Testamentary Succession

I. Notion of a testament. A testament is an act by which someone disposes of his goods for the time that will follow death. The act of a testament can be revoked during life, but it is confirmed by death.

II. Division of a testament. A testament is divided into solemn and non-solemn, or informal, according as the solemnities required by law, or the prescribed form, have been observed, or have not at all or only partly been observed.

III. Faculty of testating. 1. Considered according to natural law, all who enjoy the use of reason can make a testament. Those who habitually or sometimes lack the use of reason can testate during the time of a lucid interval, if such is given. Nevertheless, for the validity of a testament free consent is always required (St. Alphonsus, III, 921, 942).

2. Who can make a testament, considered according to civil law, see in the law of one's country.

IV. Faculty of acquiring from a testament. Considered according to natural law, all human beings can acquire from a testament (n. 757); who are excluded by civil law, learn again from the law of one's country.

V. The form of a testament is established by civil law; consult it.

Whether and how far an informal testament has force in conscience is explained where discussion will be had concerning an informal contract, or a contract voided by law for another reason.

VI. Testamentary dispositions prohibited by law, interpretation, execution, and revocation of a testament should be consulted in the law of one's country. As regards prohibited dispositions, two things commonly must be guarded against: 1° lest the testament contain a fideicommissary substitution, as it is called; 2° lest the legitimate portion be injured. Now:

1. Substitution, taken generally, is a clause by which someone is called to an inheritance or legacy after another. It is distinguished as twofold, vulgar and fideicommissary. Vulgar substitution is that by which someone is called to an inheritance or legacy for the case in which another cannot or refuses to accept it;¹ fideicommissary substitution is when the burden is imposed on the heir or legatee of preserving the inheritance or legacy and afterward handing it over, either whole or in part, to another. Now fideicommissary substitution is commonly voided by civil law.

2. The legitimate portion is that part of goods which must be left to necessary heirs, so that it cannot be disposed of either by donation inter vivos or by testament. Who are necessary heirs, and how great the legitimate portion is, see in the law of one's country; as regards its obligation, consult approved interpretation.

¹ For example: I constitute Peter heir; if Peter refuses, let Paul be heir.

820. • I. Those can be testators: From Roman Law, all having the use of reason, except deaf-mutes from birth, impuberes ¹, prodigals, those condemned to civil or natural death, and also professed Religious. But from Gallic Law: 1. all who can make donations among the living; 2. wives, who, although they cannot pay out donations among the living without the special consent of the husband or the authority of the judge, nevertheless need neither of these in order to be able to dispose freely by testament (art. 905); 3. minors from the sixteenth year can testate only concerning half the part of their goods concerning which majors are able to dispose (art. 904); but interdicted persons cannot testate.

¹ According to the Institutes (book 2, title 12), add all those who are subject to another's law..., and indeed to such an extent that, even if their parents have permitted it, they can by no means testate by law. These indeed (ibid., sect. 1) are openly distinguished from impuberes.

821. • II. As regards heirs: 1. Those can be instituted as heirs who are not specially prohibited by positive law, although they lack the use of reason, as was said concerning donation, n. 802.

2. But from Roman Law there are prohibited those condemned to death, both natural and civil, traitors, and their spurious children, according to the restrictions to be placed below. But from Gallic Law, those are prohibited who cannot receive donations. - See above, n. 804.

3. Any heir can renounce an opened inheritance according to the axiom: No one is heir unless he wills. Thus from any law whatsoever. The reason is that no one is held to accept a benefit, of which sort especially is a testament, which is often burdened with great burdens. But renunciation is not presumed, but must be made with juridical form. From Gallic Law it is to be made in the record office of the tribunal of the territory in which the succession has occurred, and in the special codex of acts which is preserved there for this end.

822. Questions. - It is asked, 1. Of how many kinds is an heir distinguished?

I reply. 1. Legitimate, who succeeds by law from intestacy;

2. Necessary, who cannot be excluded by the testator;

3. Voluntary, who is called as heir from the free will of the testator.

Hence it is clear that one must also distinguish an heir from testament, if he has been designated by testament, and an heir from intestacy, if by law he succeeds the deceased who made no testament or an imperfect testament.

It is asked, 2. Who are necessary and legitimate heirs?

I reply, 1. In each law necessary heirs are all relatives in the direct line, namely: 1. descendants in the nearer degree; 2. in their absence, ascendants, both on the part of the father and on the part of the mother, likewise in the nearer degree. I reply, 2. Legitimate heirs are besides all blood relatives of the nearer degree also in the collateral line up to the tenth degree in Roman Law, that is, the fifth as regards canonical computation, and the twelfth from Gallic Law.

823. • It is asked, 3. What are the rights and obligations of heirs?

I reply. Generally heirs succeed to all the rights and burdens of the deceased, because they represent his person; only those things are excepted which by their nature or by pact were affixed to the person of the deceased. Hence they acquire the dominion of the goods of the deceased by full right, they take upon themselves his obligations and debts, and they must fulfill his will in legacies.

As regards the mode of paying debts left by the deceased, each pays in proportion to his hereditary portion, and if because of a hypothec they are compelled to pay more, they have recourse against the rest. - C.C. 873.

An heir can accept an inheritance under benefit of inventory, namely so that, once an inventory of goods has been made according to legal form, he is not obliged beyond the resources of the inheritance. If he has not accepted in that way, in the external forum he is held to pay all debts, even if they exceed the resources of the inheritance. But it is controverted among Theologians whether in this case the heir is held in the forum of conscience to pay debts as regards the excess beyond the goods accepted. - But more probably and more commonly this is denied. - Salmant. - Reuter. - Gousset, Code commente, art. 302.

824. • It is asked, 4. Whether necessary heirs can be disinherited?

I reply, 1. From Roman Law, sons can be disinherited by the sole authority of the father in the following cases: 1. if a son lays hands on a parent, or treats him contumeliously; 2. if he is his accuser or witness in criminal causes; 3. if he has relations with his wife; 4. if he refuses to stand surety for freeing the father from prison; 5. if he has prohibited the father from making a testament; 6. if a daughter, an honorable marriage having been refused, lives luxuriously ². - St. Lig., n. 948 and following.

² The Author enumerates only certain principal causes of disinheritance, and those more frequent in practice. But Roman law has altogether more (Novell. 115 and 22), since it enumerates fourteen in children, eight in parents, finally three in brothers, to whom otherwise the complaint of an undutiful testament would belong. These indeed you have comprised in these little verses (see Ferraris, Biblioth. Can. Iur. Mor., v. Exheredatio):

As regards children -

For fourteen causes let the son be disinherited: If he strikes his father, or speaks evil to him. If he neglects him thrust into prison, or mad, Accuses him of a crime, or prepares snares. If he has given grave damage, if he has not redeemed him from the enemy, And forbids him to testate, and associates himself with evil persons. If he follows actors, and violates the bed of his parents, If he changes the faith, if the daughter is a prostitute.

As regards parents -

If the father accuses of a capital crime, or Joins himself to his daughter-in-law, he has plotted against life, He forbids the son to testate, and prepares poison for the mother, Neglects one enclosed in prison or mad, And contemns the true Religion.

I reply, 2. From Gallic Law heirs can never be disinherited by private authority. Nevertheless, by law they are excluded from the inheritance as unworthy in a threefold case, namely: 1. if they plotted against the life of the testator; 2. if they denied him aliments; 3. if they gravely reviled his memory. - See art. Cod. 727, 955, 1046, 1047.

825. • It is asked, 5. What is the reservation or legitimate portion owed to necessary heirs?

I reply. It is diverse according to diverse laws. From Roman Law: 1. As regards ascendants, a third, or third part, is reserved if descendants are lacking.

2. As regards legitimate children, a third, if there are not more than four children; and a half, or half part, if there are more.

3. As regards natural children, they succeed to the mother by equal right with legitimate children. But they do not succeed to a father having legitimate children, although they can receive from him a twelfth part of the inheritance. But if the father lacks legitimate children, natural children can succeed to him in all goods ³. - See St. Lig., nn. 947-951.

³ The Author, as is clear, in this third paragraph mixes in certain things which do not pertain to the proposed question concerning the legitimate part. But the things which he has you will understand more clearly from Cardinal De Lugo (De Iust. et Iur., disp. 24, nn. 88-90) thus: First, it must be said that a natural son, legitimate descendants and ascendants being lacking, can receive from his parents (namely, by testament) all goods.... But by the same common law, when legitimate descendants exist, only a twelfth part of the goods can be given to natural children and their mother together by the father (by testament); but to the mother alone surviving can be given half of the twelfth part. Whence Covarruvias, whom Molina brings forward and follows, disp. 166, infers that to natural children, when their mother has died, the whole twelfth part can be given by the father. But when legitimate descendants are lacking, and legitimate ascendants exist, to whom by common law a third part of the goods is owed, the remainder can be given (by testament) to natural children.

Second, it must be said that natural children by the same common law, legitimate descendants being lacking, and no legitimate wife surviving, succeed by intestacy to the father in a sixth part of the goods, to be divided by equal parts among themselves and their mother, if she is surviving; but as regards the rest, the other heirs by intestacy succeed. If nevertheless either legitimate children or a legitimate wife remain, they succeed in nothing, but competent aliments are owed to them. But whether the same thing must be said when there are legitimate ascendants, that even then natural children succeed by intestacy in that sixth part of the goods, some deny; but Molina better affirms it in the said disp. 166. And these things which have been said concerning the succession of natural children by testament or by intestacy have place also in grandsons and great-grandsons with respect to grandfather and great-grandfather, and proportionally also have place in natural ascendants themselves, who succeed in the same way to descendants in the absence of descendants who are preferred to ascendants; which is true in the same way as regards aliments.

Third, it must be said: by the same common law natural children not only can succeed to the mother by testament, but also by intestacy in equal portions with legitimate children...; and the same must be said of the mother with respect to a natural son, succeeding in the same portion to a son who does not have descendants.

As regards brothers -

For three causes he may drive away an ungrateful brother: If he brings snares and destruction to his brother. If he invents crimes to be expiated by sword and fire, Or if he attempts to destroy his brother's wealth.

From Gallic Law, whether for a testament or for a donation among the living: 1. As regards the reservation owed to legitimate children, if there is one, half the goods is reserved; if two, two thirds; if three or more, three fourths.

2. As regards the reservation to be attributed to illegitimate children legally recognized, if other legitimate children are present, there is reserved to the illegitimate children a third part of the portion which they would have reserved if they were legitimate; if, children lacking, there are ascendants, brothers, or sisters, half of the aforesaid portion; but if there are only other blood relatives, three fourths of the said portion are reserved; if there are no blood relatives, they have the same reservation as if they were legitimate.

3. As regards the reservation owed to ascendants, if legitimate children are present, they have no right; if brothers or sisters are present, father and mother each have a right to a fourth part ⁴; the remaining ascendants are excluded by brothers. In the remaining cases they have a right to a second or fourth part, according as they are from each side or from one only ⁵.

⁴ These things seem to pertain to succession ab intestato according to articles 748-751. For in the hypothesis of a testament, the portion of which the son may not dispose is sometimes reserved to the father and mother alone, the brothers being excluded. See art. 915.

⁵ Perhaps the Author, following Art. 915, wished to signify here that if the father and mother are lacking, the other ascendants also have a right to the legitime, so that this portion is a half, or the moiety (and not a second part), if they survive from both lines at once; but a quadrant, or fourth part, if they survive from one only.

A wife does not come among necessary or legitimate heirs by intestacy, unless the remaining legitimate heirs within the degrees established by law are lacking. Thus from each law, namely Roman and Gallic. Nevertheless, on account of the very close bond between husband and wife, by natural law the testator must assign some part to the surviving spouse if that spouse does not have sufficient goods of his or her own. - Scavini. When even the wife is lacking, the State enters upon the inheritance by law. Hence the axiom: The fisc after all. Thus also in each law.

A natural son from Gallic Law must be recognized by an authentic act, unless he has been recognized in the very act of birth; but adulterine and incestuous children cannot be recognized.

826. • It is asked, 6. Whether by natural law a testator is held under grave sin to leave goods to relatives who are not necessary heirs?

I reply, 1. As regards brothers, affirmatively, if they are in grave necessity; otherwise, there will be only venial sin; indeed no sin, if the motive is reasonable. - Thus commonly. - St. Lig., n. 946. - Laymann. - Lugo..., etc.

I reply, 2. As regards other more remote blood relatives, according to the more common sentence there is not a grave obligation of preferring them to the rest, even if they are poor; nevertheless venial sin will not be lacking if they are passed over altogether without reasonable cause. - St. Lig., etc.

827. • It is asked, 7. Whether parents sin in the forum of conscience against justice if they injure the legitimate portion of children by testament, or donations among the living, or simulated contracts?

I reply affirmatively, of itself, with the more common sentence. The reason is that the law enjoys all the conditions required for obliging in the forum of conscience, namely, it is just, useful to the public good, and invalidating ipso facto. - Reuter, n. 286. - Gousset. - Bouvier.

I said, of itself, because parents do not seem to sin in any way who for a just cause partially injure the legitimate portion of children in some particular case. For then the end of the law ceases, which does not intend to touch those particular cases which profit the family and do not harm the common good; e.g. if a father were to bestow certain donations on an upright son by reason of remuneration, whence less would come to a dissipating son. - Gousset, n. 794.

After the fact, children who have accepted a greater part of the paternal inheritance, not without detriment to another heir, are not easily to be disturbed, when from the circumstances of things it can be conjectured that the parents favored them from some just cause; especially if they are in good faith, and it can deservedly be feared that they would refuse to fulfill the obligation. Indeed it seems to not a few theologians that civil law cannot so oblige parents to preserve equality among children. And so they of themselves exempt them from fault, if otherwise they have sufficiently provided for the honorable support of the children, and are not moved by a depraved end.

828. • It is asked, 8. Whether parents can pay out manual donations to some one of the children, or to outsiders, or to pious causes?

I reply. Parents can licitly make the following donations: 1. donations which are accustomed to be made among relatives and friends of equal condition, as little gifts, etc.; 2. remunerative donations according to the quantity and quality of merit, according to the estimation of prudent persons, because these ought rather to be called payment of some debt than a gratuitous donation; 3. any donations whatever, of themselves, from mere revenues, the capitals intact, which constitute the patrimony properly so called ⁶, because parents of themselves are held by no right to increase the patrimony from revenues or labor.

⁶ It by no means appears why a donation cannot also be made from those things which constitute the patrimony, provided the legitimate portion of the children is not injured. Lugo (disp. 23, n. 147) writes thus concerning this matter: "Parents, if they have donated undutifully, that is, to the prejudice of the legitimate portion of the children, their donations can be revoked by the children. Nevertheless the donation is not invalid, but can be annulled." And surely who would contend that a father of a family, having several farms, cannot give, for example, part of a garden (which surely is not computed among the revenues of the patrimony) or even a whole garden to the Capuchins, if this donation leaves the legitimate portion of the children intact?

273. Preliminary notions. Although hereditary succession, strictly speaking, is not a contract, because the consent of the one conferring and of the one accepting the inheritance does not exist at the same time, nevertheless it is rightly reduced to donation.³² For through it, and notably through a testament, ownership of an inheritance is transferred gratuitously to others. For the sake of clarity, certain preliminary notions must be explained:

Hereditary succession is called the right of succeeding to the goods and rights of a deceased person. It is twofold: the one legal or intestate, by which the right of succeeding arises from the disposition of law even without the expressed will of the deceased; the other testamentary, by which that right of succeeding arises from the last will expressly manifested by the deceased himself.

An inheritance³³ is the universality of goods pertaining to the deceased.

An heir is one who receives the goods of the deceased; and if he receives all his goods, he is called the universal heir (or heir to the whole estate); but if he receives only a part, he is an heir in part. Furthermore, there are distinguished: 1. an intestate heir, who succeeds to the goods of one who died without a testament; and a testamentary heir, who receives the goods of the deceased by force of a testament; 2. a necessary heir, who by force of positive law cannot be omitted from hereditary succession except in cases determined by law, and an arbitrary heir, who is freely called to the inheritance by the testator. In modern codes there are still other divisions of heirs,³⁴ but knowledge of those divisions is not so necessary for the confessor.

The legitimate part or portion³⁵ is that part of the inheritance which must be left to the necessary heirs³⁶ by statute of positive law.

The principal modes of acquiring an inheritance are two, namely, by testament, under which an inheritance pact can be included, by which someone declares his last will concerning his goods; and by intestate succession, if someone has died without a testament. We shall treat the latter at n. 280ff.

³² Thus also Noldin, De praeceptis, before n. 546; Tanquerey, De contractibus c. 2.

³³ In German, Erbschaft.

³⁴ E.g., prior heir, subsequent heir, substitute heir, forced heir (Vorerbe, Nacherbe, Ersatzerbe, Noterbe), etc.

³⁵ In German, Pflichtteil.

³⁶ In German, Noterben.

274. The right of making a testament is indeed founded in natural law, but it is determined by positive law.³⁷

Theologians and jurists dispute greatly concerning the origin of this right. Some, and indeed nearly all Catholics, say that the right of making a testament arises from natural law itself; others teach that the faculty of making a testament arises from civil law alone. Thus Pufendorf,³⁸ Schmalzgrueber,³⁹ Zallinger,⁴⁰ and, in addition, those who deny the existence of natural law. Finally, others teach that the faculty of making a testament is indeed founded in natural law, but receives its full force and determination from positive law. Hence it follows that positive law can indeed restrict the faculty of making a testament, but cannot abolish it entirely. This controversy pertains more to Moral Philosophy than to Practical Moral Theology. Hence there is no leisure to discuss it at greater length.⁴¹ Let it be said briefly: the right of making a testament seems to flow from natural law in almost the same manner as private ownership, of which it is a necessary complement. For private ownership includes the perfect faculty of disposing of one's own goods, and indeed not only concerning what ought to be done with them here and now, but also after the testator's death. Nevertheless, positive law can for reasonable causes limit this faculty of making a testament more or less, as in fact has been done in all civilized regions. Indeed, this limitation is excessive in some codes. On the contrary, elsewhere there is excessive freedom of making a testament, and great inconveniences are wont to arise from it. For it is unreasonable that, e.g., a father can without an urgent reason disinherit one or more children and transmit his entire fortune to one child.

³⁷ Cf. Billuart, De contract. diss. 2, a. 3, § 4, and Tanquerey, De iust. n. 688ff.

³⁸ De iure nat. et gent. l. 4, c. 3.

³⁹ On book 3 of the Decretals, tit. 26, n. 38ff.

⁴⁰ Inst. iur. nat. l. 1, q. 720.

⁴¹ Cf. Cathrein, Moralphil. II, 339ff.

275. A determined mode of making a testament is not required by natural law; positive law, however, has wisely established norms for making a testament legitimately. For thus many frauds are avoided which otherwise could easily occur. The principal modes are the testament, codicil, and legacy.

A testament is, as it were, an attestation of the mind, and according to ancient Roman law is called that last will by which an heir is instituted; according to several modern laws, however, a testament is called generally the total final disposition of one's own goods after the testator's death.⁴²

A codicil is an explanatory or modifying addition appended to a testament already made. A codicil, however, does not have the same meaning in the different modern laws.

A legacy is a determinate thing which, according to the will of the testator, must be delivered from the so-called mass of the inheritance to some determinate person. It is called a legacy strictly so called if the testator directly bequeaths something to someone; e.g., I bequeath my books to Titius. It is called a fideicommissum,⁴³ however, if the testator indirectly, i.e., through another, bequeaths something; e.g., I give my fortune to Peter with the burden of paying 5,000 francs after three years to my nephew Caius.

⁴² Cf. Institutes 2, 10. Ulpian says: "A testament is the lawful attestation of our mind, solemnly made for this purpose, that it may have force after our death." Fragments, tit. 20, 1.

⁴³ From this fideicommissum there must be distinguished the so-called family fideicommissum, which cannot be constituted without the consent of the government and which consists in a determinate part of a fortune that cannot be alienated from the family.

276. Form of a testament. In different regions different norms have been established for the making of testaments. The individual codes must be consulted. Since difficult cases concerning the validity and mode of testaments occur not rarely, the confessor should endeavor to learn at least the principal forms of testaments in force in his country. Only a few divisions or forms of testament are given here:

1. An ordinary and extraordinary testament. The first is that which is legally completed in ordinary circumstances. The latter is that which by privilege, and therefore is also called a privileged testament, is recognized as legal in extraordinary circumstances, e.g., a testament made by soldiers on a military expedition, or during an epidemic, or if a notary or judge cannot be summoned, etc.

2. A written, nuncupative, and holographic testament. A written testament is sometimes understood to be that which is written by a notary or judge according to the legal forms and is signed by the testator. A nuncupative testament is that which is established orally by the testator before witnesses.⁴⁴ A holographic testament is that which has been written entirely in the testator's own hand, signed with his name and surname, and marked with the addition of the place, year, month, and day. Several modern laws admit a holographic testament, e.g., German, French, Austrian, Swiss, Italian, Spanish law, etc.

3. A testament is called legal if all the norms required for the legal validity of the testament have been observed; otherwise it is an illegal or informal testament and is declared invalid by the civil judge.

⁴⁴ Cf. German Civil Code § 2250; French Civil Code art. 981; Swiss Civil Code art. 506.

277. Value of an informal testament. The most grave question concerning the value of an informal testament is answered briefly as follows:

1. If the mind of the testator is certain, every informal testament before the sentence of a judge can be regarded as valid. Thus the truer and more common opinion. The reason is that the faculty of making a testament arises primarily from natural law, while civil laws seem to decree the rescindability rather than the very nullity of such testaments. But if the civil law certainly and clearly determines that informal testaments are not only rescindable but also wholly null from the beginning, then assuredly this has force also for the forum of conscience. Billuart⁴⁵ writes excellently: "Laws invalidating less solemn [i.e., informal] testaments are not received by common usage to the extent that one who possesses through such a testament is despoiled before the sentence of a judge.... For whom will you find who voluntarily gives up that which he possesses by title of a less solemn testament or other contract, without force or fraud, while it is claimed by no one?" Hence one who received something from an informal testament can retain it and is not bound to warn the intestate heir concerning the defect of the testament. Nevertheless, it is not lawful to use any fraud to deceive the judge or the intestate heir, e.g., by supplying a signature or designation of the day or year which was omitted through forgetfulness. For by such fraud others are unjustly prevented from exercising their right of seeking rescission of the testament. But if someone by such fraud really prevents another from being able to use his right, he is bound to restitution, according to the more common and more probable opinion.⁴⁶

2. After the sentence of the judge, testaments of this kind are invalid even in conscience; indeed, anyone can licitly seek their rescission, provided, however, that there is question of testaments for profane causes. The reason is that these invalidating laws are founded on the presumption of common danger. But laws founded on the presumption of common danger bind in conscience. Hence Billuart⁴⁷ rightly adds: "Who is there who restores that which he obtained by the sentence of a judge against the disposition of a less solemn testament or other contract?"

3. If there is question of a testament for pious causes, i.e., for the good of the Church or the salvation of souls, it is disputed whether it is valid in conscience even if the sentence of a civil judge has invalidated it because of a defect. The more common opinion affirms this, both a) because testaments for pious causes are considered as sacred things which are not subject to civil laws, and b) because the Church has the right to acquire temporal goods independently of the civil government and civil laws. This opinion is confirmed from c. 11, X 3, 26 and from the response of the Sacred Penitentiary of January 10, 1901, declaring: "The practice of this Sacred Tribunal is that, generally, pious legacies are regarded as valid and obligatory in the forum of conscience. Heirs, however, are readily admitted to a composition with the Church or the pious cause to which the legacy was made."^47a A probable opinion denies this, and it is held especially by Cardinal D'Annibale,⁴⁸ Daelman,⁴⁹ Haine,⁵⁰ and Retzbach.^50a In practice Archbishop Kenrick of Baltimore⁵¹ prudently says: "For the rest, I would scarcely dare deny the sacraments to one unwilling to pay those things which lack the protection of civil law." This is approved by Tanquerey,⁵² and seems to conform to the Code of Canon Law, which establishes in canon 1513, § 2: "In last wills for the good of the Church, the solemnities of civil law are to be observed if this can be done; if they have been omitted, the heirs are to be admonished to fulfill the will of the testator."⁵³ Therefore, at least after the Code of ecclesiastical law obtained force, there no longer seems to be a strict obligation of justice to observe an informal testament for pious causes which has been declared invalid by civil law. Thus, at least, if the civil formalities prescribed in making a testament could have been observed and nevertheless were neglected. For greater security, however, it is preferable to seek from the Sacred Penitentiary a composition which, by its own testimony, is readily obtained.⁵⁴

⁴⁵ De contract. diss. 2, a. 5, § 3.

⁴⁶ Cf. Dominic Soto, De iure et iust. l. 4, q. 5, a. 3; Bañez, Comm. in 2, 2, preamble to q. 62; Billuart, l.c.; and, among the moderns, Tanquerey, De iust. n. 697ff.

⁴⁷ L.c.

^47a Collectanea de Prop. Fide II, n. 2099.

⁴⁸ Summula theol. mor. II, n. 339.

⁴⁹ De iust. P. 2, q. 2, obs. 8.

⁵⁰ De contract. q. 53.

^50a Cf. A. Retzbach, Die Verbindlichkeit formloser letztwilliger Verfügungen zu frommen Zwecken, Freiburg, 1917, p. 47f.

⁵¹ Theol. mor. tr. 11, n. 37.

⁵² De iust. n. 700.

⁵³ The words in canon 1513, § 2, "the heirs are to be admonished," are preceptive and not merely exhortative, as the Pontifical Commission declared on February 17, 1930 (Acta Ap. Sed. XX, 196). Canon 2348 establishes: "One who has obtained a legacy or donation for pious causes, whether by an act inter vivos or by testament, even through a trust, and neglects to fulfill it, shall be compelled to do so by the Ordinary, even through a censure."

⁵⁴ Cf. above, n. 271, and Linzer theol.-prakt. Quartalschrift LXV (1912), 841; LXXVII (1924), 299.

278. Acceptance of a testament. No one is bound to accept a testament made for his own advantage. I say, however, made for his own advantage, for sometimes civil laws prohibit, e.g., tutors from refusing testaments made for their wards.⁵⁵ When someone has accepted the entire inheritance of another, he is bound also to pay all the debts of the deceased, although these exceed the resources of the inheritance; e.g., sons accepting the paternal inheritance must also pay all the real debts of the father. Thus at least in the external forum, for authors commonly excuse the heir from this obligation in the forum of conscience,⁵⁶ and this even after the sentence of a judge.⁵⁷ But in order to avoid so harsh an obligation, civil laws are wont to grant the universal heir time for deliberating, e.g., one or three months, whether he wishes to enter upon the inheritance purely or "under benefit of inventory," i.e., not beyond the value of the inheritance.

⁵⁵ Cf. German Civil Code § 1822, 2.

⁵⁶ Cf. St. Alphonsus, Theol. mor. l. 1, n. 150.

⁵⁷ Cf. Lehmkuhl, Theol. mor. I, n. 1398.

279. Revocation of a testament can always be made freely by the testator, unless, however, a so-called "inheritance pact"⁵⁸ has been made, such as is in force in some regions, e.g., between husband and wife, between brothers or sisters, etc. Even the testator's promise not to change the testament is no obstacle to a reasonable change; indeed, neither is an oath added to it, at least if there is question of a testament for profane causes. The reason for all these things is that revocability pertains to the very essence of a testament. On the part of the heirs, civil codes sometimes permit the contesting of a testament, especially if it lacks legal form.

The testament of a deceased person, or rather his last will, can be commuted for a reasonable cause by the civil prince, as possessing high dominion over the goods of subjects, if there is question of merely profane causes; by the Supreme Pontiff, if there is question of pious causes. For testaments concerning pious causes are considered as sacred things accepted by God and are equated with vows and oaths.⁵⁹ Bishops and other prelates cannot by their own authority change last wills, unless, however, the testator himself has expressly granted this;⁶⁰ they can also by their own authority interpret testaments. Those cases in which, according to several authors,⁶¹ a bishop would be able by his own authority to commute the last wills of a testator are, according to present practice, better resolved by the authority of the Supreme Pontiff, who judges pious legacies through the Sacred Congregation of the Council.⁶² Such cases are: 1. if money bequeathed for some use is not sufficient;⁶³ 2. if the thing bequeathed cannot serve the destined use because of an impediment of law or fact; 3. if the legacy was made for a use not so necessary; e.g., if a legacy was made for buying a chalice and the chalice is no longer so necessary, while, on the contrary, the church greatly needs chasubles.

The Sacred Congregation for the Propagation of the Faith in 1807 explained the whole doctrine concerning the commutation of a last will for pious causes excellently in these words: "The wills of the faithful can indeed be commuted by the authority of the Apostolic See, ... but commutations ought not to be made except for a just and reasonable cause, so that the Supreme Pontiff may be regarded as, and may be, a faithful and prudent administrator. Since the same Supreme Pontiff is bound by this law, who alone has the power of effecting commutations of this kind, it belongs to him to know and judge concerning the cause which intervenes in individual cases."⁶⁴ From these words two things clearly follow: 1. only the Supreme Pontiff can commute last wills; 2. not even the Supreme Pontiff can do this except for a just and reasonable cause.

Note. Ordinaries are the executors of all pious wills, both in prospect of death and inter vivos; and therefore other executors, after discharging their office, must render an account to the Ordinary.⁶⁵

⁵⁸ Inheritance pact (Erbvertrag). Cf. German Civil Code § 2289ff.

⁵⁹ Cf. Council of Trent, sess. 22, c. 6, De reform.

⁶⁰ Code of Canon Law, canon 1517, § 1.

⁶¹ St. Alphonsus, l.c., l. 3, n. 931; Aertnys, Theol. mor. l. 3, n. 424; Noldin, De praeceptis n. 556.

⁶² Constitution Sapienti consilio, June 29, 1908; Acta Ap. Sedis I, 11.

⁶³ Cf. Code of Canon Law, canon 1517, § 2.

⁶⁴ Collect. de Prop. Fide n. 689.

⁶⁵ Cf. Council of Trent, sess. 22, c. 8, De reform.; Code of Canon Law, canon 1515.

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.

I say, 1st. All who have the use of reason can be testators, except those who are invalidated by positive law. Moreover, the following are invalidated:

1st. From Roman law: deaf-mutes from birth, the non-pubescent, prodigals, those condemned to civil or natural death, and also professed religious.

2nd. From our law: only minors and wives. Nevertheless, as regards minors, it must be noted that they can make a testament concerning movables if they are pubescent, although in some States a restriction has been placed in this matter by the addition of four years, so that males can make a testament concerning movables only in the eighteenth year and females in the sixteenth year. Besides, the restriction by which wives are held has been greatly diminished in some States, provided nevertheless that certain formalities be observed. - Cf. Kenrick, n. 36. - Kent, Comment. vol. 4, nn. 505 and 506. - Devereux, lect. 68, nn. 6 and 8. - Wells, Every Man, etc., p. 93.

In several States the age for making a testament is the twenty-first year. Males and females of eighteen years can make a testament in the States: California, Connecticut, Idaho, Montana, Nevada, Oklahoma, North Dakota, South Dakota, Utah, Hawaiian Islands. Females only at the same age, that is, eighteen years, in Colorado, Illinois, Maryland, Missouri, Washington, Wisconsin, District of Columbia. Concerning property, as it is commonly called, personal, and concerning this only, persons of eighteen years can dispose in West Virginia, Virginia, Rhode Island, Oregon, Missouri, Arkansas, Alabama; in Georgia a person who is in the fourteenth year; in Louisiana a person who has completed the sixteenth year is competent to make a testament. In Colorado persons of seventeen years, and in New York males of eighteen and females of sixteen years, can dispose concerning personal property. Most States require two witnesses, but Connecticut three, Massachusetts three, Maine three, New Hampshire three, South Carolina three, Vermont three. The World Almanac, 1914.

I say, 2nd. All human beings who are endowed with life can be instituted heirs, provided they are not excepted by positive law. Moreover, the following are excepted:

1st. From Roman law, those condemned to death, both natural and civil, traitors, and their spurious children under certain restrictions.

2nd. From our law, witnesses of the testament itself, unless they are creditors; aliens as regards immovable goods; and colleges (corporations), unless they have a special faculty as regards this matter. Cf. Kent, Comment. vol. 4, nn. 506 and 508. Devereux, loc. cit. nn. 12 and 14.

Question 1. Of how many kinds are heirs distinguished according to the diverse laws?

Resp. There are three kinds of heirs: 1st, necessary, who cannot be excluded by the testator; 2nd, legitimate, who by law succeed from intestacy; 3rd, voluntary, who namely are called to the inheritance from the free will of the testator. - Heirs by testament are also distinguished, who namely have been designated by testament, and heirs from intestacy, if by law they succeed to the deceased who made no testament or an imperfect one.

Question 2. Who are necessary heirs, and who are legitimate?

Resp. 1st. Necessary heirs, from natural law, are the nearer blood-relatives and especially children, not however so that a father is bound to leave all his goods to children or to other nearer blood-relatives, even those not needy or disorderly, but insofar as by force of the piety with which he ought to regard them he is held to turn away their need and other evils. But from Roman law necessary heirs are all relatives in the direct line, namely: 1st, descendants in the nearer degree; 2nd, in their default, ascendants both on the part of the father and on the part of the mother in a likewise nearer degree. Finally, from our law, except the wife, to whom the legitimate portion or third part of immovable goods is owed, none are recognized as necessary heirs. Cf. Kent, Comment. vol. 4, n. 537, note (a). - Devereux, lect. 68, n. 36.

Resp. 2nd. Legitimate heirs are all blood-relatives of the nearer degree, even in the collateral line up to the 10th degree from Roman law, that is, the 5th as regards canonical computation. But from our law there is great variety in this matter, and each State has its own laws; these nevertheless agree as regards substance. Several rules are handed down by Kent, of which the sum is this: that the inheritance first descends to the children and their descendants even to the more remote degree, then comes to the parents, then to brothers and sisters and those who represent them, afterwards to grandparents, finally to the brothers and sisters of the parents of him who has died from intestacy. - But you may see those rules, if you please, in Kent, Comment. vol. 4, throughout the whole lect. 65, or a compendium of this at Devereux.

Question 3. What are the rights and obligations of heirs?

Resp. Any heirs whatever can renounce an inheritance according to the axiom: No one is heir unless he wishes, and as Kenrick says: "No act is required by which someone renounces an inheritance." - But with the inheritance now accepted, heirs succeed into all the rights and burdens of the deceased, because they represent his person, except only those things which, by their nature or by pact, were affixed to the person of the deceased. Hence they acquire by full right the dominion of the goods of the deceased, take upon themselves his obligations and debts, and ought to fulfill his will in legacies. - As regards the manner of paying debts left by the deceased, let each pay according to the proportion of his hereditary portion. Moreover, an heir can accept an inheritance under benefit of inventory, namely so that, once an inventory of goods has been made according to legal form, he is not obliged beyond the resources of the inheritance. - Cf. Kenrick, tract. 10, nn. 89 and following. - Kent, Comment. vol. 2, part 6, lect. 65, n. 422.

Question 4. Can necessary heirs be disinherited?

Resp. From Roman law, according to which children are admitted as necessary heirs, they can be disinherited by the authority of the father alone in the following cases: 1st, if a son lays hands upon his father or treats him contemptuously; 2nd, if he is his accuser or witness in criminal causes; 3rd, if he has relations with his father's wife; 4th, if he is unwilling to furnish surety for liberating his father from prison; 5th, if he has prohibited his father from making a testament; 6th, if a daughter, after refusing honorable marriage, lives wantonly. But among us, where children are necessary heirs only from natural law, the aforesaid causes and several others of the same kind seem a fortiori to suffice for disinheriting them.

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. There is a threefold kind of heirs. Some are necessary, who without lawful cause cannot be deprived of the inheritance. If a testator pass these over unnamed, the testament by common law is null. Others are heirs ab intestato, who succeed a deceased person without a testament. In the third place are extraneous heirs, who are freely instituted heirs by the testator.

II. QUESTION I. How do sons succeed parents, and parents sons? ANSWER. Lawful sons succeed necessarily to their parents in the lawful portion, which comprehends a third part of the goods, if the sons be four or fewer. If more than four, the lawful portion includes the half of the goods. Of the remaining goods the father can freely dispose. In this also various laws of nations obtain.

III. The order to be observed in succession is that the nearer succeed to the stock: therefore, sons being alive, grandsons do not succeed. Among sons the inheritance is divided by heads. A father has three sons, one of whom dies, leaving several sons. These sons succeed to the inheritance of the grandfather or grandmother not by heads, but by stock, because all together represent one father; and therefore they succeed to the portion which was owed to their father, to be divided among the brothers. Parents cannot deny the lawful portion owed. Similarly ascendants succeed to sons when these lack descendants, the order of nearness being preserved. Brothers and sisters, ascendants and descendants being removed, are not necessary heirs, and much less the other blood-relations.

IV. QUESTION II. For what causes can sons be disinherited by parents, and parents by sons? ANSWER. First, if a son lay impious hands upon his parents, a mortal fault intervening. Otherwise if he did it that he might defend himself or his country. Second, a grave contumely inflicted upon a father by words or deeds. Third, if a son accuse a parent of a crime for which the penalty of death is to be inflicted, heresy or the crime of treason or the betrayal of his country excepted. Fourth, if a son be a sorcerer, or a partner of sorceries. Fifth, if a son have plotted his father's death, even the effect not following. Sixth, if a son knowingly have known his father's wife or concubine. Seventh, if, his father being held in prison, the son were unwilling to go surety for him. Eighth, if a son hindered his father from drawing up a testament, or from revoking one drawn up. Ninth, if a daughter repudiated a dowry that she might live lasciviously. Tenth, if a daughter married a slave not free. Eleventh, if sons were unwilling to care for demented parents. Twelfth, if sons were unwilling to free captive parents. Thirteenth, if Catholic sons apostatized from religion. Similarly sons can disinherit ungrateful and wicked parents.

V. QUESTION III. What is to be said of heirs ab intestato? ANSWER. He is called an heir ab intestato who by reason of nearness of blood succeeds the deceased. And these are sons, grandsons, great-grandsons, and so forth. If they be sons, they succeed by heads; if grandsons, by stock. Descendants being removed, ascendants succeed, the order of nearness being always preserved. Ascendants and descendants being removed, collateral blood-relations succeed, whether they be agnates or cognates. If you desire more, see Vol. VII, Book 9, dissertation 5.

VI. QUESTION IV. What is vulgar substitution, pupillary substitution, and so forth? ANSWER. Vulgar substitution is that by which a man substitutes for an heir instituted by himself some other who is capable of testamentary succession. Pupillary substitution is that by which a father substitutes another heir for a son dying before puberty. Exemplary substitution imitates pupillary substitution, inasmuch as a father can draw up a testament for a demented son. Fiduciary substitution burdens the heir, who is called the fiduciary, that he render the inheritance either entire or in part to another person, who is called the trustee. Reciprocal substitution is that by which instituted heirs succeed one another. Compendious substitution is that which comprehends several substitutions as regards diverse times.

VII. QUESTION V. How can valid testaments be revoked? ANSWER. A testator can at his pleasure revoke his own testament. Some contend that a testator who has sworn that he will not revoke his testament can lawfully revoke it without the fault of perjury. But this opinion is false, as authors commonly teach. For an oath concerning a lawful thing is to be observed. Many nevertheless contend that the revocation of the testament is valid, because the perjury affects the testator himself, but by no means makes the revocation invalid. But the more probable opinion to me is that the revocation is invalid, because by means of the oath the testator took from himself the power of revoking the testament drawn up.

VIII. A second testament furnished with all the solemnities by that very fact revokes the first. When two together draw up a testament in a single writing, one being dead, the survivor can revoke the testament as regards that which touches his own part of the goods. Since although the writing be materially one, there are nevertheless two testators. When a lord grants a faculty to another — say a wife to her husband — that he draw up a testament for her, this testator being dead, the wife cannot revoke the testament, because a testament is confirmed by the testator's death; if nevertheless the testator drew up the testament in his own name, as lord. For if he draw it up as a minister or commissary, not in his own name but in his lord's, then the lord can revoke the testament. The faculty granted by the lord to the one drawing up the testament is therefore to be looked to in these cases.

IX. QUESTION VI. What obligation have heirs? ANSWER. They are bound to pay all the debts of the deceased testator, unless they accept the inheritance with the benefit of law, that is, of an inventory: whereby it comes about that the heir is not bound to pay beyond the strength of the inheritance. While the inventory is being drawn up, the creditors cannot vex the heir. But if the heir within the interval prescribed by law has not made an inventory, or has not repudiated the inheritance, he is bound to pay all the testator's debts, even if they exceed the inheritance. Real debts, which accompany the inheritance, the heir is bound to pay; not so personal ones, which attach to the person. Besides the real debts, the heir ought also to fulfil the legacies.

X. QUESTION VII. What is the obligation of a testamentary executor? ANSWER. Testamentary executors are some universal, others particular. Those are they who are chosen when in the testament no institution of an heir has been made, that they may pay the testator's debts and distribute all the goods. These are to execute the testament as valid.

A TESTAMENT is defined from Ulpian, Leg. 1. ff. de testamentis: A testament is the just sentence of our will concerning that which one wishes to be done after his death, to which the Gloss of Accursius adds, and Bartolus, l. 1. ff. de testamentis cum directa haeredis institutione, which clause is intrinsic to a testament, for without it a testament does not subsist. §. Ante haeredes, Instit. de legatis, and l. 1. ff. de haeredibus instituendis, and the Doctors teach, cited in Fagundez, de contract. l. 6. cap. 1.; now, however, you except a testament for pious causes. This I gather from D. Bonaventure on chapter 4 of our Rule, at the end, where from that he gathers its immobility, since it is the last will; for if many testaments be present, only the last has force, although several codicils may be able to have force, because these do not dispose adequately of the whole right, but of certain parts. He has the same in the Dicta Tu. 1. cap. 1.

MOREOVER, a Testament is divided into the closed, and the open. A closed testament is that which is composed secretly by the Testator with his own hand, or another's, and with a notary, the witnesses being present and called, and ignorant of what it contains, and it is handed over for approbation. The open, which is also called nuncupative, is that which in the presence of the very witnesses is openly made and declared in words, and for this reason it is called open, and without writings, because although ordinarily it is put in writing, nevertheless it can subsist without writing.

TO COMPOSE a testament was instituted by the law of nations, although some solemnities have been imposed by the civil law. Thus the Doctors commonly assert: For before the civil law, in which the solemn manner of testaments is provided, existed, testaments already existed before. Thus Genes. 48. Jacob left to Joseph the city of Sichem, which he had taken by arms from the Amorrhite.

From which it follows that a Prince cannot justly take away from anyone a dominion acquired by testament, which he could do if it were of the civil law, as Clarus notes, l. 1. sent. §. Princeps, and l. 3. §. Testamentum, quaest. 2. at the end, and Fagundez l. 6. de contract. cap. 1. num. 10.

A CODICIL is defined, Instit. et C. de codicillis: It is the last disposition of the will, without the direct institution of an heir, as Molina notes, Tom. 1. de iust. tract. 2. disp. 124.

A LEGACY is a certain donation left in a testament, to be paid after the death of the testator by the heir, §. 1. Instit. de Legatis: of which in the following disputation.

A FIDEICOMMISSUM is a legacy which is committed to the faith of the heir, that it be rendered by him to another: Moreover it is called a fideicommissum, a species of the more urbane legacy; for it is made by the words, I wish, I ask, but it has no less force than I command, etc., as is gathered from Leg. et fidei commissum, ff. de Legatis 3.