. vol. 4, n. 531. - Devereux, lect. 68, n. 45.

II. A legacy is a disposition of last will by which the deceased directly leaves to someone some gift taken from the inheritance and to be furnished by the heir. A legacy can be: 1st, pure or absolute, or conditioned; 2nd, universal or particular, namely by universal title, for example, I leave all movables, or by particular title, for example, I leave such a sum. - Cf. Kenrick, loc. cit. n. 27. - Bouvier, Law Dictionary, under the word Legacy.

III. Although substitution sometimes obtains the name of fideicommissum, nevertheless it extends more broadly, since taken generally it is defined as: a disposition by which someone is called to an inheritance or legacy in the default of another. - There is a twofold substitution: one direct, by which someone directly and in his own name, in place of another, is called to the inheritance, if indeed that person cannot or does not wish to receive the thing; and another fideicommissary, or simply fideicommissum, by which an heir instituted by testament or coming from intestacy is burdened and obliged by the deceased to restore or hand over the whole inheritance or part of it to another. - Cf. Schmalzgrueber, lib. 3, tit. 26, n. 126. - Kenrick, n. 28. - Kent, Comment. vol. 4, part 6, lect. 54, n. 15, (c) 20 and 290.

I. QUESTION I. What is a legacy, and of how many kinds is it? ANSWER. It is a certain donation which a testator leaves to be furnished by an heir, out of that which would be the heir's. One legacy is pure, when it is left with no condition and no appointed time; another to a day, in which a time is prescribed for rendering it; another conditional, which is burdened with some charge. A legacy lasts according to the testator's will. Wherefore Alexander VII condemned the opposite opinion, no. 45: An annual legacy left for the soul does not last more than ten years. If the heir has repudiated the inheritance, the legacies are by common law void. Legacies for pious causes the heir ab intestato must pay. Many particular laws nevertheless decree that any legacies whatsoever are to be paid, even the inheritance being repudiated. Pure legacies are to be paid continuously.

II. Some estate, whether immovable or movable, being bequeathed, all those things are reckoned bequeathed which follow the estate. Hence, a pleasure-garden being bequeathed, the plants are understood to be bequeathed; a garment being bequeathed, the ornaments also, whether golden or silver, are bequeathed. As for legacies for pious causes, if a testator choose such a poor person or such a pious place, these being removed, the legacy must be fulfilled, unless it were established that the legacy was left as the good of that poor person himself. A shameful or impossible condition is held as not added to a legacy. A condition added that the legatee marry this or that girl is valid, and makes the legacy null unless the legatee marry the designated girl. If she refuse, the legacy is valid. Invalid is the condition of never marrying, widows excepted, in respect of whom the added condition of not marrying is valid.

III. A legacy left for a determinate maiden about to marry can be delivered to her even if she wish to enter religion. If the legacy be indefinite for orphans, widows, and maidens about to marry, the legacy is to be given to them: for indeed legacies for maidens about to enter religion are left by another formula. If maidens willing to marry should be lacking, which rarely happens, then, unless it were expressly established of the testator's opposite mind, it could be delivered to maidens entering religion. A legacy left to girls willing to marry cannot be delivered to married women, even poor ones.

IV. QUESTION II. Can a legacy destined for the girls of this city be delivered to strangers? ANSWER. That it cannot is certain, because it would be openly against the testator's mind. If nevertheless strangers should fix their domicile there, then, a decade having passed, it could be delivered to them as to the other inhabitants. A legacy left for maidens about to marry cannot be delivered to the corrupt, if it be juridically established that they are such. If the corruption were secret, the legacy could be delivered.

V. QUESTION III. Can anyone derogate from a testament? ANSWER. A testator is the supreme lawgiver by the law of nations and by civil law. His express will, a just cause being removed, cannot be changed. If it be doubtful, there is room for the interpretation of his mind, not for its commutation. Commutation then has place when the testator's mind is clear but cannot be fulfilled. In this case, if the legacy be profane, it becomes void and passes to the heirs. If it were for pious causes, it can be commuted into a like pious use at the bishop's discretion.

VI. QUESTION IV. When can the Falcidian portion be deducted from legacies? ANSWER. Caius Falcidius in the time of Caesar Augustus proposed a law for heirs, granting them the faculty of deducting the fourth part of the testator's goods, that by this way he might allure them to accept the inheritance, or lest they should be heirs in name only. This fourth part is called Falcidian from its author Falcidius. From the testator's goods, such as they are at the time of his death, this fourth part is to be deducted. But the common law concerning the Falcidian portion scarcely anywhere obtains today; but peculiar laws prevail, which prescribe what is to be done in the cases that occur.

A bequest (Legatum) and a fideicommissum are in effect the same thing, though they differ in manner and form; for the latter is made with oblique words, which look directly to the heir, who is burdened by the testator with handing over, e.g. to Titius, what has been entrusted to his good faith. The bequest, however, looks directly to the legatee, without any mention of the heir, as when it is said: I bequeath to Peter one hundred sheep, so that the same thing, with respect to the one to whom it is owed or given, is called a Legatum; and with respect to the one who is ordered to give, it is named a Fideicommissum: hence nearly the same judgment must be formed about both.

A bequest (Legatum) is defined as: A kind of donation left by a testator and to be furnished by the heir. So all the Jurists, in leg. legatum est, ff. de legat. 1. et 2.

It is called a Donation, because it is left not by any right of kinship but out of sheer liberality; for the testator has, up to the very last instant of his life, full power over his goods, so that it is lawful for him to bequeath and legate them at his pleasure. It is called to be furnished by the heir, for the reason adduced above in the last question.

The bequest is divided first into pious and profane, as is gathered from the cited Holy Doctor.

Second, the bequest is divided into universal and particular; the former rarely occurs, since it is of all one's goods, and is called a universal fideicommissum: the particular, however, is in common use, when the heir is compelled to hand over some definite thing.

Then it is divided into absolute and conditional. The former occurs when something is left without any determination, which must be restored to the legatee without delay after the death of the testator. The latter is made thus, with a condition added: I bequeath to Paul fifty gold pieces, if a son is born to him, and this must be fulfilled upon the condition's occurring. Now this condition varies with the variety of the object, or of the manner in which it is attached: it is sometimes tacit or express; possible or impossible; necessary or contingent; finally, honorable or shameful; likewise it is sometimes signified of the past, at times of the present and future.

Concerning these conditions the laws thus decree, and the Doctors so judge: that a contingent condition about the future, possible and honorable, suspends the bequest until it is purified; conditions about the present and past annul or bind the bequest in the very instant, since such conditions are necessarily actually true or false; but an impossible condition, or a necessary and shameful one, is considered as not attached. So Vasquez, De testamentis, cap. 8.

In every bequest, moreover, there is understood tacitly: if the inheritance be entered into, by the common law, although the royal law has decreed otherwise: there is also a tacit condition underlying an annual bequest, which is understood to have been left for as many years as the legatee shall live; so that nothing passes to his heirs.

But that slender distinction which exists between a conditional and a modal bequest so torments the Jurists that they plainly do not know: if a girl's dowry is left, ut nubat (that she may marry), does it import a condition, or rather a mode?

Baldus, Covarru., Peregrinus, and Simon, on these points in Bonacina loc. cit. prop. 3., hold that the bequest is modal, and therefore that its payment is not to be deferred, at least if it is made by the parents; wherefore, they say, the girl can compel her brother to make the payment even before she is of marriageable age.

On the contrary, Bart. Gomez, Mantica, Molfesius, and others cited in the same place proclaim it to be conditional, and accordingly that one must wait until the girl is ripe for a husband; in the meantime, however, they teach that the brother is bound to nourish her and supply other things according to the decency of her station, since he succeeds to the father's place.

The whole difficulty lies in those little words Si (if) and Ut (that): for if something is bequeathed to a girl, si nubat (if she marries), it is certain that it is a condition; but if, ut nubat (that she may marry), who does not know that the final cause of the bequest is denoted? and thus it is owed to her even before she marries a husband, and even if she should never marry, provided only that it did not lie with her that she did not join herself to a husband; the reason is, because when a condition is rendered impossible for the legatee without his fault, it is considered as not attached.

Hence Vasquez, in Bonacina, ubi supra, infers that a bequest left to Berta, that she may marry Titius, ought still to be restored to Berta when Titius has died, in case she wishes to marry another. From this one may infer that when something is bequeathed with the burden of a certain action, there is contained in it a tacit condition, if the legatee should wish to undertake such an action; for if he should not wish it, the bequest must be denied to him: whence the dowry bequeathed to Berta, that she may marry, must be handed over immediately after the death of the testator, if she wishes to marry; yet with a caution given; but if she should altogether refuse to marry, the cause and final motive ceasing, the effect will safely cease. Now the decision of this difficulty is of no small consequence, that it may become clear whether a dowry thus left, and not handed over before the death of the girl, is to be transferred to her nearest heirs, or whether rather the heir of the testator himself has a right in it.

SInce the will of the testator is immovable after death, as S. Bonaventure, on the Rule of the Friars Minor, cap. 4. letter B. says, the general rule of all justices is that bequests must be paid to all those persons who are capable of goods. But in order that these may be discerned, it must be noted that the laws declare the liberty of certain persons to be so proscribed that they can have dominion over nothing: and in the first place manifest heretics, where the Holy Inquisition holds dominion, can possess nothing, since their goods are adjudged to the fisc; wherefore bequests made to them, as also to apostates, are invalid by the law itself, as is had in Leg. Manichaeos, C. de haereticis.

ITEM, bequests left to uncertain persons do not stand: §. incertis, instit. de legatis. Yet conceive this thus, if they are altogether uncertain, since nothing can be rendered to those who are known to us in no way. But if there is present, or soon to be present, some ground for discerning such persons, a bequest can validly be made to them: as if one should bequeath in favor of the one who has married his granddaughter or daughter, such a bequest will stand, and it must be rendered to the granddaughter or daughter already wed.

From this rule are excepted bequests made to God, if anyone should so express his will, because God is not reckoned among uncertain persons; and the civil law cannot extend its exceptions to pious causes; wherefore such a bequest will have to be furnished to the greater Church of that place in which it was made, as is noted §. si quis in nomine magni Dei, Anthem. de Eccles. The same is to be understood of bequests to pious causes universally, since the civil law holds no authority over them; and if they are made to Churches, this is to be understood of the Church of the place, and where several Churches concur, of the greater Church; if all are equal, it is to be given to the Bishop, that he may distribute it among all according to his prudence. So Bonacina with others cited by him above.

It is DOUBTED among the Jurists, indeed, whether a bequest left to the poor must be given to the poor of the place, or whether it suffices that it be given to others. Some adjudicate it to those who are held in need in the homeland of the legator, argument. leg. si quis ad declinando, §. ubi autem; for the testator is judged to be more affectioned toward them than toward strangers: nevertheless, Bonacina holds as more probable that satisfaction is made to whatever poor it is given; since the last will is to be believed to burn with a more common piety than with particular affection, and that is sufficiently fulfilled in any needy persons whatsoever.

WHEN, however, a bequest is left to Canons, it must not be drawn to their Church but to the whole chapter, which is something other than the Church; and then it must be divided among all in geometric proportion, according to the grade and dignity of each; but if the bequest is to individual Canons: then it is to be distributed equally, or arithmetically, among the individuals. But if it is bequeathed to one alone, let it be handed over to this one, not another, out of reverence and observance of the last will. Bonacina notes this very aptly above, citing Mantica, Covarruvias, Genuensis, Vasquez, and others.

IN any bequest, however, in which a doubt arises concerning the persons to whom it must be paid, the intention of the legator must be attended to above all, and the simple signification of the words; and these failing, pious causes are more to be favored. Hence you have several resolved cases.

FIRST, a bequest left in general to women to be married cannot be dispensed to girls not yet marriageable; for in them it is presumed that the will of the testator is not being fulfilled. So Mantica de coniect. ultima vol. lib. 21. tit. 21. num. 5., Sanchez de matrimonio, num. 7. disp. 91., and several others in Bonacina above.

SECOND, a dowry bequeathed to a girl, if she marry, is nevertheless to be handed over to one wishing to enter religion; so all commonly; say the same of a bequest made to a widow, as long as she leads a widowed life, which she can also lead more honorably in religion. So Sanchez cited above.

There is a DIFFICULTY, however, about a bequest made to a widow on this condition, that she always dwell with her sons, and she wishes to fly to second nuptials, the sons refusing to dwell together with the father-in-law.

There is a TWOFOLD opinion of the Doctors on this matter. The first is that of Baldus leg. 1. Cod. ubi pupilli, etc. and leg. 1. at the end, Cod. de leg., Iason. in the same place, and of not a few others, whom Sanchez reports and embraces ubi supra: that such a bequest becomes void, because a tacit condition must be presumed to be in it, that she not pass to second nuptials; and besides, the sons can plead a just motive of fear; as if a wife should bequeath to a husband on a like condition, and he should take a stepmother to his children, without doubt the children would have just cause to withdraw from her, since she is wont to conduct herself more harshly.

The SECOND opinion is Bonacina's, citing Bartolus, Imola, in leg. cum tale, num. 2. ff. de condit. et demonstr. and others, who say that such a bequest must be paid even to one flying to second nuptials and wishing to dwell with the sons of the former husband: the reason is, because the bequest is owed to one willing, though not able, to attach a condition; nor is that cohabitation so suspect, since it is customary; but if the sons wish to reject her, it is their fault, which must not bring prejudice to the legatee.

I WOULD SAY, however, in conscience, that such a bequest is not owed, if either the mother herself or the sons' tutors had noticed that such a dwelling would be harmful on the part of the father-in-law, and the mother, once admonished, refused to acquiesce; for thus she herself is judged to remove the condition, and she is at fault.

THIRD, a bequest given to a future wife in general, before the testator has been married, can be paid to the second wife, since out of affection for the wife surviving him he is presumed to have so bequeathed. But if he makes the bequest already married, it is presumed to be for the first, and the second is excluded, even though she enjoy it under the same name with the first, because the husband's affection must be judged to have regarded only the former. So Barbosa leg. divortio, §. 8. ff. soluto matrim., Menoch. lib. 4. praesumptione 122., and Sanchez supra numero 59.

FOURTH, a conditional bequest made, that there be no passage to second nuptials, must be paid, even if nuptials, but invalid ones, have followed. The reason for this is sought from the rule non praestat, de regul. iuris in 6., because an impediment does not avail which obtains no effect by law. So Gutierrez capite III. numero 7., Sanchez citat., who add, with Sylvester verbo sponsalia, quaestione 1. dicto 2., that such nuptials, even valid ones but not consummated on account of some unforeseen event, do not invalidate the bequest; because in penal, or odious, matter, by the name of nuptials a consummated marriage is understood.

IN all these cases it must be considered that the legatee ought to receive whatever is left to him from the hand of the heir, not by his own authority; otherwise he will be guilty of Commissum, that is, he will suffer the loss of the bequest; understand this, however, after the heir has entered upon the inheritance; and this penalty is inflicted by the law, that time may be given for the Falcidian portion to be deducted; whence it is clear that pious bequests, not subject to the Falcidian portion, do not undergo this penalty; see Bonacin. de contract. puncto 8. dub. 3.

But if the heir should be contumacious in paying the bequest, a threefold action lies for the legatee against him: the first is Personal; for since the heir has contracted the debts of the deceased testator, he is judged to obligate himself and his goods to paying them, leg. 2. Cod. communia de leg. Yet if he is not an heir by testament but by another title, that action will cease, and the Praetorian action will succeed. The second action is named Hypothecary, by which the thing of a definite species remains hypothecated to the legatee; or even all the heir's goods, if the thing bequeathed is only of a definite quantity; so it has been decreed by said law. The third action is for the very thing itself, that it be vindicated, whose dominion, since it has been transferred from the day of the testator's death, can be vindicated from whomever possesses it; whence the legatee can seek the aid of the Judge, or bring the interdict Salvianum for the thing; see Bonacina and the Doctors cited by him puncto 8. §. 4. toward the end.

A GREAT difficulty there is, and it is the seedbed of many litigations, when the same thing is bequeathed jointly to several, to whom then must it be rendered: that this may be resolved more clearly:

It must be NOTED first, from the disposition of the laws, that there is given in bequests the Ius accrescendi (right of accrual) and the Ius non decrescendi (right of non-diminution). The former is a kind of right by which one, by reason of his conjunction with another, obtains that other's vacant part: for if the same thing is left to two, and one wishes to repudiate it, but the other to claim it, the whole title will be of this latter, because he was conjoined with the former, whence the thing repudiated by the latter must accrue to him. But the Ius non decrescendi is that by which some failing thing comes to someone not by his own right but by another's: under this right, if one canon is absent from the choir, the one assisting will be able to claim his distributions for himself.

It must be NOTED second, that some can be conjoined in a threefold way: by the thing only; by the words only; and by the thing and words at once.

The FIRST conjunction occurs when one thing is left to two under a diverse formula of words; and then it is bequeathed in solidum to both, whether by testament to one and by codicil to the other, or by both at once: wherefore, one repudiating, or being unable to recover anything, the whole is acquired by the other.

The SECOND conjunction is made in a twofold way. First, if the same thing is left to two distributively in the same words, as if it were said: my estate at Lyons in parts, portions I leave to Peter and Paul: if one should reject this estate, the other can receive the whole by the right of accrual; for although it was not bequeathed in solidum to both, nevertheless the law decrees unica, §. his ita, C. de caduc. toll., that since the parts are only divided in the mind, not designated to the eye, each, the other failing, obtains the other's part.

SECOND, it occurs when diverse things are not bequeathed in diverse words, as when it is said: my house at Bergamo to Titius, and my house at Lyons to Caius I leave: here there is no right of accrual, although the conjunctive particle and makes the same context of speech, because the things are utterly diverse.

The THIRD conjunction then occurs, when in the same last instrument the same thing is left to several in one context of words, without any division of parts; for example, my field at Bergamo I bequeath to Titius, and the same I bequeath to Paul. This conjunction is the most commodious of all, and by the law of accrual it prevails over the rest: but if conjunctio re tantum (by the thing only) and conjunctio verbis tantum (by the words only) occur at once, many, cited in Bonacina §. 5., wish the force of each to be equal; others, however, consenting, hold that the conjunction by the words only prevails, since it draws forth the more express will of the testator: see Molfesius in summa, 2. p. tract. 13. cap. 5. num. 75. et seqq., Mantica de tacitis et ambiguis convent. lib. 10. tit. 3., Tuscum verb. ius crescendi conclus. 566., with Oinotom. instit. de legat. §. si eadem res, num. 3. et seqq.

Yet the Testator can forbid this right of accrual, so that, one of the conjoined failing, his part falls to the heir; whence there shines forth a great difference between the heir and the legatee: for the latter can obtain nothing by the right of accrual where the express will of the legator shall have expressed otherwise; but an heir instituted in some particular thing, the other heirs failing, can succeed to the whole inheritance, even if the opposite has been expressly provided in the testament; and the reason is, because the testator cannot impede the effect of the common law, which decrees thus, lest anyone die in part testate and in part intestate.

ANY thing whatsoever that is alienable, to which the testator has a right, can be bequeathed; the reason arises from dominion over the thing, which is subject to the plain disposition of any Lord. But a thing belonging to another cannot be bequeathed, because a bequest imports a translation of dominion, which must be supposed in the one bequeathing. Yet if anyone should make a bequest of another's thing, willing and knowing that the thing is not his own, then the bequest falls directly upon the heir, who is bound to procure for the legatee that thing or its estimation, as is had in leg. cum alienam, Cod. de legat. and §. non solum, institut. de legat. Nevertheless it falls to the legatee to prove that it was made known to the testator that that thing was another's: partly because he is the actor, whose it is always to prove; partly, because it clearly stands that the thing is another's, which simply cannot be bequeathed; but the presumption stands for the heir, until the opposite be proved. And these things are so according to the disposition of the civil law; but in the forum of conscience, Bonac. §. 3. proposit. 1. judges that such a bequest can neither be made nor paid; with whom accords cap. filius noster de testamentis, reproving the civil law because it makes valid a bequest of another's thing; yet Vasquez dub. 2. teaches that every bequest of another's thing, even made in ignorance, is valid, if made in favor of a wife, a dear friend, or his own servant, because then it is presumed that the Testator would have done the same even if he had known the thing to be another's; whence the heir is compelled to furnish the estimation of the thing, and this is special in a bequest: for in the institution of an heir, another's goods are invalidly inserted, nor is their estimation owed. So Vasquez, citing Gomez in the same place.

But the things of a Church, or of commonwealths, which are not subject to our commerce, can be bequeathed LESS; for the alienation of these things and the like is prohibited, as is had in Institut. de legat. §. non solum, cited above. Yet some thing in which the testator has some right can be bequeathed; and it will stand for that part, if he has bequeathed only his own right; but if he bequeathed the thing, and afterwards obtained the whole of it for himself, the whole bequest will stand, by whatever title he acquired it. So Vasquez, and in part Bonacina, cited.

Also a thing of the testator obligated to a creditor can be alienated by bequest; because in it there is always preserved by the Testator some right, which he can transfer to another; and if the testator was ignorant that the thing was obligated, the heir is bound to redeem it and hand it over to the legatee.