Formalities and capacity for wills

A WILL is a legal declaration of a person’s intentions which is to take effect after his death. In English law a will is not necessarily a disposition of property; the appointment of a guardian for one’s children, or of an executor who will distribute the estate according to law, is a will if accompanied by the proper legal formalities. Ordinarily, indeed, a will is a disposition of property, but it frequently contains other provisions as well, as to the place of one’s burial and other matters.

A will is not, strictly speaking, a contract, for the consent of the beneficiaries under it is not required for its validity, but it partakes of the nature of a unilateral contract, and is usually treated as such by theologians.

Lawyers and theologians are by no means agreed as to the source whence a will derives its effect. Some hold that the power of testamentary disposition is derived from the law of nature, inasmuch as there is nothing to prevent a man from doing some act and at the same time suspending its effect until after his death. Others maintain that the will of a person cannot produce its effect when that person is already dead; no disposition of property can be made by a human will that has ceased to act as far as outward manifestation is concerned. Nor does a will produce its effect until the testator be dead. They conclude, then, that the power of testamentary disposition is derived from positive law. We may, perhaps, hold as certain that the law of nature gives owners of property the right to dispose of it in some way in view of death, but that it does not determine of itself the method of disposition by will. This precise method is a result of the determination of the natural by positive law.

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).

Those who have not yet attained the use of reason and persons of unsound mind are incapable of making a will by the law of nature. Religious who are solemnly professed are incapable of making a valid will by the law of the Church. Minors under the age of twenty-one cannot make a valid will, according to English law.

A will that has been made under duress and undue influence will be set aside if appeal be made to English courts. Women married after December 31, 1882, can by will or otherwise dispose of their separate property whether real or personal, and women married before that date can by the Married Women’s Property Act, 1882, dispose in the same manner of all property which accrues to them after that date.

814. • Definition. A testament is a legitimate disposition concerning those things which someone wills to be done with his goods after his death, with the direct institution of an heir. - St. Lig., n. 919. - Or from Gallic Law: It is an essentially revocable act by which the testator disposes of his goods for the time that will follow his death ¹.

¹ But from Roman Law: "A testament is the just sentence of our will concerning that which someone wills to be done after his death." From Modestinus, L. 1, ff. Qui testamenta etc.

Division. A testament is distinguished in various ways:

1. Solemn, in which all the conditions prescribed by laws are observed. But it is twofold: 1. Closed, which, signed with a seal, is handed over to be subscribed by seven witnesses, suitable, male, puberes, etc., with whom the testator subscribes, if he can; but if he cannot, an eighth witness must accede; 2. Open, which is made before seven witnesses, whether by open writing or by living voice ². - More things among the Jurists.

² More received and more congruent is the distinction into written and nuncupative testament. For although common usage brings it about that this latter is called open, but the former closed (see Lugo, disp. 24, n. 2), nevertheless it is not necessary that any testament whatsoever in writing be closed, as below also is sufficiently gathered from the Author's context.

2. Privileged, which is valid without solemnities: such is a testament made by a soldier, or by others in time of plague, or the remaining circumstances of this sort.

1. Holograph, which is written entirely by the hand of the testator, with indication of the year, month, day, and addition of the name.

2. Public, or solemn, which is written by one notary before four male witnesses, puberes, etc., or by two notaries before two witnesses (Art. 971).

3. Mystic or secret, which the testator, closed and signed with a seal, hands over to the notary before six witnesses, asserting that this is his testament written by himself or by another and subscribed by himself. This attestation must be inscribed upon the codex of the testament and subscribed by the notary, witnesses, and testator. If the testator could not subscribe the testament, mention of this must be made, and another witness is added besides the six required (Arts. 976, 977).

815. • In order that a testament be firm and valid, it is required: 1. that it have the conditions required for gratuitous contracts, and especially free and spontaneous consent; 2. that the disposition of goods be made according to the reservation or legitimate portion assigned by law to the heirs; 3. that it not be made by one incapable of testating, nor in favor of one incapable of receiving, or of succeeding to the rights of the deceased; 4. that the substantial formalities prescribed by law be observed.

816. Questions. - It is asked, 1. Whether the faculty of testating arises from natural law, or only from civil law?

I reply. According to the more common and more probable sentence, it is to be traced primarily to natural law, because such is the common persuasion, which holds last wills as something sacred, and because the right of testating precedes every civil law. For from natural law each one can dispose of his goods as he wishes, even after death, and this is a private right. But the State also has its rights, and among others the right of prescribing norms concerning contracts; this right is natural, inasmuch as it is necessary for the good of society. But if there is a collision of rights, the private right, as lower, must yield. - See the things to be said below, q. 4.

It is asked, 2. What sort of witnesses are required in testaments?

I reply, 1. From Roman Law they must be males, puberes, free, not deaf, not mute, not blind, not intestable by law ³, not heirs from the testament, nor domestics of the testator or heir; nevertheless legatees are not excluded. - St. Lig., n. 919.

³ Those are called intestable by law who according to the laws do not have the right of giving testimony.

I reply, 2. From Gallic Law are required males, majors, subjects of the State, enjoying civil rights, not clerks of the notaries who draw up the act, not legatees or heirs, nor their blood relatives or relations by marriage within the fourth inclusive degree, that is, within the second according to canonical computation for the transverse line. Nevertheless, in a mystic testament legatees or their relatives are not excluded. - Arts. 975, 980.

817. • It is asked, 3. What things are required for validity in a holograph testament?

I reply. Three things are required and suffice, namely: 1. that it be written entirely by the proper hand of the testator; 2. that the day, month, and year in which it was drawn up be added; 3. that the proper name of the testator be subscribed in the form of a chirograph at the foot of the testament and in whole letters. Thus from art. 970. Moreover: 1. The addition of the day, month, and year can be made by arithmetic marks and placed in any part of the testament, but it is safer to write it out in whole letters; 2. the inscription of the place where the testament is drawn up is judged by no means necessary, for from art. 999 a testament is valid wherever it has been made; 3. any paper suffices, although not sealed; if nevertheless the matter is carried before a judge, a fine will have to be paid by the heir (30 fr.); 4. a holograph testament, before it can be put into execution, must be presented to the judge in the Tribunal of first instance; but the judge, after sufficient examination, will order that it be kept with some notary (art. 1007). But this form is altogether accidental. - See Cases, n. 829 and following.

It is asked, 4. Whether testaments for profane causes, destitute of legal forms, are valid in the forum of conscience?

I reply. There is a threefold probable sentence, as was said above, n. 786, generally concerning contracts drawn up apart from the prescriptions of law. Therefore the first sentence admits that testaments of this kind can be held valid according to natural law. - The second sentence teaches that by force of positive law they are to be held wholly void. - The third sentence pronounces that the possessor must be favored until the matter has been decided by the judge ⁴. And this third opinion, according to St. Lig., n. 927, is to be held in practice before the rest. But when a judicial decree intervenes, according to the sentence of all, one must adhere to it. - See Cases, n. 857.

⁴ Concerning this third sentence, see the things noted above (at n. 786).

818. • It is asked, 5. Whether testaments for pious causes are valid if they lack legal forms?

I reply affirmatively, and this sentence is most common and certain: 1. because it is clear from Canon Law, Decret., book 3, title 26, ch. 2, etc.; 2. because pious causes pertain to the Church and are subject to her jurisdiction. But the Church is free and immune from civil power in all those things which are directly subject to her jurisdiction. Wherefore it was thus established by the Council of Trent: "Let Bishops, also as delegates of the Apostolic See, in cases conceded by law, be executors of all pious dispositions, both in last will and among the living." Sess. 22, ch. 8, De Ref. - Thus St. Lig. - Less. - Ronc. and others. - The Sacred Penitentiary, being questioned several times, replied that this sentence must be adhered to.

Therefore the probability of the other opinion does not appear, which otherwise even its patrons reduce almost to nothing in practice. For they think that pious legacies of this kind are valid if it is reasonably presumed that they had been destined both for fulfilling restitution and for prayers for the soul of the deceased.

Nevertheless I add that the Confessor, having regard for the ignorance of the faithful, who often with difficulty persuade themselves that the aforesaid assertion is true, for the most part ought to leave them in good faith ⁵. But if he is asked, as was said above, he will reply. - See Cases, n. 1859 and following.

⁵ This doctrine rests on the common principles concerning the opportunity of warning or not warning penitents, even when obligations of justice are at issue.

819. Cases. - 1. Leander accepts from Liborius, his familiar friend about to depart from the living, a notable sum of money, after the manner of a gift from hand to hand, as they say. When Liborius has died, Leander, doubtful and uncertain whether he can keep the gift in safe conscience, does not know. What will the Confessor reply to one asking? I reply. There is nothing for which Leander should doubt concerning the value of the donation, namely that it is valid as a donation among the living. Make exception: 1. unless the donation evidently injures the right of the heirs; 2. unless the donee is incapable ⁶ of accepting the donation. - Gousset, n. 796, etc.

⁶ Understand: unless he is incapable also in the forum of conscience.

2. Polydorus, dying, says to Paul, the natural heir: Promise me that you will pay these legacies. But Polydorus, trusting in the promises of the heir, abstains from drawing up or changing the testament, or from inscribing the same legacies. Paul, bidding farewell to his promises, refuses to pay the legacies because they were not inscribed in the testament. What is the law? - I reply. From natural law Paul in the forum of conscience is held to paying all the promised legacies, notwithstanding the defect of forms. The reason is: 1. because he accepted the testament only on that condition; 2. because by his promise he impeded the drawing up or changing of the testament.

3. Gabinus, heir from an informal testament, accepts and retains the inheritance as legitimately acquired for himself, but abstains from paying the legacies because of the defect of form in the act of the testator. What must be thought of him? - I reply. How unjust and ridiculous such a way of acting and reasoning is, is clear and evident from common sense. - Voit, De Conscientia, n. 104. - Elbel, De Consc., n. 190. - LaCroix, book 1, n. 573.

4. Anatolius, after making a holograph testament, dies before he could subscribe it. Sabinus, the heir named in this testament, simulates the subscription of the testator so well that it was truly seen as having been made by him. Nevertheless, when suspicion of fraud had arisen, the testament had been brought to the judicial forum, and was declared valid by the judge. What judgment? - I reply. Sabinus is held to restitution, because through fraud he vindicated the inheritance for himself; for, the fraud being removed, certainly by sentence he would have been excluded from the inheritance. Therefore the sentence ought not favor Sabinus, since it rests on a false fact.

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.

687. Socialists deny the right of making a testament, since they reject the legitimacy of private dominion.

Concerning the origin of that right, there is keen dispute among theologians and jurists. (a) Some say that it arises from natural law, both because it has been in use among various nations from the most remote times, and because it seems to be morally necessary for the good of society, that the industry of men may be fostered.³ (b) Others, on the contrary, teach that the faculty of making a testament must be derived from civil law; for, if natural right alone is considered, the transfer of dominion through testament is invalid, since dominion is transferred only after death, that is, at a time when the testator has already lost the right of dominion, since death dissolves all rights.¹ (c) Whence others, proceeding by a middle way, contend that the faculty of making a testament is indeed founded in natural law, but does not receive full force except from civil law;² whence it follows that it cannot be taken away by positive law, but only restricted. - What we think the following thesis will declare.

³ Grotius, l. II, c. VI, n. 14; Wolf, Instit. juris nat., § 927; Molina, disp. 134, n. 12.

¹ Puffendorf, l. IV, c. 10, n. 4-8; Zallinger, Instit. jur. nat., § 120; Pothier, op. cit., c. I; Beusch, cap. I, n. 89.

² Carriere, n. 498; Taparelli, Essai de Droit naturel, Paris, 1875, n. 787.

688. Thesis: The right of making a testament flows from natural law, insofar as it is the legitimate complement of the right of private dominion.³

³ To understand the thesis rightly, one should see what we said above, n. 74, on the right of private dominion.

It has already been demonstrated above (n. 74) that private dominion, permanent and exclusive, flows from natural law, and in the present state of things is morally necessary; but the right of making a testament is nothing other than the legitimate complement of private dominion, and for the same reasons is morally necessary in the present order of things: (a) it is the complement of private dominion; for dominion of this kind, as being exclusive and permanent, includes the right of disposing of one's thing at any time, and indeed in perpetuity, and therefore the right of disposing of one's own goods before death, and for the time following death.

689. (b) Besides, such a right is morally necessary for the common good; for unless a man could freely leave his goods to sons, relatives, connections by marriage, or friends, he would for the most part indulge in idleness and pleasures as soon as he had sufficiently provided for his own necessities; while on the contrary, if he can leave his wealth to others dear to him, he will not cease to produce new things and to increase riches, so that he may be able to assist the future necessities of relatives or friends.⁴ In reality, man, desirous of surviving in others and through others, longs to leave lands, houses, and other wealth to those who are most beloved to him, and on this account works assiduously and diligently, that he may lavish something of himself upon them and contribute to their happiness. Now the whole society receives no small advantage from these efforts, by which common wealth is greatly increased.

⁴ "Numerous in this world, let us say it to the honor of human nature, are the men who work and who save less for themselves than for others. If you force them to think only of themselves, they will work less and spend more. What riches in this case thrown into unproductive consumption by a broader manner of life! What years withdrawn from productive labor by a premature retirement!" (Ch. Gide, Principes d'Economie politique, p. 421.)

Moreover, if the right of making a testament is taken away, the goods of the dead either become the property of the first occupant, or are devolved to the State: in the former case, there will be a most bitter struggle among citizens for occupying these ownerless goods, and therefore the greatest disturbance; in the latter case, there will soon arise all the evils which it was proved above (n. 93-98) would follow from collectivism.

690. Difficulties are solved. (A) Some jurists contend that a transfer of dominion cannot be made through testament, because there is not present a simultaneous consent of the testator and the legatee: for the testator is already dead when the legatee accepts his goods.

Some respond that the consent of the testator perseveres virtually after death, or that the acceptance of the legatee is rightly presumed before the death of the testator; but these responses are rejected by many as having little force.

This solution seems more probable to us: simultaneous consent is indeed required for the validity of a contract, but not for the validity of an act, which is called a testament; moreover, a testament is as it were a conditioned donation, which will have force as soon as the legatee accepts it; it can therefore be repudiated, and then it will have no force; but if it is accepted, it then becomes altogether firm. - Besides, if, considering natural law alone, a donation of this kind did not have full force, civil authority can supply for natural law, and can attribute legal force to an act which brings such great utility to the good of society.

691. (B) But socialists contend that by the right of making a testament the idleness of children of families is fostered, and the natural equality of men is destroyed.

Resp. (a) That there are some children of families who indulge in idleness and lust because they expect a fat inheritance, sad experience surely establishes; but this is an abuse, which neither always nor necessarily follows from the right of making a testament; and therefore the abuse must be removed or at least diminished, but the very right of making a testament is not on that account to be denied.

Indeed, to all, especially to younger persons of either sex, the necessity and dignity of labor must be inculcated, not only by words and examples, but also by deeds, namely by giving more to those who labor more strenuously; and also by a manly education, by seeing to it that even the richer learn and exercise some art. Let it be shown to the same persons that idleness is injurious to God, who commands all, even the richer, to labor: "In the sweat of your face you shall eat bread¹... If anyone is not willing to work, neither let him eat²"; - dangerous to the idle themselves; for, Scripture testifying, "idleness has taught much evil³"; and moreover, experience establishes that those who indulge in leisure soon lose their wealth, because, as the negligence of the idle increases, the revenues from lands or from other capital gradually diminish; - harmful to society, since the republic is deprived of all those resources which those persons could have acquired by laboring. - By these and similar means, young men, even the richer, will for the most part be induced to work strenuously, and will become useful no less to society than to themselves.⁴

¹ Gen., III, 19.

² II Thess., III, 10.

³ Eccli., XXXIII, 29; cf. d'Hulst, Confer. 1896, p. 264.

⁴ Not a few adolescents in France remain idle because they do not wish to exercise public office under leaders most hostile to religion; but are there not countless arts wholly independent of the State, in which, by exercising themselves, they may serve religion and the fatherland at the same time? Cf. V. Bettencourt, Du Choix d'une carriere independante, Paris, 1903.

692. (b) But the equality which the socialists champion is impossible, as there is no one who does not see: "For there are in men, as Leo XIII rightly says, very many and very great natural dissimilarities: the abilities of all are not equal, nor skill, nor health, nor strength; and from the necessary difference of these things a disparity of fortune follows of its own accord."⁵ Moreover, experience establishes that this inequality is beneficial to society: for for the good ordering of the republic there must be diverse offices, to the performing of which citizens are impelled by disparity of fortunes; otherwise all would desire to command, no one would wish to obey.

⁵ Encycl. Rerum Novarum.

Moreover, the faculty of making a testament, while it favors a certain inequality, greatly contributes to the good of society; for the richer, who do not need labor for daily sustenance, can devote themselves to the liberal arts and promote intellectual and moral progress; they can more effectively amplify industry and commerce, by favoring new experiments, for which an abundant sum of money is desired; likewise they can erect many institutes useful to the whole community, and in many places really have founded them; and all these things are generally managed in a happier manner by private persons than by the State itself.¹

¹ P. Leroy-Beaulieu, Traite d'Economie Politique, t. IV, p. 282-296.

693. 1. State of the question. By natural and canon law nothing else is required for the validity of a testament, on the part of form, except that there be moral certainty concerning the last will of the deceased. But by civil law various conditions are required among various nations.

Nevertheless, in almost every nation, certain privileged testaments are admitted, which, even if made without legal forms, are valid, provided that the will of the testator is established; thus generally the testaments of soldiers, or of those journeying across the sea, or in a time when an epidemic disease rages.²

² For France, Cod. civ., art. 981-998; Planiol, III, n. 2725. But, even in these cases, it is safer to write a holographic testament whenever this can be done.

694. 2. Prescriptions of civil law in France.³ According to French law, a testament can be threefold: holographic, solemn, and mystic.

³ According to French law, two or more persons cannot make their testament by the same act, but each must declare his last wills by a special act. (Cod. civ., art. 968, in Supplem., p. 114*.)

(A) A holographic testament, from the words holos and grapho (I write the whole), is that which has been written entirely by the hand of the testator, with notation of the day, month, and year on which it was made, and with the subscription of the testator. Whence, for its validity, three things are essentially required:

(a) that it have been written entirely by the hand of the testator, with no word excepted. Interpositions (interlineations) added by the testator's own hand do not vitiate the testament; additions made in the margin are valid, even if they were not signed, if they were written at the same time as the testament itself; but if afterward, and they contain new dispositions, they must be signed, with inscription of the day, month, and year. Erasures (ratures) which are established to have been made by the hand of the testator invalidate only the dispositions which were deleted. - Interpositions or marginal additions made by another hand, but without the testator's knowledge, do not vitiate the testament; otherwise, if the testator consents.

(b) That the day, month, and year on which the testament was made be rightly designated, at the beginning or end of the document, before his own name is signed.

This indeed is required so that it may be known whether it was written by the testator at a time when he was capable of making a testament, and which of two or three testaments is valid. - It must be noted that not a few testaments are declared invalid, either because the designation of the day was omitted, or because it was not rightly or sincerely made. - Designation of place is not necessary, although it can be useful.

(c) That the testator place his name by his own hand at the end of the document; therefore dispositions placed below the signature are null, unless they are signed.

695. N. B. A holographic testament is indeed best, since it is liable to few causes of irritation; but, because it can easily be taken away and destroyed, it is expedient that at least two copies be written, one of which is handed over to the heir himself, and the other to a notary. - When the testator has died, the designated heir must present the testament to the president of the tribunal of the domicile of the deceased, who will establish that the testament is to be deposited with such a notary, and that the goods left to him by the testator are to be handed over to the heir.

Of itself no obligation exists of making a testament; but accidentally, this obligation can be present, so that lawsuits may be avoided and restitution may be made more safely, if it is necessary. But upon priests who have received Mass stipends and monies for instituting good works, the duty is incumbent of writing a testament as soon as possible, so that they may prudently dispose of their goods, and take care lest the things of others, which have been deposited with them, be seized by natural heirs.

696. (B) A solemn testament is that which is received by two notaries before two witnesses, or by one notary before four witnesses. It is dictated by the testator, written by the notary, and signed by the notary, the witnesses, and the testator.

(C) A mystic testament is that by which the testator disposes secretly of his goods, and which he offers closed and sealed to a notary, before six witnesses, declaring that this is his testament written and signed by his own hand, or written out by another and signed by himself.¹

¹ Cod. civ., art. 968-980, in Supplem., p. 114*.

697. 3. On the force in conscience of a testament lacking legal forms.² (A) If the matter concerns a testament or legacies pertaining to profane causes, the testament can be held as valid by the legatee until it is rescinded by the judge, according to what was said above, n. 618; but it is permitted to use no fraud for deceiving the judge, e.g., by supplying the designation of the day or year which was omitted, or by placing the name of the testator who died before he signed; and if he whom the testament favors has used fraud or another unjust means, he is bound to restitution toward the heirs who have the right of seeking rescission of the testament; for the public good demands that fraud be able to patronize no one.

² These principles also have force for donations.

But the natural heir can seek rescission of the testament, unless he explicitly promised the testator that he would not impugn the testament, and the testator, relying on this promise, abstained from changing the testament; for if he does not stand by the promise, by fraud he deprives the legatee of a right which the latter could legitimately have obtained; for the testator would have used other means for transmitting these rights to the legatee.

698. (B) But if the question concerns a testament for pious causes, by which namely goods are left to churches, monasteries, the poor, or pious works erected for divine worship or the relief of the poor, in honor of God, it was controverted whether in the forum of conscience it would have force, even after the sentence of a judge annulling that testament.

(a) The more common opinion affirmed this; for testaments for pious causes, which regard a supernatural end, are subject to ecclesiastical laws, not civil laws, since the Church has the right of acquiring temporal goods independently of the State, for pursuing her end; therefore testaments lacking civil forms remain valid in the forum of conscience, as often as they are valid from the principles of Canon Law, that is, as often as there is moral certainty concerning the will of the testator, e.g., by the concordant testimony of two witnesses, or by the writing of the testator.

The decrees of Pontiffs and the responses of Congregations prove this. Thus Alexander III writes back to the judges of Velletri concerning testaments for pious causes:¹ "Because causes of this kind concerning the judgments of the Church must be treated not according to the laws, but according to the canons, and for these, divine Scripture testifying, two or three suitable witnesses suffice, we command your discretion by apostolic writings that, when some such cause shall have been brought to your examination, you treat it not according to the statutes of the decrees." - This law indeed has by no means fallen into desuetude, as is clear from more recent responses of the Roman Congregations; thus the unmarried Eudorius had instituted Boniface as universal legatee through a testament clothed with due forms; but he had handed over to Boniface a private writing (invalid before the civil law), in which he manifested a pious will. But Boniface, when Eudorius had died, kept the whole inheritance without fulfilling the pious legacy. Having been questioned on this matter, the Sacred Penitentiary responded on June 23, 1844:¹ "Boniface is bound in conscience to fulfill the will of Eudorius certainly known, for the forum of conscience."

¹ Decretal. Greg. IX, lib. III, tit. 26, cap. II, p. 541, ed. Friedberg.

¹ In Acta S. Sedis, II, p. 369.

699. (b) Nevertheless a few theologians, such as Daelman, d'Annibale, Haine,² taught that this obligation was doubtful, and therefore not to be urged.

² Daelman, Tr. de Justitia, p. II, de Contractibus, q. II, obs. 8; d'Annibale, III, n. 70; Haine, q. 53, p. 214-218.

For the rescript of Alexander III indeed has force for the Pontifical territory, but not for the universal Church; and although it was inserted in the Body of Law, and thus extended to the universal Church, it has become obsolete in many parts of the Church, so that today the Church does not urge her right. - But the response of the Sacred Penitentiary does not settle the matter; for Boniface in the case was bound to fulfill the will of Eudorius not indeed by force of the testament, but by force of an innominate contract by which he had obligated himself to fulfill the pious legacies, once he was instituted universal legatee by Eudorius.

700. Practical conclusions. The Code has practically imposed an end to the dispute by establishing these things: (a) "In last wills for the good of the Church, the solemnities of civil law are to be observed, if this can be done; if these have been omitted, the heirs are to be admonished to fulfill the will of the testator." (b) "The wills of the faithful giving or leaving their faculties for pious causes... are to be fulfilled most diligently even as regards the manner of administration and expenditure of the goods..." (c) "Ordinaries are the executors of all pious wills both by reason of death and among the living... Clauses contrary to this right of Ordinaries, added to last wills, are to be held as not added." (Codex, 1513-1515).

But if pious legacies seem too onerous, heirs are easily admitted to composition with the Church; concerning this the Code, c. 1517, establishes the following: "The reduction, moderation, and commutation of last wills, which must be made only from a just and necessary cause, are reserved to the Apostolic See, unless the founder shall have expressly granted this power also to the local Ordinary. But if the execution of the burdens imposed, on account of diminished revenues or another cause, with no fault of the administrators, has become impossible, then the Ordinary also, after hearing those whose interest is involved, and preserving, in the best way possible, the will of the founder, will be able to diminish the same burdens equitably, except for the reduction of Masses, which always belongs uniquely to the Apostolic See."

Because priests themselves are not rarely asked about testaments and last wills, and errors are frequently committed which bring no slight damages to pious causes and to domestic peace, it is necessary that the moral theologian possess certain, at least elementary, notions about the present-day sanctions of laws concerning testaments and last wills.

I. Notion of a Testament. 1. Almost everywhere today, a testament is a juridical, solemn act, essentially revocable until death, by which someone attests what he wishes to be done after his death concerning his patrimony, whether the whole of it, or a part of it, or certain of his goods. As an act, not a contract, it receives force from the will of the testator alone; as solemn, it must be clothed with certain legitimate forms in order to be valid.

In Roman law the direct institution of an heir was essential. Under the name of codicil came an act by which someone established that certain things concerning his goods were to be carried out after death, without the institution of an heir. Often it was, as it were, a supplement of a testament. A trace of that distinction still occurs in the Austrian Code, which, § 553, calls a testament a declaration of last will by which an heir is instituted, while a declaration of last will without the institution of an heir is called a codicil. In the Brazilian Code, under the name of codicil comes a private writing by which secondary last wills are signified. In English law, a codicil is a writing in which changes of a testament are contained. The Dutch Code, art. 922, in its definition of a testament does not even mention goods: "A testament or last will is an act by which someone declares, in a revocable manner, what he orders to be done after death." In English law, no disposition of goods is necessary for the notion of a testament. A testament, Will, is a legitimate declaration concerning posthumous intentions.

2. A testament is everywhere a personal act: it cannot be made for someone by another. And certainly such substitution, if admitted indiscriminately, would often deceive the mind and will of him whose patrimony is at issue. Nevertheless, some Codes allow that parents make a testament for children who have not yet reached a certain age or who are mentally incapable. Such substitution, which Roman law had already admitted, is called pupillary substitution. It is admitted by the Portuguese Code, art. 1859 and 1861; Mexican, 3443 and 3444; Austrian, § 609, for the goods which the parents leave to the children.

3. In most Codes the individual testators are required to make separate testaments, and it is denied that the same testament can be conjointly made by two or more. Also rejected are dispositions which are made under the condition that the heir or legatee in turn should write the testator as heir or legatee in his own testament. Sometimes, however, joint testaments of spouses are permitted, as by the Austrian Code, § 583. More often in nuptial pacts, for example in Italian and French law, it is permitted that future spouses mutually leave to one another a part of the inheritance.

II. Form of a Testament. 1. Everywhere the ordinary form and the extraordinary form are distinguished, which latter is permitted only in certain circumstances. Those extraordinary circumstances are had in military testaments, in testaments of those navigating, in testaments in time of plague. There is also a Code, for example the Swiss, art. 506, which permits a special form when, on account of the absence of a public official and the impediment of the sick person, the ordinary form cannot be observed. But what must be well noted is that these testaments, when the necessity has ceased, must within a brief time be clothed with the ordinary form. It will be enough for us to speak briefly about the ordinary forms, and especially about the private form, since the official is solicitous for the right public form.

Almost everywhere there is had a private testament and an authentic testament, which can be public or secret, unless you prefer to say that the secret testament is of a mixed form. Not rarely, however, the form of a private testament is permitted only to those greater in age. Certain Codes admit a double form, public and secret, even for a private testament.

2. On the Form of a Private Testament. Generally, yet not universally, it is required that it be holographic. But the conditions which the holographic testament itself must satisfy vary accidentally.

In the Italian Code, 775, and the French, 970, it is required and suffices that it be written entirely by the testator's own hand, with a date indicating the day, month, and year, and therefore not necessarily the place, and signed by the testator. A signature made in the usual manner, even if it has something peculiar, as, for example, among bishops, plainly suffices. The signature is to be made at the end, or after the date. This is expressly required by the Italian Code and is safer in French law. Nothing else is required. Therefore no condition either of paper or of ink is required: even if you should write with chalk on a wall, that will suffice. - In Spanish law, 688, the holograph must moreover be written on stamped paper (bullata, timbre) with the stamp bearing the year in which the testament is made. And after the death of the testator, it must be presented within five years to the judge of first instance, under the sanction of nullity. Moreover, the depositary of the holographic testament must present the testament to the judge within ten days; otherwise he will furnish damages (art. 690). - In the Dutch Code it must moreover be deposited with a notary, who receives the testament before two witnesses; and it has its date from the day of deposit (980). By a private holographic writing with a date, one can only designate the executor of the testament, make provision concerning one's funeral, and bequeath clothes (982). - For the Austrian Code it is enough that the holographic testament be entirely written and signed by the testator: the indication of the date and place is not essential (§ 578). - The same obtains in the Canadian Code Q., 850-854. - In the Swiss Code the holograph must be entirely written by the testator, indicate the place, year, month, and day, and be signed (§ 505, Civil Code). - In the German Code, adults can make a holographic testament with indication of place and day (2231). - In the Brazilian Code, a private testament, besides being written and signed by the testator, must be read to five witnesses and signed by them (1645, 1648). Only secondary dispositions and the designation of an executor can be made by a particular writing with date and signature: this act is called a codicil (1651-1654). - The Mexican Code does not admit a private testament unless the opportunity of an authentic testament is lacking. It then requires a declaration made orally before five witnesses. Cf. 3535 ff. - In the Portuguese Code a merely private or holographic testament is ignored. - In English law, according to the Wills Act (1 Vict. c. 26, s. 9), a testament must be written and signed at the end by the testator or by some other person in the presence of the testator and under his direction, and that signature will be made or acknowledged by the testator before at least two witnesses simultaneously present, who, before the testator, will sign the testament. - In U.S.A. law the conditions vary. Some States admit a holographic testament without witnesses; others also admit testaments made orally before witnesses. In most States it is not necessary that the signature of the testator be placed at the end, but they admit that it be at the beginning or at the end. In most States the witnesses, who are required in number either three or two, must be conscious that a testament is at issue, while in some they can be ignorant of the nature of the instrument. The simultaneous presence of the witnesses who subscribe is necessary in few States. Nor is it per se necessary that the place and day be indicated, although that omission is dangerous.

Moreover the Austrian Code also permits a private nuncupative testament. It is enough that before three witnesses simultaneously present the testator declare his last wills. The counsel is added that the witnesses as soon as possible note in writing what the testator declared. Cf. § 585. - The Swiss Code, 506, permits something similar when, on account of imminent death, impeded communications, plague, etc., the ordinary solemnities could not be observed. Then it suffices that the testator declare his will before two witnesses. At once one or the other witness notes the matter, indicating the place, year, month, and day. Both sign the instrument and deposit it without delay with the judicial authority, or, if the testator is an active soldier, with an official who is at least a captain. But that testament loses all force after fifteen days from the time when the ordinary form could have been used (arts. 506-508).

3. On the Form of an Authentic Testament. A double form is distinguished. a) The public form. The testator before a notary, judge, or competent official and witnesses declares orally what he orders to be done with the goods after death. The official makes an authentic instrument concerning the matter, observing the legal solemnities. This testament is called nuncupative. In Germany a minor by birth cannot otherwise make a testament. b) The secret form. The testator approaches the competent official, hands him a wrapper, declaring before witnesses that his last wills are contained in it. This testament need not be written by the testator. It is enough that it be signed by him. Nor is even this required in every law.

4. Revocation of a testament can be explicit or implicit. Explicit revocation is made either by destruction of the private instrument, or by a clause by which, in another testament, every testament made before is said to be abrogated. Implicit revocation is made by a contrary disposition of a more recent testament. From this it is clear how important it is to know on what day the testament was made.

What can be done if the instrument of the testament has perished or has been lost must be sought from the positive laws.

III. On Succession Pacts. While some laws, for example those of Italy, France, and Belgium, excepting the faculty given to spouses of disposing of certain matters concerning a future inheritance through mutual nuptial pacts, altogether reject and invalidate pacts or contracts concerning a future inheritance, others admit that one may express last wills even by a bilateral disposition. This is a succession pact. It draws its origin from old Germanic law. These pacts are admitted by the German Code, art. 2274 ff., and the Swiss, 512 ff. The form of an authentic testament is required. Both parties must manifest their will before a notary or judge. By the Austrian Code, art. 602, pacts which regard the universal inheritance can be made between spouses alone.

This pact binds each party, so that per se it can be revoked only by mutual consent of the parties. For more, cf. the Codes.

IV. Various Objects and Modes of Last Wills. 1. Today it is whole and entire for the testator to constitute either heirs or legatees alone. It is not always clear what precisely the testator intended. The Italian Code, 760, the German, 2087, and the Spanish, 668, indeed call him an heir who succeeds from a testament under a universal title; but that clear distinction is had neither in the French Code nor in the Dutch.

2. Not from the law alone, but also from the style of the tribunals, it must be learned what things can be inserted in a testament usefully, what things in vain, or even not without detriment to the will of the deceased or to a pious cause. Attention must chiefly be paid to matters of the moral or religious order. There is a law which permits that the testator found something for an intellectual, moral, or religious end, and at the same time designate administrators of his confidence; while other laws require that the foundation to be administered be given to a moral person already recognized and competent. A legacy of Masses will not be made efficacious in every respect; indeed, in England it was rejected as superstitious, and only recently has it been admitted; in the U.S.A., because it is of interest to no living person, it happens that it has been invalidated. Dispositions concerning the exclusion of an assisting priest, concerning a religious or non-religious funeral, concerning cremation or customary burial, concerning the religious education of children: what they effect in individual nations must be sought from experts.

3. Peculiar incapacities are established lest certain persons obtain legacies. Sometimes, to protect public morals, a concubinary cannot receive legacies from an accomplice; sometimes, to cut off excesses, a man's second wife cannot obtain more than what the son of the first marriage will receive; sometimes certain persons cannot receive legacies in the last illness, such as a physician, a sacred minister, who, unless they are already otherwise joined by a bond of consanguinity, could abuse their authority.

4. Conditions attached to legacies or to an inheritance are not everywhere estimated as licit and possible in the same way. Thus, for example, the condition of widowhood is admitted here (cf. Italian Code, 850), elsewhere it is rejected; elsewhere, according to the form in which it is made, it will be valid or will be invalidated.

Impossible conditions themselves in French law (900) and Italian law (849) are held as not written; but other laws either invalidate the disposition itself, or distinguish among the impossible conditions themselves, or investigate the will of the testator to see which will is principal.

According to the Austrian Code, a legacy under an impossible or illicit suspensive condition is null; but if it is a resolutory condition, this is held as not written (§ 698; cf. also 712 and 700 for a condition forbidding marriage). - In the Swiss Code, conditions and modes contrary to morals or laws invalidate the legacy itself; if they are merely inconvenient or absurd to some third person, they are held as not written (482). - In the German Code, an impossible mode invalidates the legacy only when it is clear that the liberality would not have existed without such a burden (2195).

5. A mode or burden imposed on a legatee, if it is not fulfilled, does not deprive the legatee of his legacy, unless such was the will of the testator. But one law more easily than another will hold a mode as a condition without which not.

6. Substitutions are chiefly to be attended to. Substitution is, as it were, another institution, or the institution of another heir or legatee after the prior institution. It is distinguished as vulgar, fiduciary, and fideicommissary.

a) Vulgar substitution is had when the substitution of another is foreseen in the place of the prior one who will have been unwilling or unable to enjoy the largition. For example, I bequeath goods to Titius; if he has not accepted, or has died before me, let Caius be the legatee. This substitution is prohibited by no law.

b) Fiduciary substitution is had when the true legatee or heir is concealed under another person who is apparently instituted. This disposition is dangerous because of the not altogether certain interpretation of tribunals. Thus, when the true legatee is not incapable, this substitution in Italy is rather admitted on account of art. 829, which admits no demonstration of dissimulation (cf. Pacifici-Mazzoni, VI, p. 305); while in Belgium one must beware that the person named in the testament, at least from a true liberality made to him, can demonstrate himself to be the legatee, although besides this he must bear burdens. The directly instituted person who must hand over the goods to another, in whole or in part, is as it were the mandatary of the testator and is called a fiduciary.

c) A fideicommissum generally signifies a disposition by which the testator, trusting the heir or legatee, commits something to them to be carried out or handed over. Thus the fiduciary heir receives a fideicommissum most properly.

But fideicommissary substitution properly consists in this, that the testator bequeaths goods to someone with the burden, that is, the strict obligation, of preserving those goods for some time or even until death, and then of handing them over to another designated person. Here, therefore, both are truly but successively instituted. A true substitution supposes a strict obligation. That the testator desires some other destination of the goods, that he expresses his wishes: this does not suffice for substitution. Nor can substitution be confused with a clause by which the testator has merely prohibited alienation: that clause, at least if it prohibits alienation in perpetuity or for the life of the legatee, perhaps can be invalid from another head, but not on account of substitution. Nor is substitution contained in a disposition by which the testator has bequeathed bare ownership to one person and usufruct, even lifelong, to another: both have been immediately instituted.

Temporary substitutions generally incur no reproach. But if the goods must be preserved until death and then handed over to another person, this disposition is admitted by some laws, while by others, with unequal severity, it is prohibited.

In French and Belgian law, 896, and Dutch, 926, they are so rejected that the institution itself is corrupted, that is, the principal disposition to which the burden is annexed. They are permitted, however, in favor of grandchildren or nephews, that is, sons who are born from a son or from a brother or sister. Concerning this exception, art. 1048 and 1019 of the French Code and 1020-1035 of the Dutch Code must be consulted. The same prohibition, circumscribed by a similar exception, is read in the Portuguese Code, 1866-1867, yet in such a way that the principal institution subsists (1869); in the Italian Code, art. 899, these substitutions are completely and without exception prohibited and invalidated, yet in such a way that the principal disposition remains firm (900).

In the Austrian Code, §§ 608 and 622, they are admitted; and also in the German Code, by the formal permission of art. 2100, but per se, with certain exceptions saved, they become ineffective if the substitution has not taken place within thirty years.

In Swiss law, 488, they are admitted once or for one degree; while in Brazilian law, 1739, they can be made up to the second degree; nor does the institution become invalid on account of the prohibited substitution (1740). The same obtains in the Canadian Code Q., art. 932.

N.B. There is also pupillary and quasi-pupillary substitution, by which rather another makes a testament in place of the incapable testator. Concerning it, see what was said above, n. 550, 2.

On Preserving the Legitimate Portion. Donations or testaments by which one disposes beyond what the legal supply allows are called inofficious. Now donations of revenues are never inofficious, nor are remuneratory donations, since they can be called in some way owed. But inofficious testaments or donations are not null, but necessary heirs can act so that the things donated and bequeathed are reduced to a just quantity. On the obligation of conscience, cf. below, 559, 560.

V. Execution of a Testament. Per se the right and office of executing testaments pertains to the heir or heirs.

But the testator can name an executor of the testament and attribute a reward to him. If he attributes none, in one law the office is gratuitous; in another law he obtains a salary, for example, 5 percent.

VI. Efficacy of a Testament. These things must be attended to. 1. The law is accustomed to establish within what time dispositions concerning goods are to be completed by execution. If it has expressly established nothing different, even for pious legacies the testator is judged to have accommodated himself to the civil law.

2. The mode by which legacies are obtained. In Canadian law they must ask nothing from the judge, while in other laws, unless the legacies are paid to them spontaneously, at least particular legacies must be obtained from the heirs or from magistrates.

3. Contribution of debts or burdens of the inheritance. First, no legacy is owed unless after all debts have been paid. Then, even for a pious cause, a strict right to a legacy cannot be constituted insofar as the legitimate portion is harmed. Particular legatees themselves must pay no debt of the deceased. But if they are universal legatees or legatees under a universal title, they must contribute to paying the debts in proportionate part. Yet not even in French law, except in a special case, are they held beyond the powers of the accepted goods.

4. The mode by which a legacy or part of an inheritance not attributed to the designated heir or legatee on account of repudiation or incapacity accrues to other heirs or legatees must be sought from the laws.

492. Conditions required for the value of a testament are determined by civil law. - In law a testament is wont to be distinguished into one in extraordinary external form, and one in ordinary form.

A. A testament in extraordinary form is that which, by reason of privilege, has force even when made without legal forms: thus testaments of soldiers, of those sailing beyond the sea, and in time of plague³ (a. 981-998). But when the necessity ceases, these testaments must within a brief time be clothed with ordinary form.

³ Swiss law also permits this when, on account of the lack of a public official and the impediment of the sick person, ordinary form cannot be observed (a. 506); and similarly Austrian law, admitting a private nuncupative testament before three witnesses simultaneously present (a. 585).

B. Testament in ordinary form is distinguished as threefold: holographic, solemn, and mystic.

1° Holographic (eigenhandig), as the word indicates, is that which has been written entirely by the hand of the testator with notation of the day, month, and year on which it was made, and with the signature of the testator⁴ (a. 970).

⁴ A holographic testament is admitted in French, Belgian, Dutch, Italian, Spanish, Austrian, German, Swiss law, etc.

Whence for its validity three things are essentially required:

a) That it was written entirely by the hand of the testator, with no word excepted. Interlineations added by his own hand do not vitiate the testament; those of another hand vitiate it if they make one body with the testament, as would be certain, for example, from the approval of the testator. Marginal additions are valid, even if they were not signed, if they were written at the same time as the testament itself; but if afterward, and they contain new dispositions, they must be signed with inscription of the day, month, and year. Erasures which are certain to have been made by the hand of the testator, because he approves them or because the testament is found in his possession signed with a seal, only invalidate the deleted dispositions.

b) That the day, month, and year on which the testament was made be rightly designated, at the beginning or end of the document; this is required so that it may be known whether it was written at a time when the testator was capable of making testament, and which of various testaments is valid. But these things must be noted before one's own name is signed, so that the signature of the writer may be the conclusion of the testament; otherwise it would easily be doubtful. But designation of place is not necessary, for a testament can be made anywhere⁵ (a. 999).

⁵ Yet by German law (a. 2231), and Swiss law (a. 505), indication of place is required; conversely, by Austrian law not even indication of date is demanded (a. 578).

c) That the testator append his own name by his own hand⁶ at the end of the document, even by the family name expressed in full letters; nevertheless the first name could suffice if it sufficiently indicated the person, as for example for bishops.

⁶ In English law it can also be signed by another, but under the direction of the testator. But the signature is to be made or acknowledged by the testator before at least two witnesses, simultaneously present, who, before the testator, sign the testament.

That it may obtain its effect, it is rather often required that the testament be exhibited to the tribunal, or deposited with a notary. It is also to be counseled, lest it be taken away or destroyed, that two copies of it be written, of which one is handed to the heir or legatee, the other to the notary.

2° A public or solemn testament (par acte public; plechtig) is that which is made by an authentic or public act by a notary or competent official before witnesses, while the testator orally declares or dictates his last dispositions; whence it is also called nuncupative (C. Germ., a. 2250; mondeling).

The form in diverse regions is diverse. In French law it is received by two notaries before two witnesses; or by one notary before four witnesses; it is dictated by the testator, written by one notary, and signed by that notary, at least two witnesses, and the testator (a. 971-975).

In Belgium, from the law of 16 Dec. 1922 modifying the civil code, two notaries or one notary with two witnesses now suffice; moreover, the conditions required that a solemn testament be valid are: a) that it be dictated by the testator, b) that it be written by one notary just as it was dictated, c) that it be read beforehand to the testator, and indeed before two witnesses if it is received by one notary; d) that mention be made of all these things; e) that it be signed by the testator, and if he cannot do this, that this be expressly declared in the act together with the cause which impeded signing; f) that it also be signed by the witnesses, in the case in which it is received by only one notary; g) the witnesses cannot be legatees, nor their spouses, nor their blood relatives or relatives by marriage (up to the fourth degree inclusively), nor the wife, clerks, or servants of the notary. - Moreover they must be Belgians and adults, and they can be of either sex, yet so that husband and wife are not witnesses together in the same testament (a. 980).

3° A mystic or secret testament (geheim, besloten, verzegeld) is that by which the testator secretly disposes concerning his goods, and which, closed and sealed, he offers to a notary or public official before witnesses.

In French law, it is required that the testator offer it to a notary before six witnesses, declaring this to be his testament, written and signed by his own hand, or written out by another and signed by himself; - of which declaration an authentic act is made, to be signed by all (a. 976-979). In Belgium, by the law of 16 Dec. 1922, this was in some way modified, so that it must be offered to two notaries, or to one notary and two witnesses.

493. Concerning the value of an informal testament, or one lacking legal forms, the principles hold:

1. If the testament regards profane causes, it can be held as valid by the legatee until it is declared null by a judge, because many judge that a testament of this sort is not legally nonexistent but only invalid; in the same way as we said concerning informal donation.

2. Nevertheless the natural heir can petition for the annulment of the testament; - unless he has explicitly promised the testator that he would not attack the testament, and the testator, relying on this promise, has abstained from changing the testament: for then by attacking it he would deprive the legatee by unjust fraud of the right which he otherwise would legitimately have obtained.

3. But the legatee can use no fraud to deceive the judge, for example, by supplying the designation of day or year omitted, or by appending the name of the testator who was impeded by death from signing; but if he has used fraud or another unjust means, he is held to restitution toward the heirs who have the right of prosecuting the annulment of the testament.

4. But if the testament regards pious causes, it is certainly valid in conscience from can. 1513, § 1: "In last wills for the good of the Church, the solemnities of civil law are to be observed if it can be done; if these have been omitted, the heirs are to be admonished to fulfill the will of the testator" (cf. can. 2348).

And although it is not explicitly said: let them be admonished concerning the obligation, nevertheless this is sufficiently indicated implicitly, because admonition is not made concerning counsels but concerning precepts; this is now altogether certain from the authentic declaration of the interpretation commission, 17 Feb. 1930. This declaration besides confirms traditional Roman jurisprudence (Alex. III, Decr. l. III, tit. 26, c. 2; S. Poen. 23 Jun. 1844 and 19 Jan. 1901).

If pious legacies seem too onerous to the relatives of the deceased, they can approach the Holy See to obtain reduction or composition; but in a case of necessity, or if the testator has thus disposed, the Ordinary also is competent (can. 1517).

496. The faculty of donating is limited:

1. by incapacity for donating or receiving in certain persons, whether absolute or relative;

2. by certain determinate modes of donating prohibited by law;

3. by legal reservation with respect to certain goods.

497. Incapacity for donating (onbevoegdheid). - In itself, all who are fit for contracting are capable of donating (n. 467); but by civil law the faculty of donating is restricted in various ways on account of the public good, namely in minors, wives, the insane or interdicted, ceders of goods, and those condemned to penalties.

1. Minors, even emancipated minors, cannot donate except in cases determined by law.

By French and Belgian law, a) after the sixteenth year of age, they can donate by testament, without the assistance of a tutor, one half of the goods which adults could give; but if they dispose of more, the testament is reducible; b) those contracting marriage, in the matrimonial contract, can give whatever adults are able to give; c) they can make small manual donations (a. 903-904 and 1095).

By Italian law, one who has not yet completed 18 years cannot make a testament; once these have been completed, he can do so like all others (a. 762-763); by Austrian law, the impubes cannot make a testament; after puberty and before 18 completed years, only orally and before a judge (a. 569); - by Spanish law, minors can make a testament after the completed 14th year (a. 663); - by German law, they can make a testament only after 16 years, and only orally before a notary (a. 2229); - by English law, minors are prohibited from making a testament.

2. Wives cannot donate inter vivos without the consent of the husband or the authority of a judge, except manual donations; but by testament they can dispose of their own goods; for a testament has force only for the time when the authority of the husband has already ceased (a. 905).

Thus, in conformity with the nature of things, in French, Belgian, Dutch, Spanish, Lusitanian, Romanian law, etc. - But in Austrian, Swiss, Italian, German, English law, they now have full or nearly full power, but with respect to those proper goods concerning which, according to the regime of marriage, they can dispose.

3. The insane and interdicted can in no way donate.

Indeed, after interdiction, even previous acts done while the cause of interdiction already existed notoriously can be annulled (a. 502-503). But those who have been placed under judicial counsel cannot alienate goods inter vivos without the assistance of this counsel, but they are able to make a testament (a. 513).

4. Ceders of goods cannot donate; indeed, it is rather often established in law that donations made within a few days before cession are invalid.

Thus by French law it is established that they cannot donate within the ten days which precede the judicial declaration of their state; and donations made before that can be invalidated, if it is proved that they were made in fraud of creditors (a. 1167; Belgian Commercial Code, a. 445 sq.).

5. Those condemned to perpetual penalties or legally interdicted cannot donate, unless the civil authority dispenses from this inability.

In Belgium, nevertheless, they can make a testament (Penal Code, a. 22).

Concerning the capacity of religious, this is stated in Canon Law, where religious are treated.

498. Incapacity for receiving is absolute or relative, according as it is toward every person, or toward a determined person.

A. Absolutely incapable are:

BY the common law, for the validity of a testament in writing there are required seven witnesses, male, free, or held as free, of age, and requested for that act not by chance, and present, likewise subscribed, before whom the testator declares that this is his testament, and he subscribes it, if he knows how to write; otherwise let him have it subscribed through another as an eighth witness.

FOR the nuncupative testament it is further required that the witnesses hear the testator and understand his will; yet the witnesses need not subscribe or sign the testament itself l. Hac consultissime, C. de Testam. where it is added, if any of these is lacking, the testament is not valid. The same is laid down in Instit. de testam. §. sed paulo infra.

IN codicils, however, and any other last will, regularly five witnesses must be employed, whether requested or chance witnesses. When indeed it is done in writing, they must subscribe L. ult. C. de codicillis, and in these women too can be witnesses; except the codicils of the blind, in which the solemnity of testaments is necessary L. Hac consultissime, C. de his qui testamenta facere possunt.

FOR the validity of a testament it is also required that the witnesses be requested, which must be proved by two witnesses without exception.

FOR a sealed Testament it is also required that the witnesses be present when the testator hands it with his own hand to the Notary, and hear him saying that it is his Testament.

It is also required that the witnesses themselves all subscribe together, and if they do not know how, others do this in their name. Note, however, that witnesses who are subscribed are not valid for legacies, or the inheritance disposed in the same testament, as is had in the law, as Molina notes disput. 125. and Fagundez cap. 2. num. 25.

IN time of plague, two or three witnesses suffice, as is commonly taught. The law, however, though it relaxes the number of witnesses, does not relax the conditions, that they be male, of age, etc. In codicils, however, women can also be witnesses. See Fagundez.

IT is put into the testament, that if it be not valid as a testament, it may be valid as a codicil in every better way, which clause, once added, was inserted, as if the solemnity of the testament be lacking, whence it is made null; let it be valid with the solemnity of a codicil l. finali, §. Illud quoque, C. de Codicillis, in such a way that, although the direct institution of an heir is null, the legacies left in it are nevertheless valid: Nay, even, when the necessary heirs fail, the institution of an extraneous heir be converted into a fideicommissary one, and the heirs ab intestato be bound to restore the inheritance to him, with only the Trebellian quarter deducted from it: likewise, if the testator in his testament unjustly passes over some necessary heir, and institutes an extraneous heir, then the heir passed over is bound to restore the remainder of the inheritance to the extraneous one, his own legitimate portion alone reserved to him, as Molina proves from the law disp. 132. Less. l. 2. cap. 19. dub. 1. Tanner. disp. 4. quaest. 7. num. 305.

YOU will ask: whether a testament begun, but not completed because death supervened, is valid for that part by which it was begun.

IT is answered negatively; nay, even if it be completed, and he die before it is read, it will still be invalid l. fideicommissum, §. Quoque, ff. de Legatis 3. according to Bartolus and others. See Molina disp. 127. Couar. de Testam. C. relatum 1. num. 9.

SINCE, however, in C. Relatum, and cap. cum omnes, de testamentis, it is decreed that the testament of clerics be valid even for non-pious things with two suitable witnesses, and the parish Priest, present. And indeed in the Ecclesiastical state it is valid.

THE question is: whether it is valid also in the states of all Princes.

SOME deny it, as in Fagundez cap. 2. num. 28.

YET, that it is valid, Julius Clarus asserts l. 3. sent. quaest. 6. Sylvest. v. Testam. 1. quaest. 3. Vallascus consult. 74. and others, as in the Gloss on cap. cum esses, de testam.

IT is proved from cap. cum esses, de testam. where the supreme Pontiff derogates from the laws of secular Princes in this part: for Alexander III., most expert in law, says there to the Bishop of Ostia that two witnesses suffice with the presence of the parish priest, and he rejects the contrary custom that had prevailed in that Episcopate, lest the testaments of clerics, etc.; and the reason is given, because upon the mouth of two or three witnesses every word stands.

NAY, C. cum esses, de testamentis seems to speak even of the testaments of the Laity, and of these the passages cited speak. The canonical law, moreover, relies on the fidelity of the Parish priest, who, if he is faithful in the greater matter, namely the business of the soul, will be faithful also in the business of things. The canonical law judges the same of the Judge, and of the cleric Notary, namely that their presence with two witnesses will exclude all fraud; yet the witnesses must be suitable, as Couar. warns ad cap. cit. not women.

FOR the negative is the more common view, as Fagund. says l. 6. cap. 2. num. 30. and it avoids litiis and controversies; but in the matter of testaments the safer way must be trodden. The Decree of Alex. III., moreover, was made for the Episcopate of Ostia and other places of the Church; nor is it credible that the Pope wished to derogate everywhere on earth from a law so common and celebrated among all Princes. So Zabatella, Archid. Ioan. Andr. and others ad C. illud, cum esses; with whom Fagund. subscribes num. 38.

NOTE also that testaments made by parents among their children are valid with only two witnesses present, and the same is laid down of testaments for pious causes, l. Hac consultissima, §. ex imperfecto, C. qui testamentum facere possunt, et l. ult. C. Familia Erciscundae; witnesses suffice whether male or female. And by sons are understood also grandsons and descendants. Yet in a sealed testament the subscription must be made by the testator, or by the children instituted by him, according to Auth. si modo, C. familia erciscundae, or at least let the testator write distinctly the names of the sons whom he leaves as heirs with their portions, with the time added at which the testament is drawn up, according to Auth. Quod sine, C. de testamentis.

BUT if besides the children some extraneous person is mixed into that testament, it is invalid as regards her, and what was left devolves upon the children ex l. ult. as Molina pursues at length disp. 128. Tanner. disp. 4. quaest. 7. dub. 11. num. 304.

NOTE that a testament made before the Prince is valid without the solemnities. L. omnium, C. de testam. Likewise the testament of a soldier, which is valid with only two witnesses, even women l. Divus, ff. de militari testam. Nay, when he is engaged in battle, any signs whatsoever suffice, as is had in the Bavarian law, that he may write in blood on his shield, scabbard, etc., and two witnesses prove his Chyrograph. See Bassaeus num. 3.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Caius had made several wills before his death, as was well known among his relatives. When he died, Titius succeeded to his property, both movable and immovable, by virtue of the latest will that was found, although it was commonly thought that Caius had afterward made another; because it was not found after his death, however, the relatives thought that it had been destroyed. Titius had possessed the inheritance for several years when, by chance, while reading in the library, it happened that he found in a certain book the truly last will of Caius, which was thought to have been destroyed. By this last will all the property of Caius had been left to Paul, a cousin of Titius, and among the burdens with which the immovable goods were charged there was one of paying a debt of one hundred pounds to Sempronius, which had never been paid because Sempronius had not been able to prove the debt after the death of Caius. Titius preserves deep silence toward others concerning the will that was found, but asks a confessor whether he is bound to hand over the inheritance to Paul or to pay the debt to Sempronius. Hence it is asked:

1. What is an executor of a will, and what are his duties?

2. What is to be said of the case?

1. What is an executor of a will, and what is his duty?

A will usually designates a person to whom the testator commits the execution of his last will and testament. This person is called the executor of the will. If no executor has been appointed in the will, his place is taken by an administrator appointed by the Court. After burying the deceased the executor's duty is to prove the will in the Probate Division of the High Court of Justice. On proving the will and fulfilling the duties laid on him by law the executor receives a copy of the will of which he is the executor, and this constitutes his title to act. It confers on him the right to administer the testator’s property in accordance with the terms of the will. The executor must collect the effects of the deceased, pay his debts, and then he must pay the legacies if there were any in the will.

2. The case. Titius succeeded to the estate of Caius according to the terms of the last will which was found after Caius' death. Some years elapsed before Titius discovered another and later will of Caius in a book in the library. By this really last will all the property of Caius was left to Paul, a cousin of Titius, with the exception of £100 which was a debt due to Sempronius, who had claimed the money after Caius' death, but as he had not been able to prove his debt it had never been paid. The question is: Whether Titius is bound to hand over the property to Paul and to pay the £100 to Sempronius. The answer is: No. The title of Titius is derived from the will which was proved after the death of Caius; according to that will the property of Caius was duly administered according to law, and the transaction is closed, nor can it be re-opened because of the finding of a later will after the lapse of several years.