Wills

That which in justice is due to me is my right, as it is called. I have a right to my life, to my good name, to my property; and anyone who deprives me of these rights is guilty of injustice. Rights, then, are the subject-matter of justice, and in this, its strict sense, a right may be defined as a moral power of having, doing, or exacting something.

It is said to be a moral power to distinguish it from the mere physical capacity of brute force, which confers no rights of itself. It is a moral power which may not without injustice be interfered with. It is the power of having and possessing as one’s own something which man values and which serves his convenience and wants; or of doing something, of giving scope to his bodily or mental activity; or of exacting some service as due to him from another.

A right is in re or ad rem. A right in re is a right which one has to something determined and already his own. In order that one may have a right in re the object must already exist; it must not be merely possible or future; it must be determined and separate; it must belong to the person by a title of justice so that it is his. If one of these conditions is wanting but notwithstanding someone has a claim in justice that something should become his property, he has a right ad rem to it. Thus a farmer has a right in re to his harvest after he has gathered it; before it has grown he has only a right ad rem. 'The right of a servant to his wages is ad rem until they are paid; after they are paid his right is in re.

A right in re seems to be practically equivalent to ownership (dominium). Ownership is absolute or qualified. Absolute ownership is the unlimited power of disposing of a thing for one’s own benefit. The absolute owner of a horse may use him, sell him, give him away, or kill him, without violating justice; he may do what he likes with his own. If ownership is limited in some way so that the owner has not a right to all the uses to which the object may be put, the ownership is qualified. Qualified ownership of the thing while its use belongs to someone else is called direct; qualified ownership of the use of what belongs to someone else is called indirect ownership.

According to English law, a subject is incapable of absolute ownership of realty; he is only capable of a qualified ownership therein, although to all intents and purposes an estate in fee simple is equivalent to absolute ownership. A qualified property of many different kinds may be had in realty, and both an absolute and qualified property of many different sorts may be had in movables. The various kinds of property, especially in immovables, are recognized and determined by law, which enforces the rights and obligations annexed thereto. In different systems of law there will be different kinds of property recognized. It will be sufficient for our purpose merely to mention ususfructus, usus, habitatio, servitus, of the Roman and canon law.

In. English law the quantity of interest which a man has in lands and tenements is called an estate, of which there is a great variety: equitable and legal estates; estates of inheritance and not of inheritance; estates of freehold interest and less than freehold, such as estates for years, estates at will, and estates at sufferance.

Vol. I, Bk. VI, Pt. VII, Div. I, Ch. III, Section II. Property Rights of Minors

Apart from positive law, a minor is capable of owning property in his own right just as if he were of full age. Considerable rights over a child’s property were granted to the father by Roman law. The minor had, indeed, complete ownership of what he earned by military service or by any public office, but the usufruct of what came to the son in other ways belonged to the father. Similar rights are commonly granted to the father by those modern systems of law which are derived from the Roman. According to English law, however, the father as such has no rights over any property which belongs to his child. During the child’s minority, if no trustee or guardian of his property has been appointed, the father or mother will usually be appointed guardian, and in that capacity they are bound to administer the property for the benefit of the child, nor may they use it for their own profit.

On the other hand, English law gives no right to children to share in their father’s property except in case of intestacy, differing in this also from the Roman and derived systems. The parent may by our law leave his property to whomsoever he will, unless, of course, it is entailed. As to entailed property, a tenant in tail in possession may now under the Law of Property Act, 1925, in certain circumstances bar an entail and dispose of it as a fee simple, not only by deed but by will.

When an intestate, whether husband or wife, leaves a surviving spouse and issue, the survivor of husband or wife takes (a) personal chattels absolutely; (b) £1,000 net free of Death Duties and costs, with 5 per cent. interest thereon from death till payment or appropriation; (c) a life interest in half of the rest of the intestate’s estate. Subject thereto the property is held on the statutory trusts for the issue.

If the intestate die leaving no husband or wife surviving, but only issue, then the issue take the whole of the estate on the statutory trusts. These statutory trusts provide for equal division of the estate per stirpes.

Vol. I, Bk. VII, Pt. II, Chapter III. 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.

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

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

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

A will is revoked by the subsequent marriage of the testator, by the due execution of a subsequent will which is inconsistent with the former, or by some writing declaring an intention to revoke the same and executed in the manner in which a will is required to be executed; or by the burning, tearing, or otherwise destroying the same by the testator or by some person in his presence and by his direction, with the intention of revoking the same. Such are the provisions of section 20 of the Wills Act, 1837, and section 21 should also be noted. It is as follows: ‘“‘ No obliteration, interlineation, or other alteration made in any will after the execution thereof shall be valid or have any effect (except so far as the words or effect of the will before such alteration shall not be apparent) unless such alteration shall be executed in like manner as hereinbefore is required for the execution of the will; but the will, with such alteration as part thereof, shall be deemed to be duly executed if the signature of the testator and the subscription of the witnesses be made in the margin, or on some other part of the will opposite or near to such alteration, or at the foot or end of, or opposite to, a memorandum referring to such alteration, and written at the end or some other part of the will.”

Vol. I, Bk. II, Tr. II, Diss. I, Pt. VII, Sect. I, Ch. I, Art. II, § III, Point V. On Hereditary Succession · Vol. I, Bk. II, Tr. II, Diss. I, Pt. VII, Sect. I, Ch. I, Art. II, § III, Point V, Scholion II. Practical Warnings

The execution of a will is usually confided by the testator to a person or persons named by him and who are called the executors. Anyone who is capable of making a will may be made an executor, as may even a minor, though he cannot act until he attains full age. One or several may be appointed, but no one is bound to accept the office. If a person dies intestate, or if no executor was appointed in the will, or if he who was appointed refuse to act, an administrator will be appointed by the court to administer the estate. The widow or widower or the next-of-kin of the deceased person is as a rule the person to be selected. The will must be proved in the Probate, Divorce, and Admiralty division of the High Court. Probate in common or non-contentious form may be granted in the district registry within whose district the deceased had a fixed place of abode. Where the assets are small the county court has jurisdiction in contentious cases, otherwise these must be settled in the High Court.

An executor is the legal representative of the testator, and his duties are:

(a) 'To bury the deceased in a manner suitable to his estate. There is no property in a dead body, and a direction by will as to the disposition of the testator’s body cannot be enforced by English law. Thus the executor would not be bound to have the body of the testator cremated, though directions to that effect were contained in the will.

Ecclesiastical law forbids cremation under severe penalties, and declares directions for cremation inserted in wills of no effect (Can. 1203; 1240, sec. 1, 5; 2339).

(b) 'To obtain probate within the prescribed time.

(d) To pay the debts of the deceased in the order and manner prescribed by law, and in general in the following order: funeral expenses, expenses of probate, Crown debts, debts having priority by statute, debts of record, debts by specialty and simple contract. The executor may voluntarily pay an inferior debt before a superior one of which he had no notice, and he is not at liberty to pay a debt which by law cannot be enforced against the estate, with the exception of a debt barred by time according to the statute of limitations.

(e) To distribute the estate according to the terms of the will.

Where there is no executor these duties devolve on the administrator appointed by the court, who, after payment of debts, distributes the estate in accordance with the will, if there is one, and if there is no will, then in accordance with the statutes of distribution. To enable the executor or administrator to fulfil these various duties he is allowed a year by law before he can be compelled to pay legacies or to distribute the estate.

Wouters, Manual of Moral Theology

Ludovicus Wouters, C.SS.R. — 2 passages

Vol. I, Bk. II, Tr. II, Diss. I, Pt. VII, Sect. I, Ch. I, Art. II, § III, Point V. On Hereditary Succession

Vol. II, On the Seventh and Tenth P…, VI. On Donation · Vol. II, On the Seventh and Tenth P…, VII. On Testament

We shall speak first about hereditary succession generally; then about testamentary succession; then about legal succession.

Vol. I, Bk. II, Tr. II, Diss. I, Pt. VII, Sect. I, Ch. I, Art. II, § III, Point V, Scholion II. Practical Warnings

n. 827.

I. Per se there is no obligation of making a testament; per accidens there can be, for example so that disputes may be avoided.

II. Generally, it is to be dissuaded that, with blood-relatives passed over, all things be left to a pious cause. Indeed, there is an obligation of piety, and a grave one, of leaving one's goods to that extent to brothers, sisters, and spouse, insofar as it is necessary for relieving their grave need. With respect to more remote and needy relatives there is no grave obligation (St. Alphonsus, Theologia Moralis, III, 946; Homo Apostolicus, tr. 10, n. 237; Praxis Confessarii, n. 233).

III. Several diocesan synods rightly advise that clerics make a testament in good time; but they discourage them from making it in favor of a maidservant. Rather, through donations inter vivos or through a legacy, let them remunerate services rendered.

McHugh–Callan, Moral Theology

John A. McHugh, O.P., and Charles J. Callan, O.P. — 1 passage

Vol. II, Pt. II, Q. II, Art. 4. The Vices Opposed …, Titles to Property

n. 1872.

Theft and Robbery

Theft and Robbery.—Having considered the injuries to person committed by homicide, mutilation, imprisonment, etc., we shall now take up the injuries to property committed by theft and robbery. Private ownership of property is allowed by natural and divine law, and it is necessary when, as at present, human affairs cannot be well managed under another system. It has its limits, however, since it is subordinate to the public good, and charity requires that those who have the goods of this world share them with those who are in need (see 1210 sqq.). The chief titles to private ownership are the following:

(a) original titles, which are those by which one takes possession and dominion of goods that have never had or have not now an owner, and these are reduced to two, namely, occupation (i.e., the taking possession of a material thing) and accession (i.e., the union of a material thing with one’s property);

(b) derivative titles, which are those by which one obtains dominion, through transfer of right, of the goods that belong to another. These titles are produced by the law itself (as in prescription), or by the law and the free will of man (as in inheritance from testament or from intestate), or by the free will of man (as in contracts).

Bucceroni, Institutions of Moral Theology

Gennaro Bucceroni, S.J. — 51 passages

Vol. II, On the Seventh and Tenth P…, VI. On Donation

n. 1014.

What is reduction? Reduction is: the rescission of a donation or legacy in proportion to the excess above the disposable quantity, which rescission must indeed be made by public authority. The reason is that the legitime should not be injured contrary to right. Rescission, and therefore the act, is valid, and one can retain what he has received if reduction is not demanded. But it cannot be requested except by those for whom the law reserves the legitime. Nor indeed can they, during the life of the donor, renounce this right. If the value of the donations exceeds or equals the disposable quota, the testamentary dispositions are without effect. But if the testamentary dispositions exceed the disposable quota or the portion of this quota which would remain after deducting the value of the donations, reduction is made proportionately without any distinction between heirs and legatees. Meanwhile the donee makes the fruits of the donated thing his own during the life of the donor. Manual gifts also are to be reduced, provided they are immoderate, so that excessive inequality among the children would be had thence. Immoderate, lest parents be dealt with as though they were managers of the affairs of the children. Immoderate, with attention to the conditions of the amount of the patrimony, the person giving, the cause of giving, etc. Therefore provision is made for the legitime of children by computing into the inheritance left at the time of death the things which the deceased, while living, had previously donated to outsiders: namely, for the determination at that time of the legitimate and disposable part; for the legitime is owed only from that time of death. Hence one mass, as it were, is formed from those things which the testator left when dying and from those things which he donated while living, so that the legitime may be taken from this mass. But also the debt which perhaps the testator left must be deducted. It is deducted, however, not from the donated things, but from the things left. For the things donated, since they had already been alienated by the testator, are not obligated to creditors. According to C. He. 527, alienations made by the disposer with the manifest intention of eluding the dispositions concerning the legitime are subject to reduction. - Cf. here n. 673; C. I. 821-824, 1091 ff.; C. G. 920 ff.; C. H. 654 ff., 887, 818 ff., 1036, 1039, 1040, 1044; C. L. 1482, 1493 ff.; C. He. 474 ff., 486, 522 ff.; C. A. 951, 952; L. 740.

Vol. II, On the Seventh and Tenth P…, VII. On Testament

n. 1024.

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

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

n. 1025.

He resolves: A testament is a personal act, which cannot be left to the will of another. C. L. 1740. The inheritance devolves upon the heir from the death of the testator, neither before nor after. Not before, because of a living person there is as yet no inheritance; not after, because the heir continues the person of the deceased, and, by fiction of law, is the same person with him. Hence if the heir enters upon the inheritance later, the entry has retroactive force from the moment of the death of the deceased; and if he dies before entering upon the inheritance, he transmits his right to his own heirs. C. I. 933; C. G. 777; C. A. 531, 532, 533, 536, 537, 545, 797; C. H. 657, 661; C. B. 1942; C. He. 537, 538; C. L. 2011. Hence in an inheritance a day from which the inheritance ought to begin, or on which it ought to cease, is regarded as not having been added. C. I. 851; Inst. 1. 2. t. 14. § 9; cf. C. A. 695.

n. 1026.

Of how many kinds is a testament? By reason of the disposition of goods, according to C. G. 1002, 1003, 1010, testamentary disposition is threefold: universal, by universal title, by particular title. It is universal when the testator leaves to one or more persons the universality of his goods. By universal title, when the testator leaves to someone a quota part of all goods, half, a third; all immovables, all movables, or a quota part of these. According to C. I. 760, both these dispositions are called by universal title. By particular title is any other disposition of some determined thing, C. I. 760; C. G. 1010. The first and second disposition, according to C. I. 760; C. H. 660, 667, 668, 768; C. He. 483, confer the quality of heir; the third, that of legatee. According to C. G. 1002, that threefold disposition can be made under the designation of institution of heir or legatee; and thus an heir or legatee can be universal, by universal title, and by particular title. C. G. 1003, 1010, 1014. C. L. 1736.

By reason of form, according to Roman Law, testament is distinguished: 1. Solemn, in which all the conditions prescribed by the laws are observed. But it is twofold: first, in writing or closed, which, marked with a seal, is handed over to be subscribed by seven witnesses, suitable, male, pubescent, etc., with whom the testator subscribes, if he can; but if he cannot, an eighth witness must be added. The other, open, which is made before seven witnesses, whether in open writing or by living voice; whence it is also called nuncupative. 2. Privileged, which is valid without the solemnities. Such is a testament made by a soldier, or by another in time of plague, or in other circumstances of this kind. Inst. 1. 2. tt. 10, 11; L. 920, 926. Likewise by reason of form, according to C. I. and C. G., testament is threefold: 1. Holographic, which for validity is written entirely by the hand of the testator, with indication of year, month, and day, and with the placing of the name. C. I. 775; C. G. 970. According to C. I. it is expressly required that the signature of the name be placed at the end of the dispositions. The note of time can be made in full letters or in numbers in any part of the testament. The note of place is not necessary. Any paper, even if not sealed, suffices; nevertheless, if the matter is brought before the judge, a fine in France of 30 francs must be paid by the heir. A holographic testament, before it can be committed to 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. But this form is entirely accidental. C. G. 1007. Likewise, according to C. I. 26, 912 ff., a holographic testament, at the instance of him whose interest it is, is deposited with the notary of the place in which the succession has been opened, in the presence of the praetor and two witnesses, and the due instrument of the matter is drawn up. Succession is said to be opened from the point at which the right of the heir in the things of the deceased begins. C. He. 560. It is not the same as the opening of the testament, namely when the testament becomes of public right. Gousset on a. 970. Cf. C. He. 505, 556; C. L. 2009 ff. 2. Public, or solemn, is written by one notary before four male witnesses, adults, etc., or by two notaries before two witnesses, and is subscribed by the testator, the notary, and the witnesses. And if the testator cannot subscribe, mention must be made in the acts, and also of the cause by which he is prevented from subscribing. The testator must declare his will before the witnesses to the notary, or notaries if there are two, who write it; and according to C. I. the notary can use the work of a secretary for writing. Then it must be read to the testator before the witnesses. Finally, mention must be made that it was dictated by the testator, written by the notary, and read to the testator. C. I. 776 ff.; C. G. 971 ff. - Cf. C. L. 1914 ff., where several formalities of a public testament are established; if any of these is lacking, the testament will be without effect. 3. Mystic or secret, which the testator, closed and marked 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 written over the codex of the testament, and subscribed by the notary, witnesses, and testator. If the testator could not subscribe the testament, mention must be made of this, and another witness is added besides the six required. C. G. 976 ff.; C. I. 782 ff. But according to C. I. 783 only four are required; and if the testator cannot write, the same is observed as in a public testament. If it was written by another, even only in part, according to C. I. the testator must subscribe the testament on each page, and declare that he has read the testament. If a secret testament, because of some defect, is not valid as such, it can nevertheless be valid as a holographic testament, if it has its required conditions. C. H. 715.

Cf. C. L. 1920 ff., where several formalities of a closed testament are established; if any of these is lacking, the testament will be without effect. Those who can write can make a holographic testament; those who can speak can make a public one; those who can read can make a secret one. The deaf-mute and the mute can make a testament by holographic or secret testament. C. I. 775, 778, 785, 786; C. G. 971, 972, 978, 979; C. H. 688, 695, 697, 698, 708, 709. - L. 920. There are besides privileged testaments, which have a special form. These are: 1. The testament of a soldier, and of those who by office are assigned to armies. Cf. C. I. 799-803; C. G. 981-984; C. L. 1944 ff. 2. Testament in time of plague. Cf. C. I. 789, 790; C. G. 985-987. 3. Testament made at sea. Cf. C. I. 791 ff.; C. G. 988 ff.; C. L. 1948 ff. 4. Public testament of rustics. Cf. C. G. 974. 5. Testament made in a foreign region. C. L. 1961 ff. - L. 926, 929; C. I. Dispos. etc. initio 8, 9. According to C. H. 676, a testament can be holographic, open, or closed. A holographic one, as to validity, must be written wholly on stamped paper corresponding to the year in which it is made, and subscribed by the testator, with indication of year, month, and day, aa. 678, 688 ff. But by the law of July 21, 1904, stamped paper is no longer required. An open testament is made before a notary and three suitable witnesses, aa. 679, 694 ff. - A closed testament can be written by the testator himself or by another, on ordinary paper, with the place, day, month, and year noted; it is subscribed by the testator at the end, and each page is also initialed, if he himself writes it; but if another writes it, then one's own signature must also be placed on each page. Both in this closed testament and in a holographic one, words blotted, corrected, or written between the lines must be noted by one's own signature. This testament, wrapped in another paper, closed and provided with a seal, the testator hands over to the notary before five witnesses, declaring it to be his testament; the act of this matter is written by the notary on the outer part of the testament, and is subscribed by him, by the testator, and by the witnesses, aa. 680, 706 ff. But special testaments are had: military, aa. 716 ff.; maritime, aa. 722 ff.; made in a foreign region, aa. 732 ff. According to C. A. and C. B., a holographic testament also is admitted. - According to C. A. 577, 584, a testament can be made judicially or extra-judicially, in writing or by voice, written or nuncupative, with or without testimonies. Cf. aa. 578, 590, 598, 601. According to C. B. 2231 ff., 2249 ff., 2259 ff., a testament in ordinary form can be made: 1. Before a judge, or before a notary with the assistance of legitimate witnesses, either by verbal declaration or by consignment of a written disposition. 2. By a declaration written by one's own hand, subscribed by the same testator with indication of place and day, unless he is a minor. But extraordinarily, namely when death is imminent, a testament, in defect of a judge or notary, can be made before the syndic of the Commune, or at sea before three witnesses. Once the succession has been opened, the testament must be sent to the tribunal of succession. According to C. He. 498 ff., a testament can be made in public and holographic form. The public form needs a public official, who writes it, and two witnesses. The holographic must be wholly written and subscribed by the hand of the testator, with indication of the place, year, month, and day on which it was written. - In a certain extraordinary case, in which the testator cannot use one of the prescribed forms, it can be made in oral form, by declaring his own will to two witnesses, who will take care that it be recorded in a legitimate written document. But this testament loses its force if, fifteen days having elapsed from the time it was made, the testator is found to be in a condition to use the ordinary form. A succession contract is admitted, however, which for validity requires the form of a public testament. According to C. L. 1751, 1752, a testament by signs or by monosyllables only is null. And the testator cannot forbid that a testament whose nullity has been declared by law be impugned. According to C. I. 761; C. G. 968, 1097; C. L. 1753, a testament cannot be made by two or more persons in one and the same act, neither for the utility of a third person, nor by reciprocal disposition. According to C. A. 583, 1248; C. B. 2265 ff., a common testament between spouses is admitted, which can be holographic; it is written and signed by one, while by the other it is declared to be valid also for his own testament, and this declaration is likewise subscribed by him. If an heir of his own accord, knowingly and prudently, has fulfilled a testament not made according to law, the testament is now regarded as valid. C. I. 1310, 1311; C. G. 1339, 1340.

n. 1027.

What are the conditions required for testaments? In order that a testament be valid and firm, 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 legitime 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. L. 921; C. L. 1748, 1749.

n. 1028.

What kind of witnesses are required in testaments? - According to Roman law they must be male, pubescent, free, not deaf, not mute, not blind, not intestable by law, not heirs from the testament, nor domestics of the testator or of the heir; nevertheless legatees are not excluded. Inst. 1. 2. t. 10. §§ 6, 9, 10, 11; L. 919. According to C. G. 971, 975, 980, there are required males, adults, subjects of the republic, enjoying civil rights, not clerks of the notaries who draw up the act, not legatees or heirs, nor their blood relatives or relatives by affinity within the fourth degree inclusive, that is, within the second according to the canonical computation for the transverse line; yet in a mystic testament legatees or their relatives are not excluded. For those who are excluded from the office of witnessing are rejected only for a public testament. According to C. I. 788, even foreigners residing in the kingdom are admitted among the witnesses, and only practicing notaries' clerks and secretaries are excluded, and those to whom the exercise of civil rights has been interdicted. By the law of Dec. 9, 1877, women also are admitted. - C. A. 591-597; C. H. 681 ff.; C. B. 2234 ff.; C. L. 1966.

n. 1029.

Whether testaments for profane causes, lacking legal forms, are valid in the forum of conscience? It must altogether be affirmed according to C. He. 519, 520 ff. It seems it must be affirmed according to C. I. For art. 804 by no means establishes the nullity of these testaments by the law itself, but only asserts that the constituted formalities are to be observed under penalty of nullity. Hence, with no sentence of a judge intervening, these testaments are valid in conscience. It is confirmed from art. 1311, where the validity of a testament is openly admitted. It also seems it must be affirmed according to C. G. 970, where concerning a holographic testament it is said that it will not be valid unless the established forms have been observed; and in art. 1001, likewise, it is said that the established formalities of testaments must be observed under penalty of nullity. Likewise it seems it must be affirmed according to C. A. 601, since, if even one prescribed formality has been omitted, the disposition, it is said, will be invalid. Similarly, according to C. H. 687, a testament, it is said, will be null if the prescribed formalities have not been observed. Cf. also a. 705 coll. a. 715. It must also be affirmed according to C. B. 2231 ff., where the making of a testament is altogether distinguished from the testament itself, and according to C. L., which likewise distinguishes the testament from its form, 1739, 1919.

But when a sentence has intervened, which someone can legitimately invoke, one must stand by it. Cf. 936; L. 927. It is useful here to note the disposition of C. I. 1311: "The voluntary execution of one testamentary disposition after the death of the testator includes renunciation of opposing defects and any other exception." Here it is supposed that the defects are not unknown. - Gousset 795 ff.

n. 1030.

Whether testaments for pious causes are valid if they lack legal forms? Resp. Affirmatively, and this opinion is most common and certain. The reason is 1. because it is established from Canon Law, C. Indicante 4, C. Cum esses 10, C. Relatum 11 de Testam., etc. 2. Because pious causes pertain to the Church and are subject to her jurisdiction. But the Church is free and immune from the civil power in all those things which directly fall under her jurisdiction. Hence it was thus established by Trent: "The Bishops, also as delegates of the Apostolic See, in cases conceded by law, are to be the executors of all pious dispositions, both in last will and inter vivos." S. 22. C. 8 de R. 3. The S. Penitentiary, having been questioned many times, responded that this opinion must be adhered to. And indeed the Sacred Roman Congregations and the Supreme Pontiff constantly embrace this opinion in practice. - Hence the contrary opinion in this matter cannot be regarded as truly probable. L. 922; D'Annib. p. 2. n. 339, ed. 3; Gousset 793; E. M.

n. 1031.

Note: Testaments for pious causes therefore need no solemnity established by civil laws; but it is necessary only that the will of the testator be known with certainty. Hence, if the testament has been made orally, two or three witnesses suffice. C. Relatum cit. But the witnesses can be whoever are legitimately able to testify. But if a writing of the testator exists, it indeed suffices for the validity of the testament or pious legacy. Indeed, in the forum of conscience, a nod or other sign of the testator suffices, without any witness, provided nevertheless that the will of the testator is certain. Hence a testament begun and not perfected, because of the intervening death of the testator, is valid as regards the pious legacies already expressed in it. L. 922, 923, 924, 925, 937, 940.

n. 1032.

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

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

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

n. 1033.

Whether substitutions and fideicommissa oblige in conscience?

Immediate substitutions, also called vulgar substitutions, by which another heir or legatee is substituted for an heir or legatee, if the first does not enter upon the inheritance or legacy, are valid according to C. G. 898; C. H. 774 ff.; C. A. 604; C. B. 2096 ff. The same is held according to C. I. 895, if the first heir or legatee does not wish or cannot accept the inheritance or legacy. According to C. I. 896, one substituted to him who was unwilling to be heir is understood to be substituted to him who could not be, and conversely; unless the contrary will of the testator is established. It is otherwise according to C. A. 605. Hence, as regards substitutions of this kind, there can be no difficulty from positive laws for the forum of conscience. Thus substituted persons are bound to fulfill the burdens which were imposed on those into whose place they are substituted, unless they are presumed to have been imposed only on those first called. C. I. 897. According to C. A. 608 ff., 618 ff., fideicommissa remain entire, and accordingly both vulgar substitution and fideicommissary substitution are admitted.

According to C. H. 781 ff., fideicommissary substitutions, by which the heir is burdened to preserve the whole or part of the inheritance and transmit it to another, will be valid and will obtain effect always, provided they do not progress beyond the second degree, or are at least in favor of a person living at the time of the death of the testator. But they can never burden the legitime; they must be express, and in no way fiduciary. Their nullity, however, does not harm the institution of the first heir. According to C. L. 1866 ff., a fideicommissum is approved only for descendants in the second degree, or for the children of the testator's brothers. Likewise, the nullity of a fideicommissary substitution does not bring about the nullity of the institution or legacy.

According to both C. H. 785 and C. L. 1741, secret testamentary dispositions of giving goods back to another heir will have no effect. According to C. He. 488 ff., the disposer can oblige the instituted heir to transmit the inheritance to another substituted heir. Transmission, unless there is a contrary disposition, is made at the death of the instituted heir, who acquires the inheritance like any other heir, but with the obligation of transmission; however, this obligation cannot be imposed on the substituted heir. And the same holds for legacies. According to art. 531, fideicommissary substitution is null in relation to the legitimate heir if it injures the legitime. According to C. B. 2100, 2108, 2109, 2113 ff., fideicommissary substitution is admitted without limit. Nevertheless, a substitution regularly has no effect if, after thirty years have elapsed from the devolved inheritance, the fact which ought to initiate the substitution does not take place. The heir has only restricted ownership of the inheritance, namely so that he may preserve and give it back to the substitute; he is almost its usufructuary, unless the testator has rather restricted the right of the substitute. According to the same C. B. 2190, 2191, both vulgar and fideicommissary substitution are admitted also as regards legacies. According to C. G. 896, 897, 1048-1050, fideicommissa, or mediate substitutions of an heir, are prohibited, also called fideicommissary substitutions, by which namely the heir or legatee is ordered to preserve and give back to another; they will be null even with respect to the donee, legatee, and heir. Hence not only the burden of giving back, but even the donation itself, the legacy, and the inheritance are subjected to nullity. Exceptions are those dispositions by which parents leave their goods, or a part of them, to one or more of their children, with the burden that they give back those goods to their descendants, nevertheless in the first degree according to art. 1048, and also in the second degree according to the law of May 17, 1826, whether born or to be born. But this law of 1826, which permitted more, was abrogated May 7, 1849. The same faculty is given to a brother of leaving goods, of which he can dispose, to one or more brothers, with the burden of giving the same back to their children born or to be born, likewise only in the first degree. According to C. I. 899, 900, any disposition by which the burden of preserving and restoring to another is imposed on an heir or legatee is a fideicommissary substitution, which is prohibited by law. Its nullity brings no prejudice to the validity of the institution of the heir or of the legacy; but the substitution, even in the first degree, lacks effect: namely legal effect; not every effect, even in the forum of conscience; since it is simply prohibited by law, whence it is indeed null, but not by full right, or by the very fact. But according to C. I. 832, 902, 932, it is permitted to leave an inheritance or annual prestations, on account of a pious cause or a cause of public utility, for feeding the poor, educating boys, dowering girls, etc., any heir being instituted, e.g., his own future firstborn, or another's. Likewise C. H. 788; C. L. 1872 permit imposing on an inheritance even a perpetual burden of paying a pension annually in favor of some pious cause. Likewise according to C. I. 901, ownership can be left to one person and usufruct to others; but by no means successively to several, but only to those first called after the death of the testator. So also C. L. 1570. Moreover it must first be noted that there is no substitution prohibited by law if there is no command and burden of preserving and giving back. A simple request, and without an imposed burden, does not constitute a prohibited substitution. Moreover the burden of preserving is necessary. Hence a burden only of giving back does not again constitute a prohibited substitution. For then the instituted heir is in reality not an heir, but merely an executor of the testament. Nor is there a substitution, nor a fideicommissary or fiduciary substitution, but only a certain simple trust in a person, a simple fideicommissum made to him, if what is left to him must be restored to another, either immediately or after some time. Of preserving, namely absolutely; not if he has prohibited alienation by donation, outside the family, etc. In addition, a burden of giving back to a third person is required, namely of giving back after the death of the instituted heir. Hence neither is a burden of giving back from a day, e.g., to Caius after he has reached puberty, ascended to sacred orders, etc., after ten years, etc., a prohibited substitution, but a certain legacy under a condition, or to a term, which is approved by the law itself. C. G. 1040, 1041, 1186; C. I. 854, 856, 857, 1173, 1174. For it is not what the law intends to prohibit, namely that someone by his testament should wish to determine future successions twice or several times, or even indefinitely. Cf. C. I. 901. And hence it is clear that substitution is not properly a conditioned disposition, but a disposition under a mode. Hence the named heir is instituted truly and absolutely as heir, and ownership is transferred to him, with the obligation of fulfilling the imposed burden; if this is not fulfilled, ownership is not lost, but he can always be compelled to fulfill it. Gousset on a. 896; Rogron on the same article. According to C. I. 829, it is permitted to entrust the name of the true heir or legatee to a fiduciary heir, provided that person is not incapable. But it will be grave for the fiduciary heir to betray the trust. Inst. 1. 2. tt. 23, 24; C. B. 2103 ff. It must also be noted that, generally, it is established that the inheritance or legacy is adjudged to him who is named in the testament. Nor is proof admitted that the person called in the testament is merely apparent, under whose name another person is designated, notwithstanding any expression of the testament. But this is not applied to the case in which the institution or legacy is impugned as made through an interposed person to one incapable. C. I. 829. From what has been said it appears that the preceding law is at least not unjust, and accordingly there is no reason why every obligating force should be taken away from it, per se and commonly speaking; although, as is clear from the very tenor of the law, a testamentary disposition made against such a law cannot be regarded as void by the law itself. Hence, if someone directly instituted as heir by a fideicommissary substitution possesses the inheritance, he will be able to retain it in conscience, and will be able to invoke the rescission of the substitution. Likewise if a substituted heir has already obtained the inheritance by the aforesaid fideicommissary disposition, he will be able to retain it in conscience until he is compelled by the judge to restore it. But if someone is instituted heir by fiduciary substitution, from a prior promise made to the testator, or a pact, of transmitting the inheritance immediately or after a certain time to a third person or to a pious cause, he certainly will not be able to retain it in conscience. For he is altogether bound to execute the trust he gave, if it is legitimate. Otherwise he must renounce the inheritance, so that it may come to the intestate heirs. L. 351, 952; E. M.

n. 1034.

What of the revocation and caducity of testaments? Revocation of a testament is had on the part of the testator himself. A testament, under whatever form it has been made, can always be revoked at the nod of the testator, because a testament by its nature is an essentially revocable act; consequently the testator retains ownership of his goods until death. And this holds even though the testator has promised or written that he will not change the testament. C. I. 916; C. A. 552, 695, 716; C. H. 737; C. L. 1754; C. He. 509, 510; C. B. 2253.

Hence by positive Law the renunciation and alienation of a future inheritance and all pacts concerning future succession are prohibited; and by private agreement testaments cannot be changed into pacts. C. I. 954, 1118, 1460; C. G. 1130, 1600; C. A. 879, 1383; cf. ib. 602, 1249; L. 932, 933, 934. Nevertheless C. G. 1082 admits succession pacts under the form of a contractual institution of the heir of future spouses or of their future children. C. A. 602, 1249 admits succession pacts only between spouses. C. B. 1941, 2274 ff. admits succession pacts among all, as regards institution of an heir, legacies, and burdens. Moreover no one can in any way renounce the liberty of revoking or changing testamentary dispositions; any contrary clause or condition lacks effect. C. I. 916.

"Such pacts are odious, and full of dangers because of the snares which are prepared for the life of him concerning whose goods the pact is made." L. 934. Exception: 1. Unless the renunciation is made, according to ancient law, in favor of a religious community; for then every presumption and danger of snares ceases. Cf. 955, 1010; unless by reason of the Constitutions of a religious order someone must dispose of all goods and rights acquired and to be acquired, and this in favor of the pious community or of a certain person; unless a pact is made concerning the inheritance of an uncertain person, e.g., if any inheritance comes to me while I live, let it be yours; the danger likewise ceases. L. 934; Lugo Resp. Mor. 1. 4. d. 4, 5. 2.

According to Roman Law a testament confirmed by oath cannot be revoked. Gur. Cas. 847. 2. According to Canon Law a professed religious who, before the emission of simple vows, has disposed by testament concerning ownership of his goods, cannot in the least revoke or change the disposition without an indult of the Apostolic See. S. C. EE. et RR., Dec. 20, 1861, Bizzarri Coll. ed. 1885, p. 151. But according to the Norms of the same S. C. for New Institutes of simple vows, n. 122, for making and for changing a testament after vows, Apostolic permission is needed; and in urgent cases the permission of the Ordinary or Superior General suffices, or even, if it cannot be done otherwise, of the local Superior.

But a testamentary disposition once revoked vanishes and remains without effect, even though the new disposition cannot obtain execution. C. G. 1037; C. I. 919. The caducity of a testament properly is had on the part of the heir. Properly a testament is caducous when testamentary dispositions, although valid from the beginning, nevertheless become infirm on the part of the heir, if he is unwilling or unable to enter upon the inheritance.

But legacies remain, although the testament becomes caducous. C. I. 853, 854, 890, 891; C. G. 1039, 1040, 1041, 1043; C. A. 703-705; C. L. 1759. Cf. C. H. 689, 703, 704, 719, 720, 730, 731, 740, 764. Cf. C. I. 925. Revocation of a testament can be made in two ways: expressly and tacitly. Expressly, or 1. by destruction of the testament; 2. by an act drawn up before a notary, by which the change of will is expressed; 3. by restitution of the testament made to the testator by its public depositary; 4. by a new testament contrary to the prior one: but then the revocation is not judged entire unless the dispositions of the new testament are contrary to all the dispositions of the prior one, and all are then valid: but if they are contrary, the most recent are valid.

C. I. 916 ff.; C. G. 1035 ff.; C. B. 2254 ff.; C. He. 511. Tacitly, by donation, sale, exchange, destruction, or any disposition of the thing bequeathed, by which the change of the testator is manifested. C. I. 892, 893; C. G. 1042; C. He. 511. Any alienation made by the testator, whether of the whole or of a part, of the thing bequeathed, even by sale with a pact of retro-sale, revokes the testament as regards that which was alienated, although the alienation is null, or the thing returns into the possession of the testator. C. I. 892; C. G. 1038. And the same holds if the testator has transformed the thing bequeathed in such a way that it has lost its preceding form and denomination. C. I. 892. - L. 700; C. A. 713 ff.; C. H. 738 ff., 869; C. L. 1754 ff., 1811; Inst. 1. 2. t. 17.

n. 1035.

Whether a testament is ever broken by the law itself? - A testament is broken, or the right of the testament itself is vitiated, by the agnation of a son or descendant. For a testamentary disposition, whether under the title of universal institution of an heir, or under the title of a particular legacy, made by one who, when he made the testament, either lacked sons or descendants, or was unaware that he had them, is broken by the law itself if there exists or supervenes a legitimate son or descendant of the testator, even posthumous, or legitimated, or adoptive. And the aforesaid breaking still has place even if the son was conceived at the time of the testament, and, if it concerns a legitimated natural son, even if he had been recognized by the father before the testament and legitimated after the testament.

But if the son or grandson has died while the testator is living, the testament is confirmed. But the testament is not broken, or deprived of its force, if the testator provided for the case that sons or their descendants existed or would supervene. C. I. 888, 889. - L. 950; C. A. 777, 778; C. L. 1760, 1814, 1815; Inst. 1. 2. tit. 17. § 5. 1; L. 1 de Iniu. ru. irr. f. test. When a testament has been broken, all dispositions in it are invalidated, and the pious legacies themselves do not remain valid from the presumed will of the testator, if the testator was unaware of existing offspring and did not hope that it would exist.

n. 1036.

Whether each testament is valid when a double testament is found, made on the same day. Fr. Gury in Cas. Consc. n. 833, where he cites Pontas: "each," he says, "testament is valid, since each enjoys all the conditions of a holographic testament and each was made on the same day. Therefore the two heirs have an equal right. And both ought to divide this inheritance between themselves.

For it is the same as if each had been instituted heir in the same testament." Cf. C. A. 715. Cardinal de Lugo d. 24. n. 47: "When," he says, "two testaments are produced made on the same day, and it cannot be known which was later; and the same, in my judgment, will be true when two are produced without the day on which they were made; some say that both are valid and the goods must be divided; which Fr.

Molina also follows, disp. 153, par., when they are on the same day; and certainly if there are any legacies, or any other things which are prescribed in both testaments, these seem to have to be fulfilled, since as regards these the will of the testator is certainly established; which at least will be true if a codicil suffices for their value, and that testament can at least be valid as a codicil because of a codicillary clause formally or virtually placed. But as regards the other things in which those testaments are opposed, the common opinion, speaking of common law, deservedly teaches that neither testament is valid because of uncertainty, and that the inheritance comes to the intestate heirs.... Thus commonly the doctors, whom Sanchez reports and follows in the cited cap. 1, dub. 22, n. 3. Yet he limits this opinion with others, first, if neither heir should possess; otherwise the possessor is not to be despoiled in doubt. Second, unless in one testament those are instituted who, ab intestato, ought to succeed; for then that testament would have to be preferred. Third, unless one is in favor of a pious cause, because of whose favor it will be sustained." This opinion, which stands for the invalidity of both testaments, seems more probable, since this double testament shows the will of the testator suspended and not yet determined. For a testator making two testaments which are mutually opposed actually chooses neither, but is about to choose one or the other. Nevertheless the opinion which stands for the validity of both testaments does not lack its probability. Cf. 1034. C. L. 1756.

"Two tablets of a testament, written at the same time for the sake of a copy, as commonly happens, of the same paterfamilias, are produced; in one a hundred, in the other fifty gold pieces are bequeathed to Titius; you ask whether he is to have both fifty gold pieces and a hundred, or only a hundred? Proculus responded: In this case the heir must rather be spared; and therefore both legacies are by no means owed, but only fifty gold pieces." L. Sempronius 47 de Legatis etc. Dig.

n. 1037.

What, by natural and positive law, concerning the capacity of testators? - By Natural Law all can testate, with exception only of those who are not masters of their own mind, or have been declared incapable by law, even though they are under curatorship or guardianship; and they can testate even without a curator or guardian. Those deaf and mute from birth can also testate. - L. 942; C. A. 565-567; C. H. 662. By Canon Law, professed religious cannot testate, even if they are Bishops; even if they are perpetually secularized, without a special Apostolic Indult; and likewise Bishops and clerics, as regards the revenues of benefices, except by privilege or legitimate custom. Novices, since they are still of their own right, can testate. Nor indeed is their testament broken when profession has been made, even if the monastery has been omitted in it. Nor is Trent, sess. 25, c. 16 de Reg., opposed; since there it concerns dispositions inter vivos, valid of themselves at once, but by no means testaments, which of themselves are revocable. C. 1, 2, 7-9, 12 de Testam.; Trent sess. 25, c. 1 de R., c. 16 de Reg.; C. Inscrutabili of Innocent XII, Jan. 30, 1694; L. 935, 942; Schmalz. de Testam. n. 83 ff.; Ferraris v. Beneficiatus a. 3. n. 8; C. A. 573; E. M. By Roman Law all who have the use of reason can testate, except those deaf and mute from birth, those under puberty, sons who are under paternal power, prodigals, those polluted by an incestuous and forbidden marriage, those condemned to civil or natural death, as well as professed religious. But sons of families are permitted to testate concerning peculium castrense or quasi-castrense. Inst. 1. 2. t. 12; Tit. 22 Cod. According to C. I. 762, 763, all can testate who are not declared incapable by law. Moreover, as incapable, the following cannot testate: minors before the eighteenth year; those interdicted because of infirmity of mind; those who are not of sound mind at the time when they make the testament; those condemned to prison with hard labor, Cod. poen. 32. According to C. G. 509, 903, 904, the following can testate: 1. All who can make donations inter vivos. 2. Wives, who have full faculty of testating, although they cannot make donations without the special consent of the husband or authority of the judge; for they need neither of these in order to be able freely to dispose by testament. 3. Minors from the sixteenth year can testate only concerning half the part of the goods of which adults are able to dispose. If nevertheless they exceed this quantity, the testament is valid, but can be reduced to the legitimate limits.

But those who are not of sound mind, and those interdicted, cannot testate. According to C. A. 568, 569, 574, those below puberty are incapable of testating. Those condemned to death and to hard prison cannot make any valid testamentary disposition. Minors before the eighteenth year of age can testate only nuncupatively and before a judge. After this age they can testate freely. Prodigals dispose only of half part of their patrimony. According to C. B. 104, 2229, those who are capable of contracting are also capable of testating. But one who has a restricted capacity of contracting does not need the consent of his legal representative for making a testament. A minor, after the completed sixteenth year of age, can testate. One interdicted because of infirmity of mind, prodigality, or vice of drunkenness cannot testate.

According to C. L. 1763; C. H. 663, minors before the fourteenth year of age and those who habitually or accidentally are not masters of themselves are incapable of testating. According to C. He. 467 ff., he is capable of testating who enjoys discretion of reason and is eighteen years old. For a succession contract a greater age is required. Dispositions made under the influence of error, fraud, force, or threats are null.

n. 1038.

What, by natural and positive law, concerning the capacity of heirs? - By Natural Law, all human beings, even the insane, the deaf, the mute, slaves, indeed even a community, can be instituted heirs, unless they are specially prohibited by Positive Law. L. 943. By Canon Law, professed religious of Orders to which it is permitted to possess immovable goods in common can be instituted heirs, and the monastery succeeds in their name, unless a contrary special Constitution of the Order is present. But religious promoted to the episcopate are capable of hereditary succession in such a way that administration of the goods and advantage belong to them, but ownership to the church over which they preside. The monasteries themselves also, to which it has been conceded to have ownership in common of immovable goods, can be instituted heirs. L. 944.

On account of the special Constitutions and Rules of their Order, the Friars Minor of the observance and the Capuchin Fathers cannot be instituted heirs, and likewise professed members and formed coadjutors of the Society of Jesus in particular. Schmalzgr. 1. 3. p. 3. tit. 26. n. 96, 97. - Lugo Resp. Mor. 1. 4. disp. 4, 5; E. M. By Roman Law those condemned to death, whether natural or civil, traitors, natural and spurious children, according to the restrictions to be set forth below, are prohibited from being instituted heirs. Cf. n. 1045; L. 943, 950, 951, 952. According to C. A. 22, 538 ff., 681, those are capable of succeeding who are capable of acquiring, not only those already born, but even those only conceived. The unworthy person is excluded from the right of succeeding: one who has offended the testator; one who by force or fraud induced the testator to declare his last will. Adulterers and incestuous persons cannot reciprocally succeed to one another. - The incapable person is excluded from any inheritance; the unworthy person only from the inheritance of him whom he himself affected with some atrocious injury. According to C. H. 744 ff., 756 ff., those are capable of succeeding who are not declared incapable by law. Declared incapable are abortive children who have not prolonged life through an entire day; moral bodies not permitted by law; and those unworthy from a crime established by law. Testamentary dispositions in the last infirmity in favor of the confessor will not produce effect.

According to C. I. 2, 721, 724-728, 764-766, 890, Cod. poen. 33, the following are incapable of an inheritance from testament, who by disposition of law cannot succeed as incapable, namely: 1. Those who, when the inheritance was entered upon, had already died before, or had not yet been conceived. 2. Those who were born non-viable. Nevertheless immediate children of a person living when the testator died can receive from testament, even if these had not yet been conceived. 3. Those condemned to prison with hard labor. 4. Those who are incapable of legitimate succession as unworthy, namely: 1. He who voluntarily killed or attempted to kill him whose succession is in question. 2. He who charges the same with a crime, if the crime charged is declared calumnious in judgment. 3. He who compelled the same to make or change a testament. 4. He who prevented the same from making a testament or revoking one already made, or who suppressed or concealed a later testament, or introduced some changes into it. Cf. L. 948, 949; C. H. 673, 674. He who has been excluded as unworthy is obliged to restore the fruits and revenues received after the opened succession. - Nevertheless the unworthy person can be admitted to the succession, if he whose succession is in question has expressly rendered him capable for this by an authentic act or testament. Likewise the descendants of the unworthy person retain the right to the legitime which would have pertained to the rejected one. - The unworthy person must be repelled from succession by the office of the judge, because it is a penalty; the incapable person is prohibited by the law itself. - Cf. C. He. 539 ff.; C. L. 1776 ff. According to C. G. 25, 338, 725, 727, 762, 906 ff., 1039, incapable of an inheritance are: 1. Those who were not conceived or were already dead at the time of the death of the testator. 2. Those born non-viable. 3. The civilly dead. 4. Physicians, surgeons, health officers, pharmacists, who cared for the deceased in the last illness, as well as confessors, if the disposition was made during such illness, namely that in which the sick person dies, certain cases being excepted. Cf. C. H. 747, 752; C. L. 1775, 1769. 5. Any communities without the approval of the Prince or of the Prefect, if the disposition exceeds the sum of 300 francs. More recently, however, broader faculties have been granted to Prefects in favor of civil communities, hospitals, church fabric funds, etc., which nevertheless are not extended to religious communities. But it is self-evident that these prescriptions have no force insofar as they injure the rights of the Church. - From succession, however, the following are repelled as unworthy: 1. He who has been condemned because he killed or attempted to kill the deceased. 2. He who charged the deceased with a capital crime which has been judged calumny. 3. An adult who, knowing the murderer of the deceased, did not denounce him to judgment. Cf. aa. 727, 730, 955, 1046, 1047.

Moreover, the following can take nothing from a testament as incapable: 1. Guardians, before the last accounts of administered guardianship have been rendered and approved, even if the guardianship has ended. C. I. 769; C. G. 907; C. H. 753; excepting ascendants, descendants, brothers, sisters, and spouse. C. I. 769. Cf. C. G. 907; C. H. 753; C. L. 1767, 1768, 1770. - 2. A notary, and one who was present as a witness to the testament. C. I. 771; C. H. 754; C. L. 1772; C. He. 503; or one who wrote the secret testament, unless the testator by his own hand, or orally before the notary and witnesses when it is handed over, has approved what he left to him. C. I. 771, 772. 3. Natural children whose filiation has not been legally recognized or declared have no right to succession or testament. Illegitimate natural children whom the testator legally acknowledged, or who are established as such by the sentence of a judge, legitimate children existing, cannot take anything from father or mother except the legitime, or that which is owed to them by right of succession. C. I. 181, 192, 193, 723, 743, 764, 768, 773; C. G. 334, 338, 723, 756, 908, 911. Incestuous and adulterine children, or spurious children, can receive nothing except support; but they have a right to this if the testator acknowledged them, or if by the sentence of a judge they are established as such. C. I. 180, 193, 752, 767; C. G. 762. Cf. here 1042.

It is not permitted for a spouse who has married a second time to leave to the new spouse more than to the child procreated from the former marriage to whom he left less than to the others. C. I. 770; cf. C. G. 1098. - 5. An adulterous spouse cannot dispose in favor of his accomplice, if the adultery has been judicially proved before the death of the testator. C. L. 1771. According to C. B. 1938, 2333 ff., one can by testament exclude from legitimate succession a blood relative or spouse, without instituting an heir. One can take away from a descendant, father, mother, or spouse, on account of offenses established in the law itself, the part reserved to them by law, and restrict the right to that part for a prodigal descendant or one burdened with debt.

n. 1039.

Note: When the testator has erred in the name of the heir or legatee, if nevertheless the person is established, the institution and legacy are valid. And the same must be said if the thing bequeathed has been erroneously indicated. C. I. 836; C. He. 469. Cf. C. L. 1761, 1837. As regards the interpretation of testaments in various doubtful cases, cf. C. B. 2066 ff., 2088 ff. A testamentary disposition in favor of an incapable person, although simulated under the form of an onerous contract, or made through interposed persons, namely the father, mother, descendants, and spouse of him to whom it is left, according to C. I. 773 is null; according to C. G. 911, C. H. 755 it will be null.

Hence some affirm that a fiduciary heir, to whom it was committed to restore the inheritance to an incapable person, e.g., to a spurious son, can ascribe the inheritance or legacy to himself, for the condition of restoring contrary to law is null. Others say that he must restore it to him to whom it had been left, lest he betray the trust. Others hold, and more truly, that he must restore it to the intestate heirs, to whom the right assists from the just disposition of the laws. Cf. Lugo d. 24. n. 95; Salm. tr. 14. c. 5. n. 73; L. 351, 952 and here 1045. A testamentary disposition made in favor of a person who is uncertain in such a way that he cannot be determined is null. C. I. 830; C. H. 750; C. L. 1741, 1742; or in favor of a person altogether uncertain to be named by another. But a disposition by particular title is valid for a person to be chosen by a third party from among various families or moral bodies determined by the testator himself. C. I. 834, 872. Cf. C. B. 2065. "Legacies to pious causes do not become caducous because of uncertainty of place or church, but most often they will have to be given to the poorer church or hospital." L. 938. Cf. C. H. 650, 671. A disposition made generally in favor of the poor, the sick, etc., is valid. C. L. 1872; C. I. 832. Likewise a disposition is valid by which someone commits his last will to the disposition of another, if it is for pious causes. C. Cum tibi 13 de Testam. Communities or Colleges, as well as moral entities which have not been legitimately approved, since they do not enjoy civil rights, cannot receive from a testament; nevertheless it is permitted to leave to lay moral persons to be established, when they have legally assembled. But moral bodies legitimately constituted need Government approval. Dispositions for the soul or in favor of the soul expressed generically are null. C. I. 831, 832, 833, 932, 1075. According to C. H. 747, if an indeterminate disposition is for suffrages and pious works for the benefit of one's soul, half the part must be handed over to the Diocesan, and the other half to the Civil Governor; the former to be destined to suffrages and necessities of the Church, the latter to charitable hospices. According to C. L. 1775, one cannot institute his own soul as heir, except only for the third part of the third of free disposition. But laws of this kind, insofar as they regard churches and pious causes, are altogether null in the forum of conscience. Cf. Gousset 793.

n. 1040.

Of how many kinds is an heir distinguished, and how is his succession made? Resp. To the 1st: An heir is distinguished as: 1. Legitimate, who succeeds by law ab intestato. 2. Necessary, who cannot be excluded by the testator. 3. Voluntary, who is called as heir from the free will of the testator. - An heir from testament is also distinguished, if he has been designated by testament, and an heir ab intestato, if by law he succeeds to a deceased person who made no testament or an imperfect testament. In the first case there is inheritance, or testamentary succession. In the other there is legitimate inheritance, or succession ab intestato. C. I. 720; C. H. 658, 763, 807; C. A. 531, 532, 538, 764; C. B. 1922, 1923; C. L. 1735. Cf. here 672, 673; L. 945; Inst. 1. 2. t. 19; Gal. 4:7. According to the various Laws, someone can or cannot die partly testate and partly intestate. And thus an heir also can or cannot, according to the various Laws, partly succeed from testament and partly ab intestato. According to C. He. 481, that portion of the goods of which the deceased did not dispose is devolved upon the legitimate heirs.

Resp. To the 2nd: Succession ab intestato is devolved upon blood relatives. C. I. 721, 722. Succession is made by heads and by stocks. It is made by heads when the inheritance is divided into as many virile or equal parts as there are heads, or persons concurring to the inheritance by their own right. It is made by stocks when succession is had by right of representation, by reason of the stock from which the heir has arisen. C. I. 733; C. L. 1980 ff. Representation has this effect, that the representatives hold the place, i.e., the degree and rights of the represented person, C. I. 729, who cannot be an heir, C. I. 734, 735. Hence the representatives have no other right to the inheritance than that which would have pertained to the person whom they represent, and accordingly they take the virile share of their author; and if they are several, they take it divided among themselves by persons, i.e., in equal parts, or it is divided by heads. And this has place also in testamentary successions, unless the testator has disposed otherwise, or it concerns only a personal right. C. I. 728, 890. But if several branches have come forth from the same stock, subdivision is made by stocks in each branch, but by heads among the coheirs of the same branch. C. I. 733. Thus, e.g., Gerontius had three sons, now dead before him: Francis, Dominic, and Ignatius. From Francis was born Lucius, surviving. From Dominic were born Lucidus and Lucida, surviving. From Ignatius were born Aloysius and Stanislaus; from these, now deceased, children survive: Lucia and Lucella of Aloysius, Marius and Marianus of Stanislaus. Gerontius, dying, leaves a patrimony of 108,000 lire. The division of succession is made by the stocks of Francis, Dominic, and Ignatius; i.e., into three parts, and to each falls a quota part of 36,000 lire. The whole quota part of the stock of Francis pertains to Lucius, namely 36,000 lire. The other quota part of the stock of Dominic must be subdivided into two parts and is divided by heads between Lucidus and Lucida; namely, to each fall 18,000 lire. The third quota part of the stock of Ignatius is subdivided again into the stocks of Aloysius and Stanislaus, i.e., into two parts; whence to each stock fall 18,000 lire. Moreover the portion which is owed to the stock of Aloysius is again subdivided into two parts, by heads, between Lucia and Lucella, and to each are owed 9,000 lire. Likewise the portion which is owed to the stock of Stanislaus is also subdivided by heads, between Marius and Marianus, and to each are also owed 9,000 lire. Representation obtains only in the direct descending line to infinity and in any case. But in the transverse line, the sons and descendants of brothers and sisters of the deceased can represent their parents. C. I. 730-732; C. G. 718 ff., 731 ff., 739 ff.; C. A. 726 ff.; C. H. 912 ff., 915 ff., 924 ff. Succession into lines is had if the goods are divided between the paternal and maternal line, and blood relatives from each line are called to receive the inheritance.

n. 1041.

Of how many kinds are the goods of the testator distinguished? - For him who has no necessary successors, it is entire, that is, open, to donate absolutely all his goods to whomever he wishes, whether by act inter vivos or mortis causa, C. I. 809; C. G. 916; but otherwise if he has necessary successors. For to these a portion of the goods or inheritance is owed, constituted by law, which is called the legitime. C. I. 805, 808, 1091; C. G. 913, 915; C. A. 762, 774; C. He. 470. But that part of the goods which someone can freely either donate inter vivos to anyone or leave by testament is called disposable. The legitimate part is owed in full ownership, and accordingly without any burden whatsoever, mode, condition, or day; but it is otherwise for the disposable portion, to which burdens can be added. C. I. 808, 810; C. G. 913, 917; C. H. 813; C. A. 774. - L. 740, 950; Lugo Resp. Mor. 1. 6. 24.

n. 1042.

Who are necessary heirs? - By the very law of nature the right of succession seems to belong to proximate blood relatives. For the common good of society requires that there be a certain stability of wealth in families, which, by the disposition of divine Providence, are preserved and propagated by a continued series of generations. Necessary heirs are: 1. Descendants. 2. In their defect, ascendants. C. A. 762; C. H. 807. - If both are lacking, it is entirely open to the testator to dispose of all his property according to his judgment. C. I. 809; C. G. 916; with the right of the surviving spouse to a certain part of the usufruct of the goods left being preserved, C. I. 812, 814.

But descendants are natural and legitimate children, or only legitimate, i.e., legitimated and adoptive, and their descendants. C. I. 806; C. A. 763. - Descendants of sons succeed by right of representation if they concur with sons; and then, however many they are, they receive that portion, divisible among themselves, which belonged to their parent, that is, they succeed by stocks. But if no son survives, the testator can distribute his goods equally to each, according to the right conceded to him, and they themselves succeed by heads. C. H. 739-745.

To sons natural children, not legally recognized, no right is conceded in the goods of the parents; to those recognized, no right in the goods of those who are blood relatives of the parents. C. I. 743, 749; C. G. 756. According to C. He. 470, necessary heirs are descendants, parents, brothers or sisters, and spouse. By Canon Law, among necessary heirs is to be counted the church, to which by right pertain and are devolved ecclesiastical goods left by a Bishop, by a rector of a church, by a beneficiary, goods bought from the goods of the church, goods donated in view of the church, and improvements made in things of the church.

C. 1, 3, 4, 5 de Pecul. clericor. The goods of a solemnly professed Religious pertain to his Religion, unless special statutes of the Order stand in the way. The goods of a simply professed Religious pertain to his heirs, whether coming ab intestato or from testament. E. M. "An inheritance is usually divided into twelve ounces, which are contained under the name of the as. And these parts have their own names from the ounce up to the as, as follows: 1 ounce, 2 sextans, 3 quadrans, 4 triens, 5 quincunx, 6 semis, 7 septunx, 8 bes, 9 dodrans, 10 dextans, 11 deunx, 12 as." Inst. 1. 2. t. 14. § 5.

n. 1043.

What, according to positive law, is the reservation or legitime owed to necessary heirs? According to Roman Law: 1. As regards ascendants, the triens, that is, the third part of the as or inheritance, is reserved when descendants are lacking. - 2. As regards legitimate children, the triens, if there are not more than four children; and the semissis, or half part, if there are more. 3. As regards natural children, they succeed to the mother by equal right with legitimate children. But they do not succeed to the father having legitimate children, although they can receive from him a twelfth part of the inheritance. But if the father lacks legitimate children, he can institute natural children as heirs, provided surviving parents are not deprived of their legitimate portion; and when these are lacking, natural children can succeed to all the father's goods. - Nov. 118; L. 947-901. According to C. G. 913-915, whether for testament or for donation inter vivos: 1. As regards the reservation owed to legitimate children, if there is one, the semis, or half part of the goods, is reserved; if two, the bes, or two thirds; if three or more, the dodrans, or three quarters. But under the name of child, his descendants who represent him are comprehended. - It does not seem that the part which would pertain to a legally recognized illegitimate child ab intestato can be taken away from him by testament. Cf. n. 1047. 2. As regards the reservation owed to ascendants, if legitimate children are present, they have no right; when children are lacking, ascendants have a right to the legitime, so that this portion is the semis or half part if they survive from each line; but the quadrans, or fourth part, if they survive only from one. 3. A wife does not come among necessary heirs, nor legitimate heirs ab intestato, unless the other legitimate heirs within the degrees established by law are lacking. Thus according to each Law, namely Roman and French. Nevertheless by natural law a testator must assign some part to the surviving spouse, if she does not have sufficient goods of her own, on account of the most close necessity between husband and wife.

According to C. I. 744, 805, 807, 808-810, 812-816, 818, 819: 1. The legitimate portion of legitimate children is half of the goods, whatever the number and sex of the children may be. But under the name of children are comprehended legitimate, legitimated, and adoptive children, and their descendants. 2. To illegitimate children duly acknowledged, if children or ascendants exist, there is owed half of the quota part which would have fallen to them if they had been legitimate, the legitimate children being computed together with them. But if descendants and ascendants are lacking, two thirds of the aforesaid quota are owed to them. Yet this portion which is owed to illegitimate children can be furnished in hereditary goods or in counted money; and it does not diminish the legitime of legitimate descendants or ascendants, since it must be deducted from the disposable portion. 3. The legitimate portion of ascendants, when descendants are lacking, is a third part, divisible between father and mother, and, if either of them is lacking, to be conferred on the survivor; if both are lacking, to be divided between ascendants of the paternal line and of the maternal line, provided they are of the same degree; otherwise to be conferred upon the nearer persons of either line. 4. The spouse has a right in the inheritance of the deceased spouse to the usufruct of a certain portion, greater or lesser, according as the deceased has left either descendants, or ascendants alone, or neither. But this portion is deducted from the disposable portion, and can be given by a certain part of the revenues, or by annual prestations. Note: 1. If the testator assigns to someone a usufruct or life annuity which exceeds the annual revenue of the portion of which he was able to dispose, then the legitimaries are given the option either of executing what was prescribed by the testator, or of renouncing for themselves the portion of which he was able to dispose. C. I. 810. - 2. The surviving spouse, and one not previously personally separated by a sentence which has passed into judgment, has the right of usufruct in that part of the inheritance which equals the part pertaining to each legitimate child, under the title of legitime, counting the spouse himself together with the children. C. I. 812. If the testator does not leave descendants but only ascendants, the portion of usufruct will be the fourth part of the inheritance. C. I. 813. - But if the testator leaves neither descendants nor ascendants who have a right to the legitime, the portion of usufruct will be a third part of the goods. C. I. 814. The testator can indeed be more abundant toward the surviving spouse as regards the disposable part. Yet, if children from another marriage survive the testator himself, then he cannot leave to the second spouse more than that which he left to the least regarded child of the prior marriage. 3. Both the spouse and the natural child must impute to their respective quota, the former all things which came to him from matrimonial agreements, and the latter everything which he received from the testator while living, if it is subject to collation. C. I. 820. 4. Natural children, legitimate children being lacking, can be instituted for the whole as, the legitime owed to ascendants being preserved. C. I. 724, 745, 764; C. G. 723.

According to C. H. 808, 809, 834 ff., 840 ff., the legitime reserved for children and legitimate descendants is contained in two thirds of the hereditary patrimony of the father and mother. Nevertheless they themselves can dispose of one of these two parts, under the title of betterment, so that they may apply it to children and legitimate descendants. Of the remaining third part of the goods they can freely dispose. - The legitime of parents and ascendants, in defect of the preceding, is constituted by half of the hereditary goods. The disposition of the other half part remains free. To the widowed spouse, not separated by divorce, or without his fault, a certain part as to usufruct is reserved, which varies according to various circumstances. To natural children also legally recognized a certain part is reserved; but to illegitimate children who are not natural, only support.

According to C. L. 1784 ff., the legitime is contained in two thirds of the goods of the testator. According to C. A. 161, 162, 865, 766, 796, the legitimate portion reserved to children is half the part of the goods which would fall to them in succession ab intestato. But the legitimate portion of each necessary heir in the ascending line is a third part of the goods which would come to him in succession ab intestato. Legitimated natural children are counted among legitimate children. No legitime is owed to the spouse, but only suitable support. Cf. as regards the spouse, aa. 1242 ff. According to C. B. 2303 ff. and C. He. 470, 471, reservation of goods is had for descendants, for father and mother, for the spouse; and according to C. He. l.c., also for brothers or sisters.

According to C. He. 633, adult children who live together with their parents and have contributed work and profit into the domestic community of the parents can claim equitable compensation in the division of their inheritance, insofar as they have not expressly renounced it.

n. 1044.

Whether a testator is bound under grave obligation to leave goods to blood relatives who are not necessary heirs, if they are gravely in need?

Speaking of brothers or sisters, it must altogether be affirmed, at least as much as suffices for relieving their need, not only from the general precept of charity, which obliges gravely when the matter is grave, but also from the special obligation of piety, which also obliges under grave sin to aid brothers or sisters in grave necessity before all other poor persons or pious works. But if brothers or sisters are poor, even if they do not have grave need, it is still at least venial to pass them over. Toward other more remote blood relatives there does not seem to be a grave obligation of preferring them to other poor persons. Nevertheless passing them over, if they are gravely in need, would not be free from light fault, since toward them also there is some obligation of piety, although not so strict. C. He. 470 numbers brothers and sisters among legitimate and necessary heirs. L. 946.

n. 1045.

Whether parents can leave part of the inheritance even to spurious children? - "Spurious children, apart from support, can receive absolutely nothing from the father under any title whatsoever, neither inter vivos, nor from testament, nor ab intestato; and if they have received anything, they are bound in conscience to restore it to the heirs of the father.... The reason is that these spurious children have been made altogether incapable by law in hatred of the parents, as from Nov. 74, etc." Thus St. Alphonsus 951. And Struggl, tr. 7, q. 2, n. 13: "Whence in the case in which a father has excessively dowered a spurious daughter, she with her husband is bound, even before the sentence of the judge, to restore the excess of the dowry to the legitimate heirs, unless perhaps they freely remit this; as Sporer teaches here, cap. 5, n. 50, with Molina and Sanchez." The theologians commonly taught, according to the ancient laws, that to donate to spurious children, and to accept donations, to bequeath, and to acknowledge legacies, is grave. Namely, it is very much in the interest of the republic to protect good morals. Nor is it valid to say that illegitimate children who are not legally acknowledged, as are adulterine and incestuous children, can freely receive as though outsiders what their parents have freely wished to give or bequeath to them. For this openly contains fraud of the law, and would establish them in a better condition than legally acknowledged illegitimate children, which is evidently contrary to the will of the law. C. I. 180, 752; C. G. 762; C. H. 134, 139; C. A. 165.

Cf. aa. 752, 753, 754. - L. 951, 952; Gousset 727. Cf. here 1038, 1039.

n. 1046.

Whether necessary heirs can be disinherited? - According to Roman Law, children can be disinherited by the authority of the father alone, especially in the following cases: 1. If a son lays hands on a parent, or treats him contumeliously. 2. If he is his accuser or witness in criminal causes. 3. If he has relations with the same one's wife. 4. If he is unwilling to become surety for freeing the father from prison. 5. If he has prohibited the father from making a testament. 6. If a daughter, having refused an honorable marriage, lives luxuriously. Inst. 1. 2. t. 13; L. 948 ff. - According to C. A. 768 ff., necessary heirs can be disinherited for causes constituted in the Law. The same is held in C. H. 848 ff.; C. L. 1875 ff.; C. He. 477 ff. According to French and Italian Law, necessary heirs can never be disinherited by private authority. Yet by law they are excluded from the inheritance as unworthy in the cases already noted above. Cf. 672, 1038. According to C. B. 1938, 2332 ff., 2339, one can by testament exclude a blood relative or his own spouse from legitimate succession. On account of offenses established in the law itself, one can take away the part reserved by law from a descendant, father, or mother, and restrict the right to that part for a prodigal descendant or one burdened with debt. Several causes of unworthiness to succeed are likewise established.

n. 1047.

Who are legitimate heirs; what is their succession?

Legitimate heirs generally are those who are called to succession according to the disposition of the law, when the disposition of the deceased is lacking, either because he made no testament, or because he made an invalid testament, or because the instituted heir cannot or will not enter upon the inheritance. Moreover the law, by prerogative of order and degree, calls blood relatives to succession: descendants, ascendants, collaterals, the spouse, and, when these are lacking, the State. This is the order: Succession is deferred: 1. To descendants indefinitely. When these are lacking: 2. To ascendants, brothers, and their descendants, but not beyond the tenth degree, and to the spouse. When these also are lacking: 3. To other collaterals of the later order, i.e., paternal uncles, maternal uncles, paternal aunts, maternal aunts; and, when these are lacking, to their children, paternal cousins, maternal cousins, cousins through paternal aunts; and when these are lacking, to those who next descend from them, up to the tenth degree. This is the prerogative of order: legitimate descendants exclude all others, except duly acknowledged illegitimate children. C. I. 736. These illegitimate children exclude all collaterals. C. I. 743, 745. Ascendants and Brothers exclude collaterals of the later order. The spouse excludes all collaterals, whether of the prior or later order, but only after the sixth degree. C. I. 742, 755. This is the prerogative of degree: nearer persons of the same order exclude more remote persons in the same order. C. I. 720-724; C. G. 723, 725 ff., 731 ff.; C. H. 912-914; C. A. 727 ff.; C. L. 1969 ff.

Succession of descendants. Legitimate heirs in particular are, in the first place according to C. I. 736; C. G. 745, legitimate children, or their descendants, without distinction of primogeniture or sex, although born from different marriages. They succeed in equal portions and by heads if they are in the first degree and are called by reason of themselves. They succeed by stocks if they are called by right of representation. But the descendants of the deceased exclude the others from succession. According to C. I. 737, under the name of legitimate children are also comprehended legitimated and adoptive children, and their descendants. Adopted persons and their descendants indeed succeed to the adopter, but they are excluded from the succession of all relatives of the adopter. - But the inheritance of the adopted person does not pertain to the adoptive parents; and accordingly it returns to his own blood relatives. C. I. 210, 212, 737. Almost the same are the dispositions of C. A. 730-734; C. H. 930-934; C. He. 457 ff.; C. L. 1985 ff.
Succession of ascendants. When descendants are lacking, and likewise when brothers or sisters and their descendants are lacking, ascendants succeed, namely according to C. I. 738, 739, father and mother in equal portions, or, if either has died, the survivor alone. And when descendants, parents, brothers or sisters, and their descendants are lacking, ascendants of the paternal line succeed in half part of the goods, and ascendants of the maternal line in the other half part. If nevertheless ascendants are not in equal degree, the inheritance pertains to the nearer one.

If they concur with collaterals, according to C. I. 740, in no case can the portion of the parents be less than the triens, or third part. The remainder is divided among the brothers or sisters according to their number in equal portions. But consanguine or uterine brothers or sisters, whether they concur with full siblings or are alone, obtain half of the portion which pertains to full siblings. If they concur with the spouse, according to C. I. 754 they take the bes, or two thirds. According to C. G. 746, 747, when descendants are lacking, and likewise brothers or sisters and their descendants, the nearer ascendant from the paternal line and the nearer ascendant from the maternal line each receive a half part of the goods, the others being excluded. Ascendants, the other legitimate heirs being excluded, succeed to their descendants who have died without posterity, in those goods which they gave to those descendants, or in their price, if these have been alienated. If the deceased without offspring left both parents and brothers or sisters, or their descendants, according to C. G. 748, 751, 752, half of the inheritance must be divided between father and mother; the other half must be divided equally between brothers and sisters, if they were born from the same bed; otherwise if they were born from a different bed. But if only one of the parents survives, the portion of the brothers, sisters, or their descendants is the dodrans, or three fourths; only the fourth part is left to the surviving parent. The dispositions of C. A. you have in aa. 735 ff., and of C. L. 1493, 1996 ff. When descendants are lacking, if both parents are still living, the whole inheritance belongs to them in equal portions. According to C. He. 458, when descendants are lacking, the inheritance is devolved upon the parents of the stock of the parents. Father and mother succeed in equal portions. According to C. H. 935-938, in defect of descendants, ascendants exclude collaterals. Parents divide the inheritance between themselves in equal parts; and if only one survives, he receives all. - Grandfathers divide the inheritance equally between themselves if they are of the same line; or they divide it equally with others if they are of different lines, yet in such a way that half part yields to one line, the other half part to the other line.

Succession of collaterals. If someone dies without offspring and without parents, then his brothers and sisters, or their descendants, are called to succession, the rest being excluded. C. G. 750; C. I. 741. - According to C. I. art. cit. 741, consanguine and uterine brothers and sisters, concurring with full siblings, obtain half of the portion which pertains to full siblings. - If they concur with the spouse, they receive the bes, or two thirds. C. I. 754. - If they concur with ascendants, the triens being left to the parents, they themselves take the remainder in equal portions. C. I. 740. - But if they concur with spouse and ascendants, they take the triens, or third part. C. I. 740, 754. If someone dies without offspring, and without brothers and sisters and their descendants, and without ascendants of either line, half of the inheritance is deferred to the surviving ascendants, the other half to the nearer relatives of the other line; if nevertheless among the surviving ascendants there is father or mother, these have a right to the usufruct of the triens of the goods in which they do not succeed. C. G. 753, 754. - According to C. I. 742, 755, if someone leaves neither offspring, nor parents, nor other ascendants, nor brothers or sisters, the succession is deferred to the nearer relative or relatives without distinction of paternal or maternal line. But if a spouse is present, then two thirds fall to this spouse, and a triens to them. Relatives beyond the twelfth degree, namely the sixth according to canonical computation, do not succeed according to C. G. 755. When relatives are lacking in some line within the aforesaid degree, the whole inheritance pertains to the relatives of the other line. According to C. I. 742, succession is not extended beyond the tenth degree, namely the fifth according to canonical computation. So also according to Roman Law. The dispositions of C. A. you have in aa. 735 ff. When parents are lacking, the whole inheritance is divided between brothers and sisters in equal portions. But as regards other blood relatives, succession is not extended beyond the sixth line of consanguinity, namely the fifth degree according to Canon Law. According to C. He. 459, 460, in defect of descendants and heirs of the stock of the parents, the inheritance is devolved upon parents of the stock of grandparents. Grandfathers and grandmothers of the paternal and maternal line, if they live, succeed in every line in equal portions. If a grandfather and grandmother have died before, they are represented by their descendants, who succeed by stock in each degree. If a grandfather or grandmother of the paternal line or of the maternal line has died before, without his or her own descendants, the whole half part is devolved upon other heirs of the same line. If there are no heirs of the paternal or maternal line, the whole inheritance is devolved upon heirs of the other line. - With the stock of grandparents the succession of blood relatives of the parents ceases; nevertheless the usufruct is reserved to great-grandparents of the part devolved upon the descendants of their stock, if they were living, and great-uncles and great-aunts have this usufruct in representation of the great-grandparents who died before, from whom they descend, as long as they live. According to C. H. 921-927, 940-955, when descendants, ascendants, and legally recognized natural children are lacking, brothers succeed to the inheritance in equal parts. When brothers are lacking, the spouse succeeds to the whole inheritance. If there are brothers and spouse together, the spouse receives the usufruct of the part determined by law. But if brothers and spouse are lacking, other collaterals succeed up to the sixth degree by civil computation. Cf. aa. 918, 919. The nearer blood relative excludes the more remote, with the right of representation preserved, a. 921. According to C. L. 2000 ff., when descendants and ascendants are lacking, the heirs are brothers and their descendants.
Succession of natural children. Natural children, legally recognized, when natural and legitimate children exist, according to C. G. 723, 757, 758, have a right to the third part of the portion which they would have obtained if they had been natural and legitimate; to half of that portion, if there are no legitimate descendants and there are ascendants, or brothers or sisters; to the dodrans, if all these are lacking; and if moreover there is no relative who enjoys the right of succession, the whole inheritance pertains to them.

According to C. I. 744, 745, 746, 747, 749, natural children, legally recognized, when legitimate descendants exist, have a right to half of the portion which they would receive if they were legitimate. Natural children must furthermore impute into that portion whatever they may have received from the parent or parents, subject to collation, even if they have been dispensed from collation. - If the parent dies without legitimate offspring and their descendants, but leaves his parents, or one of them, or another ascendant, or a spouse, natural children succeed in two thirds of the inheritance; the remainder is deferred to the ascendants or spouse. - But if ascendants and spouse are present together, a third part of the inheritance pertains to the ascendants, a fourth to the spouse, and the remainder to the natural children. - If there are no legitimate descendants and ascendants nor spouse, the whole inheritance is devolved upon the natural children; but they have no right in the goods of relatives of the father or mother, just as those relatives have none in the goods of natural children. - According to C. I. 180, 752; C. G. 262, children born from adultery or incest are altogether excluded from succession, and have only a right to support, namely if the testator acknowledged them or if by the sentence of a judge they are established as such. Support is certainly owed to children by the law of nature. Hence they can never be deprived of it by the father. Struggl. tr. 7. q. 2. n. 15; L. 949, 951. If a natural child has neither descendants nor spouse, his inheritance is devolved upon the father and mother who acknowledged him, or upon only one of them, if only one acknowledged him. But if he leaves a surviving spouse, half part of the inheritance belongs to the spouse himself, and the other half to father and mother, or to only one of them, as was just said. C. I. 750, 751. - C. L. 1994, 1995. According to C. A. 752, 753, 756, legitimated natural children have the same rights as legitimate children. But illegitimate children also have the same rights as legitimate children in the succession ab intestato of the mother. They do not have a right in the succession ab intestato of the father. But in the succession of legitimated and illegitimate children, their parents reciprocally have the same right as they do as regards the inheritance of their own parents. - According to C. He. 461, natural blood parents have in the maternal kinship the same rights as legitimate persons. In the paternal kinship they are heirs only insofar as the natural child follows the status of the father by recognition or sentence of a judge. In concurrence with legitimate descendants of the father, the natural heir or his descendants obtain half of the part which the legitimate children and their descendants receive. According to C. H. 939-945, when descendants and ascendants are lacking, the inheritance is divided among legally recognized natural children. But if descendants or ascendants are present, they receive only the portion determined by the laws. But if they themselves die without legitimate posterity, their parents succeed to them. C. L. 1989 ff.

Succession of the spouse. According to C. G. 767, when all relatives are lacking within the twelfth degree, the spouse is called to succession, provided there was no divorce between them. According to C. I. 156, 158, 753-757, if legitimate children survive the deceased spouse, the surviving spouse, who had not been legally separated from the deceased spouse, succeeds to him in an equal part, the spouse being counted in the number of the children, as regards usufruct. If recognized natural children also concur with legitimate children, the usufruct of the spouse must be equal to the quota of the inheritance which pertains to the legitimate children. This portion of usufruct can never be greater than a fourth part. If legitimate offspring are lacking, if there are ascendants, or natural children, or brothers and sisters and their descendants, a triens of the inheritance in ownership is deferred to the surviving spouse; but if legitimate ascendants and natural children are present together, only a quadrans. If the deceased has left other relatives who have the right of succeeding, the surviving spouse obtains two trientes. If there are no relatives who have the right of succession within the sixth degree, the whole inheritance pertains to the surviving spouse. Moreover, whenever the spouse is called to succession with other heirs, he must compute in his hereditary portion whatever he has already obtained on account of matrimonial agreements and dotal gains. - If the spouse has been legally separated from the deceased spouse, then no right belongs to him. When separation is made by mutual consent, even before a tribunal and homologated, it is not regarded as made legally, and therefore does not prejudice the mutual rights of the spouses. The sentence must have been issued before the opening of the succession. But its effects obtain only against the spouse who is at fault, who also loses dotal gains and all useful things granted to him by the other spouse in the marriage contract, and likewise the legal usufruct. Nevertheless the spouses can by mutual consent render void the effects of judicial separation, either expressly or tacitly, by still living together peacefully, without authority intervening. According to C. A. 757 ff., to the surviving spouse, if there are children, there belongs a determined usufruct of a certain portion according to the number of children; if children are lacking, but there is another legitimate heir, a fourth part of the inheritance belongs to him. But if there is no other legitimate heir, the whole inheritance pertains to him. According to C. He. 462, when the deceased has left descendants, the spouse obtains, at his own choice, either half part of the succession in usufruct, or a fourth part in ownership. Concurring with heirs of the stock of the parents, he has a fourth part in ownership and three fourths in usufruct. Concurring with heirs of the stock of grandparents, he receives half part in ownership and the other half in usufruct. If heirs of one and the other stock are lacking, he receives the whole succession in ownership. As regards C. H., cf. what was said in the Succession of collaterals. According to C. L. 2003 ff., when descendants, ascendants, and brothers and their descendants are lacking, the spouse succeeds. When the aforementioned blood relatives and spouse are lacking, other transverse blood relatives succeed within the tenth degree.

Succession of the State. When all who have the right of succeeding are lacking, the inheritance is devolved upon the State. C. I. 758; C. G. 768; C. A. 760; C. H. 956-958; C. He. 466; C. L. 206 ff. C. B. 1924 ff. establishes five orders of successions. Blood relatives of the preceding order exclude blood relatives of the following orders, 1930. Representation is admitted only in the first three orders, 1924, 1925, 1926. In the fourth order the nearer blood relative excludes the rest, 1928. In the first order are the descendants of the deceased. Nearer descendants exclude descendants who are blood relatives of the deceased through their mediation. Children succeed in equal portions, 1924. In the second order are the father and mother of the deceased, and their descendants. Father and mother, if they are living, succeed alone in equal portions, 1925. In the third order are the grandfathers and grandmothers of the deceased and their descendants. If they themselves are still living, they alone succeed in equal portions, 1926. - In the fourth order are the great-grandfathers and great-grandmothers of the deceased and their descendants. If all the great-grandfathers and great-grandmothers are living, they alone succeed; if several, they succeed in equal parts. But if all have died, their descendant nearer in blood relationship succeeds to the deceased; and, if several are in the same degree, they succeed in equal parts, 1928. - In the fifth order succeed great-great-grandfathers and great-great-grandmothers and their descendants, 1929. A portion of goods is always reserved to the surviving spouse, varying according to the various blood relatives with whom he concurs, 1931 ff. - When blood relatives and spouse are lacking, the fisc succeeds, 1936.

By Canon Law, to clerics, as regards superfluous ecclesiastical goods left behind, there succeeds at present the Congregation of Spolia, unless a special Indult is present; as regards other goods, blood relatives succeed according to civil law, and when these are lacking, there succeeds either the Congregation of Spolia, or now the Congregation de Propaganda Fide for the support of missions, or, where this has not been received, the episcopal fisc, with the burden of expending them on pious causes. Reiff. h. t. n. 63. - Solemnly professed religious perpetually secularized cannot make a testament. The Congregation of Spolia succeeds to them, according to the Constitution of Gregory XIII Officii nostri, or now the Congregation de Propaganda Fide. But if they are secularized for a time, the right of succeeding to their inheritance pertains to their monastery, unless this is prohibited by the Constitutions of the Order. The goods of solemnly professed religious, if before profession they did not dispose of them, are devolved to the natural heirs if their religion is incapable of succession; but if it is capable of succession, they are devolved to the monastery. But all monasteries of regulars have the right of succeeding, except houses and Colleges of the Society of Jesus, and monasteries of the Friars Minor of the observance and of the Capuchins. Schmalzgr. 1. 3. p. 3. tit. 27. n. 67 ff.; Giraldi in 4. t. According to C. A. 761, the goods of a cleric ab intestato are divided in equal proportions among the church, the poor, and blood relatives. When a Bishop dies, there are owed to the Cathedral Church the sacred utensils enumerated in the Constitution of Pius IX Quum illud, June 1, 1847, which are not positively established either to have been donated to the Church or to have been acquired with the goods of the Church. And therefore Bishops are bound to make an inventory of these utensils and to declare whether they were acquired with their own expenses or with the goods of the Church. Cardinals Bishops are held to this same obligation, except suburbicarian Cardinals and Abbots nullius residing in the Roman curia. All their utensils, with whatever goods they were acquired, pertain to the pontifical sacristy. Relics of the Holy Cross are to be transmitted to their successors. - E. M. 1037, 1038, 1047. But if Bishops have governed several Churches, the sacred utensils destined for divine worship are to be divided among the several churches in which they resided, according to the norm of the same Constitution. - C. 1, 2 de Success. ab intest.

n. 1048.

What is a lying inheritance? - When the heir is not known, or those who are known have renounced the inheritance, the inheritance is called lying. To administer it a curator is appointed, who is obliged to all those things to which an heir with benefit of inventory is held. If after thirty years no one appears, it, as vacant, is prescribed to the fisc. C. I. 980, 983, 2135; Cod. proc. civ. 896; C. G. 811, 814.

n. 1049.

What is the right of accretion? The right of accretion is that right by which the parts of failing heirs or failing legatees in the same inheritance or in the same thing bequeathed are added to other coheirs or other colegatees. C. I. 879, 884; C. A. 560; C. H. 981; C. B. 2094, 2158. The right of accretion has place in an inheritance when, in the same testament and by one and the same disposition, the testator called heirs jointly to the inheritance, without making a distribution of parts among them by expressly indicating the quota of each. But when the right of accretion cannot have place among coheirs, the portion of the failing heir is devolved upon the legitimate heirs ab intestato.

C. I. 880, 881, 883; C. G. 1044; C. A. 560 ff.; C. H. 982 ff. The right of accretion also has place in succession ab intestato, for the part of him who renounces accrues to the coheirs, C. I. 940. The right of accretion is likewise had in a legacy, when one of the legatees dies before the testator, or renounces the legacy, or is incapable, or the condition under which the thing was bequeathed to him fails; indeed also when one and the same thing in the same testament has been bequeathed to several, although by distinct disposition. C. I. 884; C. G. 1045; C. A. 689. Heirs and legatees receiving the portions of others take on the burdens and obligations annexed to them. C. I. 882, 887; C. A. 563; C. B. 1935, 2095, 2159.

As regards usufruct specifically, the right of accretion is given even if the legatee has accepted it and then fails, if namely it has been left to several persons in such a way that, according to the general rule, the right of accretion is given among them. C. I. 885. - When by the will of the testator the right of accretion is excluded, the part of the failing heir pertains to intestate succession with the same burdens imposed by the testator. C. I. 883; C. A. 562, 563. - If the legatee fails, the creditor failing, the thing bequeathed accrues to the heirs, who consequently are bound to fulfill the burdens enjoined upon the legatee according to their hereditary portions. C. I. 886; C. L. 1852 ff.

n. 1050.

When, where, and how is the opening of inheritance had? Succession is opened, whether ab intestato or testamentary, at the very moment of the death of the testator, in the place of his last domicile, and immediate possession passes by full right to the heir, if he is capable. C. I. 923, 925; by full right, and accordingly without another juridical act, without any sentence of a judge. - If among two or more called to succession there is doubt which one died first, suppose in a common shipwreck, if this cannot be verified, all are supposed to have died at one point of time, and therefore there is no place for transmission of inheritance from one to another. C. I. 924; C. A. 25; C. B. 20; C. L. 1738. It is otherwise according to C. G. 720 ff. and L. 22, 23 de Reb. dub. Dig.

n. 1051.

What of accepting or repudiating an inheritance? - For accepting or repudiating an inheritance it is required first that it has been deferred, for of a living person there is no inheritance, and therefore there can be no acceptance or repudiation of it. C. I. 954; C. G. 791; C. H. 991.

Moreover it is required that he who accepts or repudiates it be capable of contracting obligation and of alienating. For, by accepting it, he as it were contracts with the hereditary creditors and legatees. But by repudiating it, he alienates the same. Hence a family council, guardian, or curator is needed for those who are under guardianship and curatorship. C. I. 226, 296, 930, 931, 932; C. G. 776; and according to C. G. and C. H., for wives the consent of the husband is also needed. C. H. 992-996. It is open to each person to accept or repudiate an inheritance, whether testamentary or legitimate. C. G. 775; C. H. 988; C. He. 566. The reason is that no one is bound to accept a benefit which is often burdened with great obligations. Nevertheless renunciation is not presumed, but must be proved, and must be made in juridical form. One will be able to repudiate if he has not previously taken away or concealed anything from it. C. I. 953; C. G. 792; C. H. 1002; C. He. 571. According to the same C. He. 566, repudiation of an inheritance is presumed when it would be notorious or would be established from official acts that the debts of the deceased are insoluble. Once the inheritance has been repudiated, the part of the repudiating person accrues to the other written coheirs, if they were instituted jointly; otherwise to the legitimate heirs; and if he himself alone had been instituted, it is deferred to the following degrees. C. I. 946, 948; C. G. 786. And, after repudiating the testament, one will be able to receive legacies perhaps left to him. C. I. 945; C. G. 845. After repudiating an inheritance, one can still enter upon it as long as it has not been entered upon by others. C. I. 950; C. G. 790. The right of entering upon an inheritance ends in thirty years. C. I. 943; C. G. 789.

An inheritance is accepted expressly or tacitly. - Expressly, when by any juridical act, or even by private writing, someone assumes the right and name of heir. C. I. 934; C. G. 778; C. H. 999. Tacitly, when someone does something which necessarily demonstrates the will of entering upon the inheritance and of conducting himself as heir. C. I. 934, 938, 965; C. G. 778, 780, 796; C. H. 999, 1000. An inheritance once entered upon cannot afterward be repudiated, even though debt appears which previously was hidden. C. I. 942; C. G. 783; C. H. 997. Nevertheless against entry, as also against repudiation, restitution in integrum is given to those who have suffered fraud or fear. C. I. 942; C. G. 783; C. H. 997. - He to whom an inheritance has been deferred, if he dies before accepting expressly or tacitly, transmits to his own heirs the right of accepting. C. I. 939; C. G. 781. If someone renounces an inheritance to the damage of creditors, the judge can permit them to enter upon the inheritance in his name. C. H. 1001; C. G. 789. - C. B. 1943 ff.; C. He. 572 ff.; C. L. 2021 ff.

But it can be accepted purely, or under benefit of inventory. C. I. 929, 944; C. G. 774, 775, 784; C. A. 800 ff.; C. H. 998, 1003, 1023; C. L. 2018 ff., 1792; C. He. 580. Sometimes the making of an inventory is necessary by law, as in an inheritance deferred to a minor, C. I. 930; C. G. 461, 776, and in an inheritance devolved upon some community. C. I. 932. - An heir can use the benefit of inventory, notwithstanding any prohibition of the testator. C. I. 956; C. H. 1010; C. B. 1993 ff.

An inventory is a description of the movable things which the deceased left, C. I. 496; C. G. 600, but here in reality it is a description of all the goods of the deceased, or of the whole patrimony, C. A. 223; of the goods and debts of the inheritance; and all who know the patrimonial state of the deceased, if they are required by the competent authority, are bound to manifest it. C. He. 581. The benefits of inventory, which must be made at a certain time and with a certain solemnity, C. I. 955 ff.; C. G. 793 ff.; C. H. 1011 ff.; C. A. 800 ff., are three. - The first is that the heir is not bound to pay hereditary debts and legacies beyond the strength of the inheritance, and he can cede it to creditors and legatees in order to exempt himself from the burden of paying. - The second is that the proper goods of the heir are not confused with the goods of the inheritance, and the heir preserves against the inheritance the right of demanding payment of his own creditors. C. I. 968; C. G. 803. The third is that in the administration entrusted to him, he is bound only for grave fault. C. I. 970; C. G. 804; C. H. 1023; C. B. 1970 ff., 1975 ff., 1993 ff.; C. He. 589; C. L. 2044 ff.; L. 961.

The inventory does not benefit him who, in making it, has concealed something by bad fraud, C. I. 967; C. G. 801; who has not duly sold the immovable goods of the inheritance, C. I. 973; C. G. 806; who by his own authority has sold movable hereditary things within five years, C. I. 974, or at any time according to C. G. 805. Namely, a benefited heir is almost an administrator of the inheritance. C. I. 969; C. G. 803.

n. 1052.

What are the rights and obligations of heirs? - Generally, heirs succeed to all the rights and burdens of the deceased, because they represent his person; only those are excepted which by their nature or by pact were affixed to the person of the deceased. For the heir does not succeed to the will of the deceased, but to his patrimony. Hence they acquire by full right ownership of the goods of the deceased, take on his obligations and debts, and must fulfill his will in the legacies. C. G. 724, 1009, 1012, 1013, 1017; C. A. 547, 548; C. B. 1967; C. L. 2014. As regards the mode of paying debts left by the deceased, each pays in proportion to his hereditary portion, and if because of a mortgage they are compelled to pay more, they have recourse against the others. For the division of things and burdens must be made by equal right among heirs, if there are several. C. I. 1029; C. G. 873. Cf. C. A. 550, 820, 821; L. 961. The division of inheritance can be rescinded if someone has been injured beyond a quadrans of his part. C. I. 1038; C. G. 887. Concerning this division of inheritance, cf. C. I. 984 ff., 1034 ff.; C. G. 815 ff., 883 ff. The heir is bound to sustain the expenses of the funeral. C. B. 1968; C. L. 1791 ff.; Lugo Resp. Mor. 1. 6. d. 13.

n. 1053.

What of the executor of a testament? - The executor of a testament is he whom the testator has named for executing the testamentary dispositions. - But if no one has been named, the execution of the testament pertains to the heirs; and as regards pious causes, if no executor has been designated, or the designated one is unwilling to perform the office, the Bishop of the place is executor. C. A. 817; C. H. 892, 911; C. L. 1893; C. Nos quidem 3 de Testam.; L. 936, 937, 938, 941; Trent sess. 22, c. 8 de R. - A testamentary executor is not compelled to take on the mandate. C. B. 2202. "Nevertheless one who refuses by that very fact loses the legacy, at least that which was left to him as reward for the office, and it yields to the other executors." L. 936; C. L. 1899. And certainly the execution of a testament contains a mandate gratuitous by its nature; for it is an office of a friend. C. L. 1892; Gousset on a. 1025. According to C. B. 2221; C. He. 517, he can demand suitable remuneration for his office. - But if he has accepted it, he must discharge his duty, and this under grave obligation. C. Ioannes 19 de Testam.; C. A. 816; C. H. 898-900, 908; C. He. 518; Lugo d. 24. n. 29; L. 941.

In order that someone be executor of a testament, it is necessary that he have the capacity of obliging himself. Hence interdicted persons, minors even with the consent of the guardian, and wives without the husband's consent cannot be executors. C. I. 904, 905, 1743; C. G. 1028-1030; C. H. 893; C. L. 1886, 1887; C. B. 2201. Religious can be executors by permission of their Prelate, unless the Rule of the Order stands in the way. C. Religiosus 2 de Testam. in 6; Clem. un. e.t.; L. 936. Several executors of a testament can be instituted, and when one is absent another can proceed to the execution of the testament. But all are obligated in solidum, unless the testator has established otherwise. C. Religiosus cit.; C. I. 903, 910; C. G. 1025, 1033; C. H. 894-897; C. B. 2197 ff., 2219, 2224. - A testamentary executor does not transmit this office to his own heirs, C. I. 909; C. G. 1032; C. H. 909, 910; C. B. 2225, nor can he delegate it to another, C. H. 909; C. L. 1906. The executor must watch: 1. That seals be affixed if among the heirs there are minors, interdicted persons, absentees, or a moral body, C. I. 908, or generally if there is danger lest anything be taken from the inheritance. C. L. 2010, 2064 ff. 2. That an inventory be made, with the nearest heir present or duly summoned. C. I. 908; C. G. 1031; C. B. 2215. 3. That movable things be sold if money for payment of legacies is lacking. C. I. 908; C. G. 1031. 4. That he urge the execution of the testament at the time prescribed by the testator, even sustaining litigation if necessary. C. I. 908; C. L. 1899. 5. He must render an account of his execution within the time defined by law: according to C. I. 908; C. G. 1031, within a year from the death of the testator. C. B. 2203; C. L. 1905; C. H. 907. 6. Meanwhile he administers the hereditary mass and takes possession of it and disposes of its objects. He can make gratuitous dispositions which answer to moral duty and propriety. C. B. 2205. 7. He is liable for loss inflicted if he violates the obligations incumbent upon him. C. B. 2219; C. L. 1909. 8. He can always legitimately renounce his office. C. B. 2226. Likewise he can be dismissed by decree of the tribunal for a grave cause. C. B. 2227. - C. H. 901-907.

Although the testator can grant to the testamentary executor immediate possession of all movable goods, or of a part of them, provided it does not exceed a year, nevertheless the heir will be able to disturb him from such possession if he supplies him with enough money necessary for paying the legacies of movables, or proves that he has already paid them, or provides security for paying in the modes prescribed by the testator. C. I. 906, 907; C. G. 1026, 1027; C. B. 2217. But expenses which are made by the executor for the sake of fulfilling his office must be paid from the hereditary things. C. G. 1034; C. I. 911; C. L. 1908. "All, whether priests or laymen, to whose trust legacies for pious causes have been entrusted, are bound to make the Bishop more certain of this as soon as possible; he has the right of watching over the administration and of consulting for the security of the same legacies." S. C. C., Aug. 7, 1909, A. A. S. v. 1, p. 766.

n. 1054.

He resolves: "In the forum of conscience, heirs and executors are bound under grave obligation immediately to fulfill legacies, especially pious ones, when they can." L. 941. Cf. St. Thomas, Quodl. 6, a. 13; C. A. 685. Nor indeed can they either reduce or diminish legacies, or in any way commute them or substitute another burden, unless the faculty for this has been given by the testator; for their office is to execute, not to invert, the will of the deceased. - If the legacies are profane and cannot be fulfilled in the mode in which they were left, they are caducous and yield to the heirs. It is otherwise concerning pious legacies; for the testator wished them to yield to the good of his soul. Cf. 1068.

C. B. 2203, 2216; Lugo Resp. Moral. 1. 4. d. 32.

n. 1055.

Whether an heir of a testament, or executor, who has not made an inventory, or has not made it rightly, is bound in conscience toward creditors and legatees, even beyond the strength of the inheritance? Resp. Affirmatively, if he omitted the inventory by bad fraud; since he was the cause of loss foreseen at least in confused fashion.

Negatively, if without sin he omitted to make the inventory; because the law is founded on a presumption of fact, namely that the inheritance was rich, and consequently on a presumption of fraud, which is absent. - Lugo d. 24. n. 232; Gousset 728 and on a. 802; L. 932, 971; C. L. 1792.

n. 1056.

What of possession of a legacy, and of its fruits and increases?

A legacy properly differs from an inheritance in that it is situated in a particular and determined thing, that it is owed by the heir, and that possession of it must be obtained from him. A legacy to a pious cause is excepted, however. For then the manifest will of the deceased suffices, and accordingly even the heir ab intestato, succeeding in place of the designated heir, will owe the legacy. But although the legatee must obtain possession of the legacy from the heir, and is bound to seek it from him, nevertheless ownership of the legacy, or the right to the thing, C. He. 543, 562; C. L. 1826, is acquired by the legatee from the death of the testator. C. I. 862, 863, 876; C. H. 881, 885; C. G. 1014, 1018; C. B. 2174, 2176. Cf. C. A. 684; C. B. 2160, 2161, 2180, 2181. - Hence necessary expenses for furnishing the legacy must be sustained by the inheritance. C. I. 877; C. G. 1016; C. H. 886; C. A. 690; C. L. 1842. But the fruits of the thing and the increase are owed to the legatee already from the death of the testator, if the legacy is of some farm, or capital, or another fruitful thing, or if the testator has expressly prescribed this. Otherwise the legatee cannot claim interest or fruits except from the day of judicial petition, or of the promised furnishing of the legacy. C. I. 864, 865. Cf. C. G. 1015; C. A. 686; C. H. 882-884; C. B. 2164, 2184, 2185; C. He. 485; C. L. 1840. - If the legatee dies before the inheritance has been entered upon by the heir, the legatee can transmit to his own heirs the ownership itself of the thing, if the thing was determined, or at least the right to the thing, if the thing was less determined. And, if the thing bequeathed has perished without fault of the heir, it has perished for the legatee. Inst. 1. 2. t. 20. § 16. - The legatee receiving a particular thing from the testator, as a certain donation, does not represent his person, nor consequently does he succeed to his rights and obligations. When an estate is bequeathed, all real burdens follow the legacy, but not likewise the debts with which perhaps it is burdened, unless the testator has disposed otherwise. C. I. 862, 878, 1033; C. G. 874, 1014, 1020, 1024; C. H. 881, 882; C. A. 662; L. 932.

n. 1057.

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

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

n. 1058.

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

n. 1059.

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

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

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

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

n. 1060.

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

n. 1061.

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

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

n. 1062.

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

…and 11 more passages — all of them are listed on the topic page.

Bucceroni, Cases of Conscience

Gennaro Bucceroni, S.J. — 158 passages

72. On Testament and on Legacy

Vincentius, an Italian, makes a holographic testament in this form: "I the undersigned institute as universal heir of all my goods my wife. - On the first day of January of the year one thousand eight hundred ninety-four. Vincentius de Vincentiis." He writes it in the Latin language and on common paper, not sealed with the seal of the kingdom. But he omits to note the place in which it was made. Likewise there is a blank after the words, I the undersigned [blank] institute, etc.; for he wished afterward to write his own name and surname. There is also another blank after the words, of all my goods [blank] my wife, etc.; for he also wished to add the name and surname of the wife. Then there are erasures of the words universal and goods, which afterward again are clearly written by the same hand of the testator. The word my is interposed between line and line. Finally three additions were added at different times, each of which is wholly written by the proper hand of the testator himself, with indication of the day, month, and year, which in the first addition is found at the end; in the second and third it is found at the beginning and is written not in letters, but in numbers. Finally, at the end, they were signed by the testator himself.

Q. 1. What is the form of a testament? 2. What as to the case?

R. To the first. Cf. I. M. 1026. - To the second. The testament of Vincentius is valid. For to the validity of a holographic testament only three things are required: 1. That the whole be written by the hand of the testator. Nor do blanks, or erasures, or interpositions hinder, provided all things are written integrally by the hand of the testator himself; so that if even one word is written by another hand, as a true part of the testament itself, the whole disposition is void. Nevertheless it must be established that the word added by another hand is a part of the testament; otherwise anyone, into whose hands it came, could make it void by adding a word. But it can be written in any language and on any paper. Law of 14 July 1866. Wherefore no fine as to paper is to be paid in Italy.

It is required that at the end or under the beginning of the disposition the day, month, and year in which it was made be indicated. And this can be effected either in numbers or in letters written out. If even the notation of the day alone is omitted, the testament is null; for example, if the date is noted thus: July 1873. But the place is not also necessarily to be indicated.

It is required that at the end it be signed by the testator himself. - The signature must altogether necessarily be last, and such that the identity of the person is established. Although it seems to suffice that the testator use that signature which he was accustomed to use in public acts and under which he is commonly known, as, for example, bishops are accustomed to sign acts with only the initial letters of the name, or only with the whole name, the dignity of the episcopate and the name of the diocese being added; nevertheless it is better to put the personal name and the surname of one's own family, and, if necessary, also other specifications to avoid every difficulty. But for a wife it is enough that she write her own personal name with the surname of the family of her husband.

Additions can afterward be made, provided, however, that all have the three noted conditions. - C. I. 774, 775; I. M. 1026.

Felix, the only son of Felicissimus, attacks the testament of his father, by which Felicissimus left half part of the patrimony to his nephew Adauctus, vindicating the whole patrimony for himself. A testament of this sort was: We leave all our goods, immovable and movable, to Felix our only son; nevertheless half part of the paternal patrimony we leave to our nephew Adauctus. On the feast of the Nativity of the Holy Year. - Felicissimus de Felicibus; Felicissima de Felicibus.

Q. Does Felix by right attack the testament?

R. Felix can by right attack the testament of his father and mother. For a testament cannot be made by two or several persons in the same act, neither for the benefit of a third party, nor by reciprocal disposition. C. I. 761; C. G. 968, 1097. For this hinders the freedom of revoking a testament. It must also be noted, as to the preceding testament, that the date of the feast of the Nativity also invalidates the testament in the case. For the date must altogether be written, although, as jurists think, it is not necessary that it be added in its specific form of day, month, year; but it suffices to add it equivalently, namely if the date is clear of itself, for example, on the feast of the Nativity of the year 1899. But in the case the date is doubtful and ambiguous; for it can be of the year 1899 and of the year 1900; indeed, rather, it can be of any other Holy Year. Besides, the preceding testament seems to be a holographic testament, and consequently the whole must be written by the hand of the testator. Wherefore, since it was written by one Felix alone or by one Felicissima, the testament is void also from this head.

Gerontius, lacking necessary heirs, soon to die, the notary having been called by him but not yet present, before the pastor and several women spontaneously declares that he leaves all his goods to Eugenius, his only natural heir, and to his friend Paulinus. Soon the notary is present, with the required witnesses and future heirs. But behold, while he interrogates the dying man, he himself can no longer speak. Nevertheless, when the pastor asks whether he holds ratified the will just now set forth by himself, he assents by a nod of the head and a little afterward dies. Eugenius, that he may receive the whole inheritance, immediately obtains from the judge the invalidation of the testament. But Paulinus, thus deprived of his right, by title of compensation keeps for himself both 10,000 lire which he had received as a loan from Gerontius and 1,000 lire which he secretly owed to Eugenius himself.

Q. What as to the case?

R. The testament of Gerontius is certainly valid by natural law. Wherefore Paulinus can altogether in conscience claim and keep the inheritance until it is made void by sentence of the judge. For the will of the testator is certainly established; and civil law does not declare void by full right a testament lacking the formalities of law. I. M. 1029.

But Eugenius legitimately invokes the invalidation of the testament. For that law, establishing various forms of testaments under penalty of invalidity, is just. But in the case from the prescription of the law it was altogether required that the testator himself declare his will viva voce before the notary and legitimate witnesses, all of whom afterward ought to have signed the testament. Wherefore it does not suffice that the sick man, being interrogated, answer affirmatively, whether by word or by nod of the head. I. M. 1026, 1029.

Paulinus before the sentence of the judge can indeed keep the 10,000 lire received as a loan from Gerontius, if these do not exceed the part of his inheritance. But he must altogether restore them, a legitimate sentence intervening, by which he is altogether cast out from the inheritance.

But Paulinus by no means can keep the 1,000 lire which he owes to Eugenius, whether before or after the sentence of the judge. For that money does not pertain to the inheritance, since it is not of Gerontius the testator, but of Eugenius the heir. Besides, before the sentence, Paulinus has only a probable right to the inheritance; but after the sentence he no longer has any right to the inheritance; but whether before or after the sentence, no injury has been done to him by Eugenius, and therefore he has no right at all to compensation, since there is no injured right to be compensated. - G. 829, 830, 831, 837, 839; I. M. 936, 1029. But cf. here n. 198, 200, 3.

Legitime of children. I. M. 1043. - 1. Ambrosius divided his whole patrimony by testament into two equal parts between his two sons. To one, however, whom he believed very suited to agriculture, he assigned the rural estates; but to the other, who was exercising the liberal profession of advocate, the urban estates. He who obtained the rural estates cannot stand by this division made by the father and contends that all the rural and urban estates must be divided equally between himself and his brother. Is this rightly?

R. Negatively. For the only thing which is owed to children is the legitime, which must be given from hereditary goods, and therefore cannot be supplied by another thing or by money. But by law only the quota part, not what sort, is established as to be left to necessary heirs. Therefore that son to whom the father left the rural estates cannot complain by right. - I. M. 1041-1043.

Sempronius dies in France, leaving two grandsons from his predeceased son. What is the legitime of those grandsons?

R. From French law 913, the legitime part of one son is a half, of two sons two thirds, of three or more three fourths. Moreover, since in the case two grandsons succeed who hold the place of the predeceased father, they themselves are computed as one person. Wherefore their legitime is a half, not two thirds.

Tullius in France left three sons. But one of them renounced the inheritance. Is the legitime of the other two sons two thirds or three fourths?

R. From French law 913, when a father dying leaves three sons or more, not heirs, their legitime is three fourths. But if he leaves two sons, not heirs, their legitime is two thirds. But Tullius in the case left three sons, although only two heirs. Therefore their legitime is three fourths, not two thirds. - I. M. 1040, 1043.

Legitime of children together with a wife. I. M. 1043. - 1. Aloysius by testament left 30,000 lire to Titus, his son from the first marriage; 40,000 lire to Caius, another son from the former marriage; 50,000 lire to Sempronius, the third son from the same marriage. What can he leave to the second wife?

R. The second wife cannot obtain a sum greater than 30,000 lire. For this is the part of the less-considered son of the prior marriage. - I. M. 1044, note.

Philippus instituted as heirs, in equal portions, his sons, to whom he leaves all his substance. But he leaves the universal usufruct to his spouse. Is this disposition valid?

R. The disposition of Philippus is valid. But if the sons are unwilling to consent to the aforesaid disposition, the disposable part in full dominion devolves to the spouse. C. I. 810.

Raphael, a French citizen, dies at Rome and leaves four sons, to whom by testament he assigns half part of the goods to be divided equally among them, and assigns the other half part, as freely disposable, to his wife. Did he act by right?

R. Raphael did not act by right. The reason is that C. I., Preliminary Disposition 8, establishes: "that legitimate and testamentary successions, as to the order of succeeding, as to the measure of rights of succession, and the intrinsic validity of dispositions, are governed by the national law of the person whose inheritance is in question, of whatever nature the goods may be, and in whatever region they may be found." Wherefore this is valid even if the goods are immovable and all are situated in Italy. Therefore the part owed to the widow of Raphael must be reduced to a fourth part. C. G. 920. For Raphael can dispose only of a fourth part according to C. G. 913; but by no means of a half part according to C. I. 805. But will the widow of Raphael be able in conscience to keep the whole, if his sons do not seek reduction? One must answer affirmatively. For reduction from C. G. 920, 921 is not had by the law itself, but must be sought, and cannot be sought except by those in whose favor the law constituted the reservation of goods.

Zacharias, dying, left a wife and two sons. One of these renounced the inheritance. In the computation of the legitime pertaining to the wife, ought he also to be enumerated?

R. Affirmatively. For from C. I. 812, 815, even a son who does not make part makes number. For children are computed for defining the legitime. Besides, a portion is assigned to the spouse, not that which belongs, but that which would belong, spetterebbe, to the individual sons. I. M. 1043.

Lucius died leaving a wife and one son. - Lucidus died leaving a wife and two sons. - Lucillus died leaving a wife and five sons. What is the legitime of the wife?

R. To the wife of Lucius there is owed in usufruct a fourth; to the wife of Lucidus a sixth; to the wife of Lucillus a twelfth is owed. The reason is that to the surviving spouse, not separated by a sentence which has passed into a judged thing, if children of the deceased are present, there is owed a part of usufruct, namely the virile share of the legitime of the children, the spouse being computed as if a child. C. I. 812; I. M. 1043.

Legitime of illegitimate children together with legitimate children, with ascendants, and without them. - 1. Ioannes has five natural and legitimate children, and two natural children only, but legally recognized. But he has a fortune of 28,000 lire. What is their legitime?

R. Since half part of the whole inheritance in the case is 14,000 lire, the legitimate children each obtain by title of legitime 2,800 lire. But since illegitimate children are present, and these must be computed with the legitimate, that for them half the quota part which would pertain to them if they were legitimate may be determined, and this part is to be deducted from the disposable part, it is clear that their legitime is 1,000 lire. For 14,000 lire divided among seven give 2,000 lire to each, of which the half is 1,000 lire, which are to be deducted from the disposable part. C. I. 815; I. M. 1043.

Alphonsus has no legitimate ascendant and descendant; he has one natural son, but legally recognized; he has a fortune of 60,000 lire. What is his legitimate part?

R. If the son had been natural and legitimate, his legitime would have been 30,000 lire, namely half. Since he is natural and illegitimate and the only one, his legitime is 20,000 lire, namely two thirds of the aforesaid quota. C. I. 816; I. M. 1043.

Sempronius leaves one illegitimate child and ascendants. What is the legitime of the illegitimate child, if he was duly acknowledged?

Vol. I, Treatise On Contracts, Second Part. On Contracts …, Sect. I, Ch. II, Article II. On the Various Species of Donations · Vol. I, Treatise On Contracts, Second Part. On Contracts …, Sect. I, Ch. II, Art. II, § II. On Testaments · Vol. I, Treatise On Contracts, Second Part. On Contracts …, Sect. I, Ch. II, Art. II, § II, Point I, Division, and Form of Testaments · Vol. I, Treatise On Contracts, Second Part. On Contracts …, Sect. I, Ch. II, Art. II, § II, Point III. On Testamentary Dispositions, or on Codicil and Legacy

R. The illegitimate child of Sempronius obtains a fourth, namely half of the part which would have fallen to him if he had been legitimate. C. I. 815.

n. 7.

Alienation of patrimony. - 1. Laurentius alienated his whole patrimony, that he might constitute for himself, his wife, and his children a life annuity. Did he act by right?

n. 7.

R. Laurentius acted by right. For he alienated the patrimony by an onerous title. But the law provided for children only as to liberalities and alienations carried out by gratuitous title. C. I. 805, 1791, 1794, etc.

n. 7.

Gabriel, during his life, alienated the whole disposable part of his patrimony, that he might found a hospital for the poor. But he reserved the whole legitime for his sons and wife. Did he act against the laws?

…and 118 more passages — all of them are listed on the topic page.

Gury-Ballerini, Compendium of Moral Theology (8th ed., 1884)

Jean-Pierre Gury, S.J.; notes by Antonio Ballerini, S.J. — 60 passages

Vol. I, Treatise On Contracts, Second Part. On Contracts …, Sect. I, Ch. II, Article II. On the Various Species of Donations

Namely: 1. on donation among the living; 2. by testament; 3. by reason of death; 4. through fideicommissum.

Vol. I, Treatise On Contracts, Second Part. On Contracts …, Sect. I, Ch. II, Art. II, § II. On Testaments

Namely: 1. on the nature, division, and form of testaments; 2. on the testator and heirs; 3. on testamentary dispositions; 4. on the revocation of testaments; 5. on the executor of the testament.

Vol. I, Treatise On Contracts, Second Part. On Contracts …, Sect. I, Ch. II, Art. II, § II, Point I, Division, and Form of Testaments

- 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:

I. From Common Law

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.

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.

II. From Gallic Law

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

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

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).

n. 815.

Conditions of Testaments

- 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.

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.

- 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).

- 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.

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.

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.

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.

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.

Vol. I, Treatise On Contracts, Second Part. On Contracts …, Sect. I, Ch. II, Art. II, § II, Point III. On Testamentary Dispositions, or on Codicil and Legacy

- I. A codicil, or little codex, is the last will of the deceased, less solemn and expressed outside the testament, by which he declares what he wishes to be done after his death concerning his things, without the direct institution of an heir. But a codicillary clause is a clause inserted into the testament itself, by which it is declared that if the testament is not valid because of some defect, nevertheless it ought to be valid by force of the codicil.

For a codicil, whether nuncupative, that is, had by living voice, or written, five witnesses suffice, even not asked, and even women. Thus from Roman Law. But in Gallic Law a codicil is not admitted.

II. A legacy is a certain donation left directly by the deceased to someone, and to be furnished by the heir.

A legacy can be: 1. pure or absolute, or conditioned; 2. universal, or particular; by universal title, e.g. I bequeath all movables; or by particular title, e.g. I bequeath such a sum. From Gallic Law no legacies are admitted unless they are included in the testament itself.

Questions. - It is asked, 1. Whether a legacy left to girls so that they may marry can by natural law be given to those who become Religious?

I reply affirmatively, if it was left to a determined person, unless it is otherwise established concerning the mind of the testator. - But negatively, if the legacy was left to indeterminate persons, because then testators rather intend to provide only for girls wishing to marry, lest they be exposed to seduction. Thus more commonly with St. Lig., n. 930, against others ¹.

¹ It will not seem idle to have observed that, even as regards this second member of the response, the affirmative sentence was approved by authors certainly grave. Add that the reason by which most were led into the negative sentence, as Cardinal De Lugo admits (disp. 24, n. 293), does not seem sufficiently efficacious. Whether he himself supplied a more efficacious one for this sentence which he set aside, let it be the judgment of the wiser. Surely, if an argument must be sought from the Authentic of Justinian, which all bring forward here, Lugo sincerely admits that the scope of the law is manifest, namely favor toward Religion. But if you turn to the scope of the testator establishing these dowries, namely, they say, so that girls might be rescued from the danger of prostitution who on account of poverty could not marry, indeed, are they any less freed from the same danger who on account of poverty could not enter a monastery? Or shall we say that the mind of the testator looked to this, that girls who are pressed by the evil-persuading hunger and straits of poverty could not withdraw themselves from this danger unless, the proposal of sacred marriage with Christ having been cast aside, they turned themselves to secular vows?

It is asked, 2. Whether a legacy left to girls so that they may marry can be given to girls who have already married without a dowry?

I reply affirmatively, if it is a question of determined girls, because it is presumed that the testator wished to provide for them altogether because of a special affection toward them, or so that, once married, they may live decently. - Otherwise, if it is a question of indeterminate girls, because then the testator is judged rather to have wished to assist those marrying, so that they may avoid the danger of prostitution. - St. Lig., ibid.

- It is asked, 3. What comes under the name of movables, or movable goods, in legacies?

I reply, 1. Movable goods are generally those which can be moved from place, such as clothing, animals, money, etc. Movable goods, movable things, movable, or even movables with opposition to immovables, sound the same.

I reply, 2. Movables, without addition and without determination, from Gallic Law are said to be all goods which are not immovables, except money, books, gems, coins, active debts, instruments of arts, linens for the use of the body, horses, arms, grains, wine, hay, and other similar things. Add those things concerning which particular commerce is exercised.

I reply, 3. From the same Gallic Law, furniture or movables precisely furnishing a house are wholly restricted to those things which are ordered to use or the ornament of habitation, such as seats, tables, cupboards, etc.

Vol. II, Bk. II, Tractate V: On Justice, Chapter IX: On Inheritance · Vol. II, Bk. II, Tractate V: On Justice, Ch. IX, Art. II, § 1. Juridical Exposition · Vol. II, Bk. II, Tractate V: On Justice, Ch. IX, Art. II, § 2. Moral Exposition · Vol. II, Bk. II, Tractate V: On Justice, Ch. IX, Art. III, § 2. Canonical and Moral Exposition

Hence: 1. The following are movables simply, or from the second class: silver furniture, animals except horses, linens except those which are applied to the use of the body.

…and 20 more passages — all of them are listed on the topic page.

Tanquerey

Adolphe Tanquerey, S.S. — 1 passage

Vol. III, Contracts, and the Obligat…, On the Virtue of Justice (…, Part II — Chapter II: On Contracts in Particular

n. 686.

§ III. On Testaments.

A testament is a revocable act, by which the testator disposes of his goods, or of a certain part of them, for the time following his death. - It is distinguished from donation: (a) because it is an act, not properly a contract; for it is not an agreement between the testator and the legatee, but an act by which the testator expresses his will, independently of any pact with another; (b) because it is essentially revocable until death, while donation is of itself irrevocable; (c) because it does not transfer rights actually, but only for the time following death. - We shall speak: 1. on the right of making a testament; 2. on the legal forms required for the validity of a testament; 3. on the rights and burdens of legatees; 4. on the cessation of a testament.

² Molina, tr. II, disp. 124-141; Lugo, disp. XXIV; Salmant., tr. XIV, cap. V, n. 1-76; Billuart, diss. II, art. 3; St. Alphonsus, n. 919-931; Carriere, n. 497-499; 559-605; Marres, lib. I, n. 294-380; Ball. P., n. 964-1083; Lehmk., n. 1160-1170; Pothier, Donations testamentaires, Paris, 1777; Troplong, Traite des donations et testaments, Paris, 1865; Baudry-Lacantinerie and Colin, Des donations et des testaments, Paris, 1899.

Vermeersch, Theologia Moralis

Arthur Vermeersch, S.J. — 21 passages

Vol. II, Bk. II, Tractate V: On Justice, Chapter IX: On Inheritance

Vol. I, Pt. II, Sect. II, Tr. VII, Diss. IV, Ch. II, ARTICLE III: On Hereditary Succession · Vol. I, Pt. II, Sect. II, Tr. VII, Diss. IV, Ch. II, Art. III, § 1. ON HEREDITARY SUCCESSION IN GENERAL · Vol. I, Pt. II, Sect. II, Tr. VII, Diss. IV, Ch. II, Art. III, § 2. ON LEGAL SUCCESSION · Vol. I, Pt. II, Sect. II, Tr. VII, Diss. IV, Ch. II, Art. III, § 3. ON TESTAMENTARY SUCCESSION

Utility. Although many particulars concerning entering upon and dividing an inheritance must be permitted to jurists, it is altogether opportune, indeed necessary, that the moral theologian possess accurately in mind certain more general things concerning this broad argument. Instructed by these notions, he will be able more easily to think rightly concerning positive law and prudently to solve cases or give counsels.

n. 538.

I. Definition. Inheritance is a mixed mode of acquiring by the law of nature and by positive law, by force of which one succeeds into the universality or a determined part of the patrimony or goods of another deceased person.

We call it a mixed mode, because by a certain natural right connected persons occupy the place of the deceased in goods which, by reason of the very connection, already seemed to pertain to them; but again the possessor himself of the goods or patrimony chooses and designates for himself a successor in his affairs; at the same time, however, many things concerning the persons who succeed and concerning the goods which they obtain and concerning the reason by which the peculiar will of the possessor is to be composed with the connatural right of the family would remain uncertain unless they were accurately defined by positive law.

Moreover in the definition we mention only universal succession or succession by universal title, because although, as we shall see, not in every law are all successors by universal title at the same time heirs, nevertheless it is certain that those who obtain only definite goods of the inheritance are not heirs but merely legatees.

n. 539.

II. The Twofold Proximate Source of Inheritance. One inheritance is legitimate, or from intestacy, but the other from testament. This will be better understood after a certain historical notion has been handed down.

n. 540.

Historical. 1. For, in the regions of Western culture, the right of inheritance is historically conceived according to a twofold reason. By Roman law, by which dominion and patrimony are considered more as something personal, individual, the heir properly comes to be from the will of the deceased, so that institution of the heir is the head and foundation of a testament. The legal ordering of succession then is judged merely to supply the testament and is established according to the presumed will of the deceased. In that law a twofold inheritance is distinguished: testamentary and legitimate or legal or from intestacy; but the principal one is testamentary.

On the contrary, by ancient Germanic law, and hence by Frankish law, by which patrimony is possessed rather as familial, God alone is said to make heirs; "heirs are begotten, not written." Wherefore Tacitus (Germanicus, 20) noted that there was no testament among the Germans. When afterwards, especially by the authority of the Church, testaments were introduced, these regarded the division and a certain attribution of goods, but not immediately the institution of an heir, so that there was one inheritance, i.e. the legitimate.
But by present-day laws a certain composition of each reason has been made. By French law, the more important inheritance, and the one more properly so called, is from intestacy; by testament legatees are made, yet in such a way that gradually, by the help of tribunals, their condition has become similar to that of heirs, at least when they are called by universal title. Likewise in the U.S.A., only heirs from intestacy are called heirs, while those who succeed from testament are called devisees and legatees. Yet by the full liberty of disposing which it recognizes for parents, the law of England imitates Roman law, while most Latin laws, by establishing a legitimate portion, have in part adopted Germanic principles. Nevertheless the order of succession in Latin law is made according to the presumed will of the deceased, with equality therefore observed among children, whom the father is presumed to affect with equal love; while in the law of England the solicitude of preserving the familial patrimony seems drawn from Germanic law.

An heir, in Latin law, continues the person of the deceased and therefore receives the goods and is held beyond the powers of the inheritance, just as, in Roman law, independently of the goods, he assumed the obligations of the deceased; while in the Code of Germany and the U.S.A. (except Louisiana, which, as was said, uses the Latin regime) the heir receives the goods immediately and is not bound to pay debts beyond the powers.

By international agreements the mode is defined by which laws concerning successions are applied to citizens in another region and to foreigners in one's own region. Frequent commerce among nations has made agreements of this kind necessary. Thus personal statutes are distinguished, which hold a citizen everywhere, and real statutes, which govern goods from the place where they exist.

n. 541.

III. Composition of the Inheritance. 1. In more than one law there has been instituted, in favor of heirs but not of creditors and legatees, the so-called collation of goods. By this institution, an heir who wishes to enter upon the inheritance (not therefore if he renounces the inheritance) is obliged by law to bring into the lying inheritance whatever, as capital, he has received from the author while living, by direct or indirect donation. And legacies themselves made to an heir are imputed to the hereditary part. This is done from the presumed will of the donor or testator, who is judged to have wished to preserve equality among the heirs. Wherefore, after signifying his will, the donor can, within the limits of his faculty of disposing, exempt the donee or legatee from this obligation. It is enough, for example, that in the testament he say: I bequeath beyond or outside the legal part (par préciput et hors part). And of themselves, on account of a different presumption recognized by the law itself, some things, such as support and gifts customarily made, moderate donations from hand to hand, are exempted from collation to be made.

But in the forum of conscience, a tacit remission of collation, provided it is certain, can suffice.

The goods of the deceased either are judged to constitute one patrimony, as in Latin law, or, on the contrary, several masses are distinguished, either from origin or from nature. Thus, in England and in the U.S.A., goods are distinguished which constitute real property and goods which are personal estate or personality. Social considerations have now tempered Latin law by exempting, under certain laws, the family house or homestead from necessary division among the heirs.

n. 542.

IV. Acquisition of the Inheritance. 1. Possession, in several present-day laws, belongs to the legitimate heir from the first moment at which their author died, and without any apprehension of goods; nor does there exist of itself that lying inheritance of Roman law, the very possession of which had to be acquired. Thus in Italian and French law, and something similar in most Federated States of North America, is had. Therefore the possession of the deceased continues in the heir, sometimes also in the universal legatee. This possession is called in French la saisine héréditaire.

Perfect acquisition nevertheless does not happen without acceptance. Entry upon the inheritance can be made by an express or tacit act: as if the heir performs those things which only an accepting heir can legitimately do. He who dies before he has pronounced his will concerning the inheritance transfers the faculty of accepting to his heirs. Acceptance must be made absolutely. Yet in Italian, French, and generally in Latin law, the inheritance can be accepted either simply or with an inventory reserved (con beneficio d'inventario). This is the force of that clause, that if the inventory has been duly made within the stated time, the heir can accept the succession without the obligation of paying debts beyond the powers of the inheritance. But because simple repudiation is judged to honor the deceased little, acceptance with reservation of inventory is a mode of reconciling the honor of the deceased with one's own economic utility.
Renunciation of the inheritance is made, in the law which we use, by declaration before the conciliating judge or praetor. It admits no condition or limitation. But by Italian and French law someone can refuse to succeed from testament and accept the inheritance as legitimate heir; while German and Swiss law prohibits him from rendering various wills and legacies of the testator ineffective by an option of this kind.

But what if the heir neither positively accepts nor positively repudiates the inheritance? For the most part there will be another, for example a creditor, who will compel him to do something definite. But if he has had to do nothing, it is not clear in our law whether, after thirty years, the faculty of renouncing or the faculty of accepting has been prescribed. In Italy rather the faculty of accepting is thought to have been extinguished.

As to the mode of acquiring, there is to be distinguished an acquisition made in one's own name and the acquisition of one who enters upon the inheritance as representing a deceased parent. If the inheritance is entered upon in one's own name, division is made into individual heads, or man by man; but if the heirs come as representing the author, division is made into stocks, i.e. they receive together, afterwards to be divided among themselves, the part which that parent would have obtained if he had lived. This case especially occurs when, in place of the deceased father, the children have to enter upon the inheritance of the grandfather or even of the uncle.
Renunciation of the inheritance of a living person is generally invalid; but agreements concerning future succession are admitted by one law and excluded by another.

Vol. II, Bk. II, Tractate V: On Justice, Ch. IX, Art. II, § 1. Juridical Exposition

n. 543.

I. Distinction of Heirs. Some heirs are simply legitimate, who are called unless they are excluded by testament; others are necessary (legitimari), who cannot be excluded wholly. Yet this distinction does not exist in every law. Necessary heirs are offspring, for the most part also parents and ascendants, rarely, but for example in the Swiss Code (470-471), brothers and sisters. Quite often today the surviving spouse cannot be excluded fully. Observe that, if you except the spouse, the rest are not called, much less are they necessary, unless the offspring of the deceased are lacking. Commonly some part is to be reserved to the illegitimate child himself.

The quantity to be reserved is either a determined part of the inheritance itself or a determined part of the portion which falls to them from intestacy.

Thus by Italian law (805 ff.) half the inheritance must be reserved for offspring, but a third for ascendants, if they are called because offspring are lacking. A portion of usufruct is reserved for the spouse. In French and Belgian law (913-914), and Swiss law (960 ff.), the part varies according to the number of children. For to one legitimate child half the inheritance is reserved, to two two-thirds, to three or more three-fourths. To ascendants a fourth or half part of the inheritance is to be reserved according as they survive in one line only or in both. - By the German Code (2303), half the portion assigned by law is to be reserved to offspring, to father and mother, and to the surviving spouse. - In more than one republic of Latin America, freedom of testating is restricted only by the obligation of support or suitable sustenance. Thus in Costa Rican law, 595; in Honduran law, 1118, 1119; in Mexican law, 3323, 3324; in Nicaraguan law, 1184 ff.; in Salvadorian law, 1153; while in the republic of Argentina (3627), the reservation can reach four-fifths. In England there is full freedom of testating, except for the regime of certain goods which are called entailed. Nor is freedom of testating limited by the Canadian Code Q. 831. In the U.S.A. certain States have restricted this freedom at least concerning pious legacies.

A twofold line of blood relatives is distinguished: direct, which is constituted by persons of whom one has origin from another immediately or mediately (lineal consanguinity), and transverse or collateral (collateral consanguinity), which embraces persons who have a common author with the deceased. Here there are to be distinguished the full-blood relatives (whole blood), who by reason of each parent are related by blood to the deceased, and others (half blood), who by reason of only one parent are related by blood; then more strictly those are called consanguinei who are such by reason of the father alone, while those who are joined by reason of the mother alone are called uterine.

While in canon law and also Anglo-American law, the degree is always estimated from the greater or lesser distance from the common author himself, so that if, in the collateral line, they are separated by unequal distance from that author, the degree is defined by the greater distance, in French, Italian, German law, etc., even in the collateral line, there are as many degrees as there are generations by which one is distant from the other.

n. 544.

II. General Rules. 1. Inheritance from intestacy is deferred to those proximately joined. Yet regard is had to consanguinity alone, with affinity neglected, if you except the spouse, whom recent laws have begun to favor more than formerly.

Descendants for the most part exclude all others; while proximate collaterals are accustomed to concur with ascendants.
Among brothers, the full-blood commonly obtain a greater part than those who have only the father or mother in common.
When the regime of community has prevailed between spouses, that community necessarily has an end by the death of one; and the surviving spouse obtains, as partner, half the common goods and burdens. If the survivor is the wife, since for the most part she has had no part in administering the community, there is also granted to her the option of reserving the inventory, for prudently defining whether it is expedient to accept or repudiate the part of the patrimony.
Natural children succeed from intestacy only to the parents by whom they have been acknowledged. If they concur with legitimate children, they can acquire nothing beyond the part assigned to them by law. Sometimes only support can be bequeathed to adulterine or spurious children.
As to professed religious, those professed of simple vows of themselves acquire for themselves inheritances deferred to them. Do they need, from the vow of poverty, the license of Superiors for acquiring or repudiating them? The Constitutions are to be seen. The obligation cannot be demonstrated from common law. Those professed of solemn vows cannot, from common law, acquire the same inheritances for themselves. But in an Order capable of possessing, they acquire them for the monastery (i.e. the convent or province); in an Order incapable, for the Holy See. Yet in either case, it must be seen whether before solemn profession they had disposed otherwise concerning these inheritances. For renunciation concerning present goods is commanded to be made by c. 581, but concerning future goods it is not prohibited.

n. 545.

III. Examples of Civil Regime. A. Sketch of the Italian Regime,. to which the French, Belgian, Dutch, and several others are similar. Observe, however, that by some recent laws the right of succession from intestacy in the collateral line has been more circumscribed. For by the Belgian fiscal law of 11 Oct. 1919, collaterals beyond the fourth degree are no longer called from intestacy unless they have origin from a brother or sister of the deceased and thus represent a brother or sister. The French law of 31 Dec. 1919 excluded collaterals beyond the sixth degree from succession from intestacy, unless they were the offspring of a brother or sister; in which case it is enough that they be joined within the twelfth degree. The Dutch law of 17 Feb. 1923 established almost the same.

Therefore, by Italian law four orders of heirs are distinguished: 1. those who are called by right of family: legitimate blood relatives; 2. those who are called by right of blood: natural blood relatives; 3. he who is called by right of marriage: the surviving spouse; 4. he who comes by right of sovereignty: the State. Those who precede in order must not rarely concur with a successor of an inferior order.

Legitimate descendants are preferred to all others, with a certain right of the natural child and of the surviving spouse nevertheless preserved. In the first degree, succession is made by heads; but by stocks when some represent a deceased father or ascendant. - 2. After legitimate descendants, the legitimate or natural father and mother come with equal right, or either one surviving. If both are lacking, the inheritance is devolved to the nearer ascendant. If there are several of equal degree, one half part yields to the ascendants of the paternal line, the other to the ascendants of the maternal line. At the same time the surviving spouse concurs, so that, according to the various case, he or she receives a third or fourth part of the inheritance (C. Ital. art. 751). - 3. After ascendants, or rather together with them, brothers and sisters or their descendants are called, and these indeed by right of representation. Full-blood brothers obtain twice as much as consanguine or uterine brothers. But the same collaterals concur with the parents or ascendants of the deceased, yet in such a way that a third part of the inheritance comes to the ascendants; and with the spouse, to whom a third part of the inheritance is owed. - 4. After them other nearer blood relatives are called, but not beyond the tenth degree. Yet the surviving spouse receives two-thirds of the inheritance; indeed the whole inheritance if the blood relatives are more remote than the sixth degree. - 5. If these are lacking, the treasury comes. - To natural children a certain portion is reserved in the inheritance of the parents alone. - But to the spouse there falls, according to the various case, usufruct or even dominion, in part or in whole, of the inheritance.

n. 546.

B. Sketch of the German Regime. By the Code of Germany (1924-1936), five successive orders are distinguished. The first order contains only descendants of the deceased, either in their own name, if they are immediate, or children, or as representing a parent (1924); but the inheritance is divided equally among the children. The second order embraces the father and mother of the deceased and their descendants. If both father and mother live, each obtains half the inheritance; if either one is dead, the descendants from that one divide among themselves half the part of the inheritance. If descendants are lacking, the whole is devolved to the surviving parent. If each parent has died, half the part is attributed to the offspring of the father, half to the offspring of the mother, so that full-blood brothers have a part in each line. The inheritance is divided equally among brothers and sisters; nephews and nieces, however, are called by right of representation (1925). The third order includes grandfathers and grandmothers and those descending from them, and the matter is disposed as for the second order. But if no one is found in that order, great-grandfathers and great-grandmothers or those descending from them are called to the inheritance in a similar manner. The fourth order retains great-great-grandfathers and great-great-grandmothers or those sprung from them. In this order division is made only by heads. Finally, the fifth order is composed of more remote ancestors and their posterity, without any right of representation.

Therefore the perpetual rule is that when the inheritance cannot be attributed to the children or posterity of the deceased, the parent is preferred to the posterity born from him.

The surviving spouse obtains a fourth part of the inheritance if there are heirs of the first order; half, if the inheritance is devolved to the second order. But he or she excludes the later orders, unless great-grandfathers or great-great-grandfathers are present: to these he or she must yield half the part. Besides, when he or she concurs with another order or with ancestors, he or she can take for himself or herself the household furniture beyond his or her portion.

If other heirs are lacking, the treasury can take the inheritance.

n. 547.

C. Sketch of the English Regime. In deferring inheritance from intestacy, that property which is called Personal Property and that which is named Real Property are to be distinguished (cf. above n. 353).

Real Property, if there is no offspring, is deferred to the nearest male heir. But if offspring is had, it is attributed to the eldest son or, if he has died, to his son. If all male offspring is lacking, dominion is adjudged jointly to all daughters.

Personal Property is divided in such a way that a third part falls to the widow, and the remaining two parts to the children without distinction of sex.

If the wife herself dies without testament, her patrimony is attributed to the husband, or, if he has died, to the offspring.

n. 548.

D. Sketch of the Regime of the U.S.A. (except Louisiana). The matter is committed to be ordered by the individual States. Everywhere the children or posterity of the deceased are called first, and in such a way that children or the posterity of children come by right of representation. If offspring is lacking, brothers, sisters, and parents of the deceased come; but in various ways the rights of parents are composed with the rights of brothers and sisters.

From common law, brothers not full-blood had a part in those goods alone which make up personality; but this law has been changed in many States, so that either all brothers are in an equal place, or the full-blood receive double.

In many States all the rights of children fall to adopted children.

From common law, illegitimate children were children of no one, without any right of inheritance. Now they succeed to the mother and for the most part also to the father if they have been acknowledged.

Almost everywhere a dower from the inheritance (dower) is attributed to the widow; in some States a similar right under the name curtesy subsists in favor of the surviving husband.

Besides, the surviving spouse obtains a place among the heirs themselves, which varies according to the various States, nor is it always the same for the husband as for the wife.

Vol. II, Bk. II, Tractate V: On Justice, Ch. IX, Art. II, § 2. Moral Exposition

n. 549.

I. Obligation of the Laws. Laws by which the order of succession is defined oblige conscience even before the sentence of the judge.

II. On the Wife and Children of a Merely Civil Marriage. Since civil laws not rarely estimate legitimacy from civil marriage alone, the question arises whether children born from a merely civil marriage can accept an inheritance, especially if other children were born from a merely religious marriage. They seem able to accept the goods, but they succeed into the obligations of piety by which the parents were held toward their truly legitimate children: to these they owed at least support according to their condition. Cf. d'Annibale, II, 342, 22; Piscetta-Gennaro, III, 930-932. The reason is that legitimate children from the law of nature do not have a strict right except to such support, and in present-day society, that public peace may be secure, it is tolerated that temporal affairs be ordered according to the institution of civil marriage, while the right which natural law has conferred remains certainly intact.

But if a child who is legitimate only civilly has rendered juridically ineffective a testament by which a parent wished to favor his truly legitimate children, Piscetta-Gennaro, III, 932, rightly, as it seems, recognize for these children the right of occult compensation. Nor do they dare to condemn the same children if, even without a testament, they secretly take the portion which civil law has reserved for legitimate children.

More difficult to us seems the solution of Card. Gennari (Consultazioni morali, t. 1, Cons. XXIV, al quarto) by which he denies to a merely civil wife the faculty of accepting and keeping from intestacy what the civil law attributes to a widow, and wishes that the inheritance from intestacy be divided according to true legitimacy. Namely, what civil law attributes to legitimate wife and children, the Most Eminent man adjudges to the woman and children who, according to the same civil law, are not legitimate. Will this half-use of civil law, against the will of the legislator, be accepted by all? This certainly was not admitted by C. d'Annibale, l.c.

III. On Collation of Goods. Since this obligation of bringing goods into collation rests upon the presumed will of the donor, as often as the donee is certain concerning an absolute will of donating, he can accept the goods, not report them, and dissemble. And in French law collation is not to be made unless it is sought by the other heirs.

V. On Debts to Be Paid. From the law of nature, heirs are not bound to pay debts beyond the powers of the inheritance.

Indeed, there are those who, judging the stricter disposition of law to be founded in the presumption of fraud or of voluntary consent, pronounce heirs immune from this obligation, even after the sentence of the judge. Yet at the same time they are accustomed to permit creditors to urge their civil right. Therefore occult compensation to him who had to pay more does not seem able to be permitted.

Vol. II, Bk. II, Tractate V: On Justice, Ch. IX, Art. III, § 2. Canonical and Moral Exposition

n. 558.

I. Canonical Exposition

Use and Tenor of Canonical Law. 1. Although by the general disposition of c. 1529 civil laws concerning contracts are canonized, nevertheless c. 1513 wishes those things to be firm which have been disposed "for pious causes, whether by an act inter vivos or by an act mortis causa," and therefore whether by testament or by donation mortis causa, by a person who by natural and ecclesiastical law, civil incapacity therefore not being considered, is freely able to establish concerning his goods. Wherefore heirs are to be admonished to fulfill the wills of the testator, even those which are destitute of civil solemnities. And he who, even through trust, has obtained a legacy and has refused to fulfill it must be compelled to this by the Ordinary, even by censure (c. 2348).

As to the solemnities required, in the external forum canonical proof, by two witnesses or by the hand of the testator, is required and suffices.
As to execution, "Ordinaries^¹ are the executors of all pious wills, both mortis causa and inter vivos" (c. 1515). Others, however, can be designated by the testator. But these, when they have discharged the office, must render an account to the Ordinaries. Clauses contrary to this right of Ordinaries, which have been added to last wills, are to be held as not added (c. 1515, § 3).

By the law here constituted, unless the executor has refused or resigned the office, or unless he had to be removed, it is not lawful for the Ordinary to substitute an executor for him whom the testator has designated, or to undertake the administration himself; but he is rather given in aid to the legal and testamentary executors. Cf. d'Annibale, II, 369.

Commutation properly so called of pious legacies which can be fulfilled by execution, even if a proportionate cause is present, is reserved to the Holy See, unless the testator has given this power to the Ordinary (c. 1517, § 1).

But if an obstacle of law or fact has impeded execution, then there is place for commutation understood more broadly, by which the will of the testator is preserved in the better way in which it can be, but either the burdens are diminished or they are converted into similar ones. Excepting the reduction of Masses, this commutation is also permitted to the Ordinary, after those whose interest is involved have been heard, c. 1517, § 2. Cf. Piscetta-Gennaro, II, 950.

¹ The Code does not say "Ordinaries of places."

n. 559.

II. Moral Exposition

I. Obligation of Making a Testament. 1. As to the active use of the faculty of making a testament, he must make a testament from commutative justice who by this means alone can fulfill an obligation of justice, for example restitution; from piety and charity, he who by this means alone can provide either for a surviving spouse, or for a legitimate child from a marriage not civilly acknowledged, or for an illegitimate child not legally acknowledged; he who by a testament can prevent grave lawsuits, for example concerning the division of goods; he who must take care lest a minor son be committed to a very bad tutor; he who by a testament can snatch the inheritance from one who would abuse it. - In the testament itself, brothers or sisters gravely in need cannot be passed over without a grave injury of piety, even in order to succor other poor persons or pious causes. St. Alphonsus, l. 3, n. 946. If they are simply poor, or if there is question of other blood relatives, there is only a light obligation of preferring them per se to strangers. Of itself, he is not to be blamed who, moved by no hatred, passes over blood relatives not in need or divides goods unequally among children. But neither is to be done without a just cause, lest cooperation be furnished for foreseen quarrels, dissensions, and enmities, yet of itself venial, since the testator uses his own right and the evils which follow are rather to be attributed to the avarice of the heirs. Just cause for passing over blood relatives can be higher and pious ends to which someone wishes to consecrate his goods; and for unequal partition among children, the greater merits and services of one, the greater need of another, and like reasons.

n. 560.

II. On Inofficious Testaments. In the forum of conscience, parents who make inofficious donations or legacies, whether openly or in a disguised form, a) do not violate commutative justice; b) they will be able gravely to violate piety, if without grave cause they have harmed the legitimate portion. Indeed, since liberty of making a testament seems to be restricted too much by our laws, any truly reasonable cause will excuse them from sin. Donataries or legatees, at least with justice uninjured, before the sentence of the judge preserve what they already possessed before the death of the testator or donor, or what they acquire by voluntary execution. Whether they violate another virtue must be gathered from the circumstances. - Necessary heirs can act for the reduction of dispositions, even if they have been made in favor of a pious cause.

n. 561.

III. Promise Not to Revoke a Testament. A sworn promise not to revoke testaments begets no obligation of justice, but, at most, only one of religion, which can be relaxed by ecclesiastical authority. Concerning the canonical value of the same promise doubt can be had today, since from c. 1529, in the matter of contracts, just civil laws are to be observed. If, however, the promisor has wished in this way to dispose irrevocably in the present concerning his inheritance, this disposition for pious causes will be valid by c. 1513 in the canonical forum and in conscience.

n. 562.

IV. Interpretation of a Testament. The clauses of a testament are to be interpreted according to the reasonable will of the testator. The time within which they are to be executed is defined by law and usages. The designation of a pious cause is presumed to have been made demonstratively, not taxatively, so that if the expressed application becomes impossible, another pious cause, as similar as can be, is substituted by the judgment of the bishop and with the executor assenting, unless he dissents without just cause. But the heir or executor who has handed over to an upright priest a sum of money for a definite number of Masses, after obtaining testimony, even oral, of the burden accepted and the stipend received, is freed from his obligation. Cf. c. 839.

n. 563.

V. Force of an Inform Testament. On account of various controversies about the origin of the right of making a testament and about the mind of the legislator, to whom some ascribe the will of wholly invalidating inform testaments, others only the will of making them rescindable, practically the heir is not bound to execute the profane dispositions of an inform testament; but the legatee is bound neither to restore what has been accepted nor to warn the heir about the defect of the testament. But if the heir acts, if the civil law is clear, the legatee ought rather to yield from charity already before the sentence. Today the right of occult compensation seems to have to be denied to the legatee from an inform testament. But he is not judged to compensate himself who secretly takes from the still undivided mass of the inheritance. Nevertheless, to the judge asking and tendering an oath, he will have to respond sincerely. If the sentence of the judge has intervened, it will have to be stood by. Yet the heir per se is held by the promise by which he promised the testator the execution of a will not solemnly expressed. By what kind of obligation? This must be prudently gathered from his mind and from the circumstances. The obligation will necessarily be one of strict justice, if in this way he impeded the will from being expressed in solemn form, or if the goods came to him on account of that promise.

n. 564.

VI. Testament for Pious Causes. 1. A pious cause or pious matter is called "whatever chiefly is done with regard for God and a supernatural end, to merit grace or glory before God, or in satisfaction for one's own or another's sins" (Molina, Iust., d. 134, 1). Therefore today, on account of secularized hospices and the preaching of a merely natural altruism, what is conferred from human philanthropy upon lay institutes is not judged to have been given to pious causes.

That the heir or the burdened person be obligated, he must be certain concerning the absolute will of the deceased, for example because he has recognized the hand of the testator, or because the dying man manifested his will to him; nor must he believe one witness, even a very approved one. This is gathered from c. Relatum, II, De Test. (III, 26). With that certain knowledge supposed:
Because both the capacity of persons and the form here are to be estimated from canonical law, heirs cannot use merely civil nullity in order to omit pious legacies canonically efficacious. Yet it must be confessed, as Piscetta and Gennaro observe, that canon 1513, § 2, is conceived in words which introduce doubt concerning a strict obligation, since it is not said, "the heirs are to be admonished concerning the obligation of conscience of fulfilling the will of the testator," but it is merely prescribed, "they are to be admonished that they fulfill the will of the testator." But this tempered manner of speaking is explained both by solicitude to avoid difficulties of the civil external forum, and by ecclesiastical prudence and moderation, which does not wish souls to perish on account of temporal goods. Wherefore an admonition which is certainly foreseen as useless can be omitted; and it is to be made in such a way that, with offense of persons avoided, it may persuade resisting heirs toward the way of recourse to the Holy See for an amicable composition.

Fideicommissary substitution also for pious causes will have to be executed. And the heir who, relying on French law, has rejected the legatee on whom a pious burden was imposed, in the place of the legatee and similarly as he, will be held by the obligation of executing the substitution. If the cause was profane, the legatee, if the law, as for example Italian law, invalidates only the obligation of the fideicommissum, will per se be able to accept the legacy and not fulfill the burden. But if at the same time the legacy is invalidated, the matter will depend on the prevailing will of the testator, according as he, the burden not being fulfilled, would have preferred the thing to be possessed by the heir or by the legatee.

n. 565.

Summary

I. Common Notions. Inheritance is a mixed mode of acquiring by natural law and by positive law, by force of which one succeeds into the universality or a proportionate part of the patrimony or goods of another person deceased.

Inheritance is distinguished as from intestacy and from testament.

Because hereditary transmission to connected persons and transmission according to the will of him whose patrimony it was are founded in the law of nature, which nevertheless must be completed and determined by positive law, inheritance is said to be a mixed mode of acquiring. But the succession of the heir is always into the universality or a proportionate part of the goods. He to whom a thing as particular is devolved is a legatee, not at all an heir.

II. Legitimate inheritance, or that which is deferred by law, varies, according to various laws, in principles, in ordering, and in effect.

In principles: either the law is judged to supply the will of the deceased, or to call the heir as if in the name of God, or to attribute the right of succeeding according to both reasons.
In ordering: some laws, according to the origin of the goods, divide the inheritance into two parts, one appointed to relatives of the paternal line, the other to relatives of the maternal line; while other laws divide the mass without that distinction; division is sometimes made by heads, sometimes by stocks; ascendants sometimes exclude collaterals or concur with collaterals. The right of the surviving spouse varies, as does the degree of consanguinity beyond which succession does not occur; the mode also varies by which illegitimate children or descendants are admitted to succession. The option of succeeding from testament or from law, to be left or taken away from intestacy, can exist.
In effect. The possession of the heir can begin either from the moment of death or from the acceptance or reception of the goods; positive acceptance can be required, or non-repudiation can suffice; simple acceptance and acceptance under a mode, for example with inventory reserved, are distinguished; hereditary succession can take place into the patrimony in such a way that the heir is held for debts even beyond the powers of the inheritance, or it can be limited to the goods, so that beyond the accepted goods the heir is bound to pay no debt.

Everywhere, morally, heirs simply legitimate or legal, who are called unless they are excluded by testament, and necessary heirs, who cannot wholly be excluded, are distinguished. Generally, anticipated renunciation of an inheritance, that is, of the inheritance of a living person, is invalid, and so is every pact concerning a future inheritance.

In the canonical forum, professed of simple vows acquire per se inheritances deferred to them, but professed of solemn vows do not per se acquire them; these acquire them either for a capable monastery or for the Holy See, unless, as it seems to us, before profession they disposed concerning these goods.

In the forum of conscience, heirs are not held beyond the powers of the inheritance; yet to him who has paid more either beyond the powers or after the sentence of the judge, occult compensation does not seem able to be conceded. Children born from a merely civil marriage seem per se able to stand by the civil law which holds them as legitimate.

III. Inheritance from Testament. 1. A testament is a juridical act, generally solemn, revocable until death, by which someone either institutes an heir and divides the patrimony, or simply declares what he wishes to be done after his death concerning the whole patrimony, or concerning its part, or concerning certain particular goods. For, according to the various law, the institution of an heir is essential, or a simple disposition of goods is permitted to be made by testament. Besides heirs, there are also legatees, at least under a particular title, and sometimes also under a universal title.

Certain laws, contrary to others, also admit a succession contract.

Everywhere an authentic testament, that is, one in which a competent public official, a notary, intervenes, public or mystic, secret, and a private testament, for which a writing made by the proper hand of the testator is required, are distinguished; and in extraordinary circumstances of a spreading plague, navigation, etc., a peculiar form has been foreseen.
Hereditary portions and legacies can be made subject to various clauses and conditions. It must be seen what the positive laws establish concerning their force and efficacy. Impossible conditions are often held as not written. It must be observed especially how far the testator can, not only for the case in which the one first instituted has failed by death or another cause or has not accepted, substitute another (vulgar substitution), but can also impose on the one first instituted the obligation of preserving the goods until death and then of leaving the same to another (fideicommissary substitution); or by secret mandate impose on the heir or legatee the burden of handing over to another, or of applying to a certain end, all the legacies or part of them (fiduciary substitution).
Full capacity of making a testament is most often denied to minors by birth; yet partial capacity, for example concerning half a part, or a testament of public form, is often customarily conceded earlier.
Execution of a testament can be committed to the person whom the testator has designated; but per se it is incumbent on the heir.
In the canonical forum, dispositions made for pious causes by a person who by natural and ecclesiastical law can freely establish concerning his goods are firm. But for validity in the external forum, canonical proof is required and suffices. Executors of a testament for pious causes must render to the Ordinary an account of the fulfilled office; for he is the executor of all pious wills (c. 1515).
In the forum of conscience: a) both commutative justice and piety and charity can obligate someone to make a testament. In making the testament itself, the norms of those virtues are to be observed. - b) A testament is called inofficious by which the testator has made legacies from his goods beyond the portion concerning which, according to the law, he was able to dispose. Those who make such a testament are not unjust; yet they can harm another virtue. Goods which someone has had from an inofficious donation or testament he can preserve; nevertheless, they are to be returned to the heir claiming them, even if the donation or legacy was made for pious causes. A sworn promise not to revoke a testament begets no obligation of justice, but at most one of religion. Yet, by force of c. 1513, an irrevocable disposition concerning one's inheritance which has been made for pious causes is valid. - c) The interpretation of a testament is to be made according to the reasonable will of the testator; but its execution must be made within the time defined by law and usages. A designation made of a pious cause is presumed to have been made demonstratively, not taxatively. - d) A civilly inform testament confers on the legatee a sufficient title why he can preserve the accepted legacy and need not warn the heir about the defect of the testament; but it does not suffice that the heir must execute profane dispositions, or that occult compensation be permitted to the legatee. Yet by a promise of executing the expressed will of the testator, even without legal solemnity, the heir is held by a title which must be prudently gathered from his mind and from the circumstances. But if a testament or legacy has been made for pious causes and in canonical form by a person canonically capable, it must be executed. For this it is enough that, by recognition of the testator's hand or by the testimony of two witnesses, one witness, even an excellent one, not sufficing, or by a declaration directly made to himself, the burdened person is truly certain concerning the will of the deceased. Wherefore even from fideicommissary substitution, a pious cause can suffer no detriment.

Prümmer, Manuale Theologiae Moralis

Dominic M. Prümmer, O.P. — 7 passages

Vol. II, Tr. XI, Sect. I, Q. IV, Ch. II, Art. I, § 2, 3. On Donation by Testament

n. 273.

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

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

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

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

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

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

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

³³ In German, Erbschaft.

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

³⁵ In German, Pflichtteil.

³⁶ In German, Noterben.

n. 274.

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

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

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

³⁸ De iure nat. et gent. l. 4, c. 3.

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

⁴⁰ Inst. iur. nat. l. 1, q. 720.

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

n. 275.

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

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

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

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

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

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

n. 276.

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

An ordinary and extraordinary testament. The first is that which is legally completed in ordinary circumstances. The latter is that which by privilege, and therefore is also called a privileged testament, is recognized as legal in extraordinary circumstances, e.g., a testament made by soldiers on a military expedition, or during an epidemic, or if a notary or judge cannot be summoned, etc.
A written, nuncupative, and holographic testament. A written testament is sometimes understood to be that which is written by a notary or judge according to the legal forms and is signed by the testator. A nuncupative testament is that which is established orally by the testator before witnesses.⁴⁴ A holographic testament is that which has been written entirely in the testator's own hand, signed with his name and surname, and marked with the addition of the place, year, month, and day. Several modern laws admit a holographic testament, e.g., German, French, Austrian, Swiss, Italian, Spanish law, etc.
A testament is called legal if all the norms required for the legal validity of the testament have been observed; otherwise it is an illegal or informal testament and is declared invalid by the civil judge.

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

n. 277.

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

If the mind of the testator is certain, every informal testament before the sentence of a judge can be regarded as valid. Thus the truer and more common opinion. The reason is that the faculty of making a testament arises primarily from natural law, while civil laws seem to decree the rescindability rather than the very nullity of such testaments. But if the civil law certainly and clearly determines that informal testaments are not only rescindable but also wholly null from the beginning, then assuredly this has force also for the forum of conscience. Billuart⁴⁵ writes excellently: "Laws invalidating less solemn [i.e., informal] testaments are not received by common usage to the extent that one who possesses through such a testament is despoiled before the sentence of a judge.... For whom will you find who voluntarily gives up that which he possesses by title of a less solemn testament or other contract, without force or fraud, while it is claimed by no one?" Hence one who received something from an informal testament can retain it and is not bound to warn the intestate heir concerning the defect of the testament. Nevertheless, it is not lawful to use any fraud to deceive the judge or the intestate heir, e.g., by supplying a signature or designation of the day or year which was omitted through forgetfulness. For by such fraud others are unjustly prevented from exercising their right of seeking rescission of the testament. But if someone by such fraud really prevents another from being able to use his right, he is bound to restitution, according to the more common and more probable opinion.⁴⁶
After the sentence of the judge, testaments of this kind are invalid even in conscience; indeed, anyone can licitly seek their rescission, provided, however, that there is question of testaments for profane causes. The reason is that these invalidating laws are founded on the presumption of common danger. But laws founded on the presumption of common danger bind in conscience. Hence Billuart⁴⁷ rightly adds: "Who is there who restores that which he obtained by the sentence of a judge against the disposition of a less solemn testament or other contract?"
If there is question of a testament for pious causes, i.e., for the good of the Church or the salvation of souls, it is disputed whether it is valid in conscience even if the sentence of a civil judge has invalidated it because of a defect. The more common opinion affirms this, both a) because testaments for pious causes are considered as sacred things which are not subject to civil laws, and b) because the Church has the right to acquire temporal goods independently of the civil government and civil laws. This opinion is confirmed from c. 11, X 3, 26 and from the response of the Sacred Penitentiary of January 10, 1901, declaring: "The practice of this Sacred Tribunal is that, generally, pious legacies are regarded as valid and obligatory in the forum of conscience. Heirs, however, are readily admitted to a composition with the Church or the pious cause to which the legacy was made."^47a A probable opinion denies this, and it is held especially by Cardinal D'Annibale,⁴⁸ Daelman,⁴⁹ Haine,⁵⁰ and Retzbach.^50a In practice Archbishop Kenrick of Baltimore⁵¹ prudently says: "For the rest, I would scarcely dare deny the sacraments to one unwilling to pay those things which lack the protection of civil law." This is approved by Tanquerey,⁵² and seems to conform to the Code of Canon Law, which establishes in canon 1513, § 2: "In last wills for the good of the Church, the solemnities of civil law are to be observed if this can be done; if they have been omitted, the heirs are to be admonished to fulfill the will of the testator."⁵³ Therefore, at least after the Code of ecclesiastical law obtained force, there no longer seems to be a strict obligation of justice to observe an informal testament for pious causes which has been declared invalid by civil law. Thus, at least, if the civil formalities prescribed in making a testament could have been observed and nevertheless were neglected. For greater security, however, it is preferable to seek from the Sacred Penitentiary a composition which, by its own testimony, is readily obtained.⁵⁴

⁴⁵ De contract. diss. 2, a. 5, § 3.

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

⁴⁷ L.c.

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

⁴⁸ Summula theol. mor. II, n. 339.

⁴⁹ De iust. P. 2, q. 2, obs. 8.

⁵⁰ De contract. q. 53.

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

⁵¹ Theol. mor. tr. 11, n. 37.

⁵² De iust. n. 700.

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

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

n. 278.

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

⁵⁵ Cf. German Civil Code § 1822, 2.

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

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

n. 279.

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

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

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

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

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

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

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

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

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

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

⁶⁴ Collect. de Prop. Fide n. 689.

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

Marc, Institutiones Morales

Clement Marc, C.SS.R. — 22 passages

Vol. I, Pt. II, Sect. II, Tr. VII, Diss. IV, Ch. II, ARTICLE III: On Hereditary Succession

We shall treat: 1. of hereditary succession in general; - 2. of legal succession; - 3. of testamentary succession.

Vol. I, Pt. II, Sect. II, Tr. VII, Diss. IV, Ch. II, Art. III, § 1. ON HEREDITARY SUCCESSION IN GENERAL

n. ¶1069.

DEFINITION. Hereditary succession is the acquisition of the right which the deceased had at the time of death, or in other words: it is the mode of acquiring ownership of the goods and rights of the deceased.

INHERITANCE, or the hereditary estate, is the whole right, or universality of goods, of the deceased, and comprises all his rights and burdens which are not merely personal. - Heir is called the one to whom belongs the right of entering upon the inheritance.

DIVISION. Hereditary succession is twofold. One is LEGAL, which is also called succession ab intestato; through this the goods and rights of the deceased are acquired from the disposition of law, without a testament. Another is TESTAMENTARY, and through this the goods and rights of the deceased are acquired from his last will, or legitimate testament. Of testamentary heirs, some are necessary: these cannot be excluded by the testator; others are voluntary, namely those who, from the free will of the testator, obtain hereditary right (III, 945).

In certain places, pactual succession is also admitted, through which the goods and rights of the deceased are acquired by a pact which he, while living, entered upon with the heir. To such succession what we are about to say concerning either legal or testamentary succession can easily be accommodated. Cf. German Code, 2274-2300; Austrian, 1217.

n. ¶1070.

PRINCIPLES. I. Hereditary succession is a mode of acquiring ownership which is rooted in Natural Law and is more distinctly defined in Positive Law. Thus the more common and more probable opinion. - The reason for the first is that domestic society cannot consist nor be perpetuated without the right of succession. For the perpetuity and vigor of families requires that children be able to perceive some benefit from the labors of their fathers. Now, when the right of succeeding is taken away, the principal stimulus which compels men to labor is taken away; every zeal for progressing in arts and in sciences is taken away; care for the family estate itself is taken away, since there is no one who would wish to treasure up for unknown persons. Similarly, when the right of making a testament is taken away, the father is reduced to the condition of a mere administrator, and his authority, so very necessary in his own family, decreases. - The reason for the second is that many things pertaining to successions are obscure or litigious, so that they can be defined by supreme authority alone. Likewise, there are many things which, on account of the common good, must be diverse for diverse circumstances of time, place, form of government, etc. But for the ordering of these, supreme power is required.

n. ¶1071.

II. Succession is opened at the very moment of death, in the place of the last domicile of the deceased; and possession of the goods is deferred immediately to the heir.⁰¹ Yet if the testator has appended a condition concerning the future, one must wait until it has been fulfilled, for example if a legacy has been made under this condition, that the legatee enter Religion.

In other places,⁰² the heir declaring the acceptance of the inheritance before a judge can immediately enter upon it. In others,⁰³ judicial immission is required. Let each one consult his own Law.

n. ¶1072.

III. When the inheritance has been opened, the heir is not held to accept it,⁰⁴ as the common axiom bears: NO ONE IS HEIR UNLESS HE WISHES. But acceptance, unless judicial immission is required, can also be made tacitly,⁰⁵ for example if the heir mixes himself in the affairs of the succession. But to decline the quality of heir, express renunciation is required, since this is never supposed.⁰⁶

So that the heir may be able freely to determine himself to acceptance or renunciation of the inheritance, a twofold benefit is conceded to him by law: 1. The RIGHT OF DELIBERATING for a certain time;⁰⁷ and when this has elapsed, from French, Italian, and Spanish Law, he can be compelled judicially by those whose interest it is, so that he may open his mind; but when no one contradicts, the time is prolonged to the years of the longest prescription.⁰⁸ From German Law, if the heir, after the six weeks conceded for deliberating, has not repudiated, he is considered to have accepted.⁰⁹ And here it must be noted that someone can renounce the quality of legitimate heir, and reserve to himself the quality of instituted heir; likewise, refuse a legacy offered under universal title and accept a legacy conceded under particular title. Renunciation effects that the quality renounced, and therefore the rights and burdens annexed to the same, are held as if they had never existed.¹⁰ - 2. The RIGHT OF INVENTORY, that is, the right of describing all the goods, credits and debts, of the deceased,¹¹ so that thus the state of the inheritance may be perfectly known. If among several heirs one demands an inventory, the others are held to consent;¹² indeed it must always be completed if the inheritance is deferred to an interdicted person, a minor, an absent person, or a moral body.¹³ Likewise, in Germany, it must be done if one of the creditors postulates this.¹⁴ Ordinarily nevertheless, in German law, there is no place for the use of inventory, since the heir can provide for himself in other ways. Cf. also what must be said n. 1084 ff.

n. ¶1073.

IV. The heir by entering upon the inheritance transfers into himself not only the benefits and rights of the deceased, but also his debts and real burdens. We say:

Benefits and rights, namely real rights; for personal rights, by which the deceased enjoyed, as usufruct, right of habitation, etc., are extinguished with him.
Debts and likewise real burdens, which each of the heirs is held to bear pro rata, unless the testator has determined otherwise.¹⁵ St. Alph., III, 961.

Let it be noted: 1. He who uses the benefit of inventory and duly and without fraud completes it obtains: a) that he is not held to pay debts beyond the powers of the inheritance, and that he can cede all the goods to creditors; b) that his own goods are not confused with the goods of the inheritance, and therefore that he can, like any other creditor, reclaim his credit and the expenses of his administration from the inheritance; c) that he has power to sell the immovables of the inheritance at public auction. The heir, or executor of the testament, is held at the end of his administration to render account to creditors and legatees; but all expenses, even for funerals and for appending seals, belong to the inheritance itself.¹⁶

He who neglects the inventory is considered by Civil Law to enter upon the inheritance purely and absolutely; and therefore he is held, even beyond the powers of the inheritance, to pay debts.¹⁷ But whether he is held to this also in conscience is controverted. The more common and more probable opinion denies it (H. Ap., II, 26; Marres, n. 271). Indeed grave authors add that the heir is not held to this even after the sentence of a judge, because such a sentence is founded on presumption of fact, namely of fraud on the part of the heir, as if he had omitted the inventory in bad faith, so that he might better hide everything. Cf. Lehmkuhl, I, n. 1398. Yet the creditor can use the favor of the law.

n. ¶1074.

V. If there are several heirs, partition of the inheritance is made: 1. amicably among those of age, present, and concordant, either through a private act or through an authentic act before a notary; - 2. judicially, if minors, interdicted persons, absent persons, etc., are present, or if litigation concerning the inheritance is moved.

On account of the excessive diversity of Laws it would be too long to explain each thing. We touch lightly on the more common things, referring to the Codes for fuller knowledge.¹⁸

The principal rule to be observed in partition is EQUALITY among the heirs. But equality would be injured in a threefold case: 1. in the case of anticipated acceptance, namely if one of the heirs had already accepted certain things from the deceased, by which his portion would increase beyond right; 2. in the case of lesion, namely if some object had not been estimated at a just price; 3. in the case of eviction, namely if one of the heirs were disturbed from the goods received in the partition. So that this threefold inequality may be excluded, against the first there is place for collation, against the second for rescission, against the third for assurance (Carriere, II, 535).

a) COLLATION is the act by which individual heirs refer to the sum of goods left to be divided those goods which they received from the deceased through donation between the living.

Hence, if a father has donated fields or a great sum of money to one or several children, for example by occasion of marriage, the other children, enriched by no similar gift, can demand that, in the division of the inheritance, account of donations of this kind be had (III, 954-960). Likewise it must be said if the father redeemed a son from military service, provided he did not do this for his own utility, that is, the father's, or for the family's utility.

Yet from collation are exempted: 1. Those things which the deceased gave by expressly exempting the heir from collation. 2. Ordinary expenses of education, that is, what was spent for food, clothing, instruction, books, academic degrees, benefice, nuptial costs, liberation from the penalty of prison or death, and customary little gifts. For these are considered less gifts than payment of a debt, since parents are held to supply these things to children. 3. Fruits of things to be referred which came to the donee before the death of the donor; for from the civil Code they are not owed except from the day of the opened succession. 4. An immovable good which perished by fortuitous chance without fault of the donee.¹⁹

b) RESCISSION is the act by which, on account of lesion of some party, a preceding partition is irritated, so that a new one may be instituted.²⁰ A simple passing over of some object in partition does not give place to rescission, but only to a new partition.

In the forum of conscience, every damage culpably inflicted must be repaired; but in the external forum, only that which is beyond the fourth part, if it is a question of mere lesion, force or deceit being excluded. But if force or deceit was present, any lesion of some moment suffices for obtaining rescission.

c) ASSURANCE is the obligation which lies upon all the heirs pro rata and in solidum, of making unharmed the coheir who has suffered eviction in the portion obtained. Yet it is required that the cause of eviction existed before the divided inheritance.²¹

Vol. I, Pt. II, Sect. II, Tr. VII, Diss. IV, Ch. II, Art. III, § 2. ON LEGAL SUCCESSION

n. ¶1075.

Things to be noted beforehand. 1. A legitimate heir can succeed either by his own right, that is, on account of the right which the personal degree of consanguinity confers, for example when a son succeeds a father; or by right of representation, that is, on account of the right which he obtains because, substituted in the place of another, he is held as taking the place of that person's person with respect to the succession to be occupied. Thus grandchildren are called in place of a deceased father to the succession of the grandfather.²²

Commonly, the right of representation is admitted only in favor of descendants, both from the deceased himself and from his brothers.²³ In AUSTRIA, however, it is extended to all heirs;²⁴ in GERMANY to the first three orders.²⁵

Succession is either by heads, when namely the inheritance is divided equally according to the number of persons, or by stocks, when the division is made according to the number of stocks, which then happens when someone comes by right of representation; or finally by lines, when the inheritance is divided into two parts, one of which is allotted to the blood relatives of the paternal line, the other to the blood relatives of the maternal line.²⁶

n. ¶1076.

The RULES of legal succession are chiefly the following:

I. When a valid testament is lacking, the law itself determines the mode of succession, with consideration both of the common good and of the presumed will of the deceased.²⁷

II. Commonly the right of succeeding belongs to all who are joined to the deceased by a bond of kinship, not only natural, but also civil, that is, through adoption.²⁸

III. Those joined are divided into various orders,²⁹ of which the prior excludes the later, so that heirs of a subsequent order do not come unless any heir of a preceding order is lacking.

IV. Among heirs of the same order, division is made according to special rules, which among various peoples are established variously, just as the constitution of the orders itself is various.³⁰

Here are the more common rules:

Descendants³¹ constitute the first order; if they are lacking in the first degree, their children come by right of representation. Parents³² come in the second order, in some places alone, in others together with the brothers of the deceased, or the children of these, by right of representation. - Ascendants in a more remote degree³³ come in some places in the same order with parents, elsewhere in a subsequent order.
Brothers³⁴ are privileged among all collaterals: they come in a special order, and those who descend from them enjoy the right of representation. Full brothers,³⁵ or bilaterals, have broader privileges than consanguine or uterine brothers, or unilaterals.
The surviving spouse³⁶ is regularly computed among legitimate heirs, not in a determined order, but with heirs of any order, for his or her own part. Thus, for example, in ENGLAND a wife receives the third part of the goods of her intestate husband if he leaves descendants; otherwise half.³⁷ - In GERMANY she receives in the first case only the fourth part, in the second half.³⁸ In AUSTRIA a spouse, if there are three or more children, succeeds with them into an equal part, but only with respect to usufruct. If, in defect of descendants, a legitimate heir is present, the spouse receives the fourth part in ownership; if none, he or she succeeds into the whole inheritance.³⁹
Natural⁴⁰ and spurious children do not enjoy the same rights as legitimate or legitimated children. With respect to the father, they are either restricted to food alone or obtain a greater or lesser portion according to the diversity of the order in which heirs come from legitimate kinship. With respect to the mother, natural children succeed as legitimate, and spurious children can probably retain what they accepted from the mother.
Everywhere the treasury⁴¹ comes after all, that is, when any other heir is lacking (cf. n. 884).
As incapable, he who at the time of the opened succession was not conceived, or was not born viable, is excluded from legitimate succession; similarly he who is civilly dead. Cf. n. 1042, 3. A child whose parents are related in an indispensable degree likewise, by common Law, is not admitted to succession as incapable. Pruner, Moraltheol., p. 634 and 638.
As unworthy, he who is proved guilty of an enormous offense against the deceased is excluded.⁴²

Vol. I, Pt. II, Sect. II, Tr. VII, Diss. IV, Ch. II, Art. III, § 3. ON TESTAMENTARY SUCCESSION

n. ¶1077.

Things to be noted beforehand. A disposition concerning goods of fortune can be made: by testament, by codicil, by legacy, or finally by substitution.

TESTAMENT, from modern Law,⁴³ is a disposition concerning those things which someone wills to be done concerning all his goods or concerning a certain part of them, for the time following his death.

Formal institution of an heir is not required, but any denomination is admitted, provided it is clearly expressed how the testator intends to dispose of his goods for the time following his death.

A CODICIL is a declaration of last will, less solemn, by which someone, without the direct institution of an heir, decrees something concerning his succession.

In modern Law, a codicil is commonly held in the likeness of a new testament, and in it the prescriptions of a holographic testament must be observed. Otherwise, however, in some provinces of Spain: in Catalonia, Aragon, and Vasconia.

A LEGACY is a disposition of last will by which the testator, from goods coming universally to the heir, leaves something to another, in words directed to him, to be furnished by the heir.

It is said: in words directed to him, for example I leave to Titus, etc.; for if the words were directed to the heir, in favor of Titus, it would be FIDEICOMMISSUM.

In FRENCH Law⁰¹ there is no distinction between an heir from testament and a legatee. In testamentary dispositions, three species are distinguished which have the same effects, whether they are made under the name of institution of heir or under the denomination of legacy, namely: 1. Universal legacy, by which the testator donates the universality of his goods, either with the burden of furnishing particular legacies or without this burden. 2. Legacy made under universal title, by which the testator donates an aliquot part of the goods, for example a half or third part, all movables or immovables, etc. 3. Legacy made under particular title, by which a determined part of the goods is donated, for example one thousand gold coins, a library, a statue, etc.

In ITALIAN,⁰² SPANISH,⁰³ and GERMAN Law,⁰⁴ the first and second species of disposition bestow the quality of heir, the third disposition the quality of legatee.

SUBSTITUTION is a disposition of last will by which another is subrogated into the place of an heir. It is vulgar or direct, and fideicommissary.

Vulgar substitution is a disposition by which, into the place of an heir who cannot or does not wish to accept the inheritance, another, indeed even a third and fourth, is substituted.

Fideicommissary substitution, or fideicommissum, is a last will by which the testator commits something to the faith of an heir or legatee, to be handed over to another. But the thing committed must either be handed over immediately, or be preserved by the fideicommissary heir for some time, generally until death, and afterwards be handed over to another (cf. 1068, 2).

In modern Law, fideicommissum is either altogether excluded⁰⁵ or is subject to peculiar laws.⁰⁶ But it must be recalled that fideicommissary substitution for pious causes has force in the forum of conscience; for from Canon Law, by which they are governed, they are held valid.

These things having been set forth, we must treat: 1. of the requisites for the value of a testament; 2. of the execution of a testament.

1. On the Requisites for the Value of a Testament

For the VALUE of a testament, some things are required on the part of the testator, others on the part of the heir, others on the part of the form.

n. ¶1078.

PRINCIPLES. I. On the part of the testator there are required: the power of making a testament and a free will of making a testament once had, and not retracted at the time of death.

We say: 1. The power of making a testament is required. - Now: a) From the law of nature, the faculty of making a testament concerning one's own things belongs to all who enjoy integrity of mind and labor under no vice of body by which they are impeded from declaring what they wish to be done concerning their things after death. Therefore by nature the incapable are infants and the perpetually insane, drunk persons, the furious, and all who actually lack the use of reason (III, 942). - b) From Positive Law, some who would be capable by Natural Law are legitimately prohibited; because it belongs to law to provide for the public good.

From modern Law, minors, interdicted persons, and the guilty of certain crimes enjoy no faculty or a restricted faculty. Wherefore the particular laws of various peoples must be consulted. Here we shall add only a few things about the faculty of minors, as being of more frequent use.

From French Law,⁰⁷ one who has not yet been born for sixteen years cannot make a testament. From the seventeenth year to the completed twenty-first year, a minor can, by testament, dispose of half of those goods about which, if he were of age, he would have power to dispose absolutely. From Italian Law,⁰⁸ one who has not yet completed eighteen years cannot make a testament. But when this year has been completed, he can be a testator, like all others. - From Austrian Law,⁰⁹ the impubes cannot make a testament. But those who have attained the years of puberty, but have not yet been born for eighteen years, can make a testament only orally and before a judge. But from the nineteenth year they enjoy full faculty. From Spanish Law, minors of either sex can make a testament after the completed fourteenth year.¹⁰ From German Law, minors not yet born for sixteen years cannot make a testament; from this age then up to majority they can make a testament orally before a notary.¹¹ From English Law, minors are altogether prohibited from making a testament (Crolly, II, 334).

A free will of making a testament is required, etc. The things which can be opposed to liberty were said above (n. 1045 ff.), where we treated fear and error.

n. ¶1079.

Points to be noted. a) Any testator can at will, either in part or in whole, revoke a testament made by himself. "For the will of the deceased is ambulatory up to the supreme end of life."¹² But revocation is made either expressly through a new testament or another authentic act, or tacitly through cession of the thing legated. A testament deleted or torn is held as revoked, unless it is established that the violation of the writing was made contrary to the will of the testator.¹³

b) Several testaments made by the same person can subsist together, insofar as namely the earlier does not contradict the later.¹⁴ Yet this is not admitted in Roman, Austrian,¹⁵ and Spanish Law,¹⁶ unless in the subsequent testament express mention is made of the preceding, and unless it is declared whether, either in part or in whole, one must stand by it.

c) A testament is revoked by the law itself if, after it has been made, a necessary heir appears who was altogether passed over.¹⁷ - Yet French Law and Austrian Law do not admit this disposition, but each Law reduces the testament to the disposable part. From German Law, the testament can be impugned by this necessary heir.¹⁸ From Spanish Law, the testament is revoked, but the legacies remain firm unless they are inofficious.¹⁹ In place of this disposition, in English Law this other disposition is in force, namely that a testament, whether of a man or a woman, is rescinded by subsequent marriage (Crolly, II, 363, 2).

n. ¶1080.

II. On the part of the heir, it is required that an incapable person not be instituted, and that a necessary heir not be injured.

We say: 1. That an incapable person not be instituted. Moreover, the capacity of the heir is not required for the time at which the testament is made, but for the time at which the testator dies. But since no natural incapacity is given, anyone who is not prohibited by Positive Law can be instituted as heir, even if he lacks the use of reason.

From modern Law,²⁰ commonly, those intervening in the making of the testament are prohibited from being instituted in the goods left through this testament. In Germany, besides those, no other is declared incapable. - From other Codes, rather commonly, those are prohibited to whom it is not conceded to accept donation between the living, namely: those not yet conceived, unless insofar as substitution is permitted, and those not born viable, as abortive fetuses (cf. n. 741); certain guilty persons, as a penalty of delict; illegitimate and spurious children, who can accept nothing beyond the portion determined by law from their own parents. In French²¹ and Spanish Law,²² a special inability is pronounced in a tutor with respect to the goods of the pupil; in a physician and a minister of worship, with respect to the goods of the deceased to whom, in the last illness, they furnished the work of art or ministry, with respect to confession.²³ Likewise,²⁴ a wife without the consent of her husband, and public institutions without the consent of the government, cannot accept an inheritance deferred to themselves. - From English Law,²⁵ subjects of a nation which actually moves war against the English nation are prohibited from being instituted; likewise, a cessor of goods whose cession is not approved.

That a necessary heir not be injured; that is, that he not be excluded, or be frustrated of his legitimate part. A necessary heir cannot be excluded unless on account of causes stated in the law. In this case, the one excluded has a right to food alone, if he does not have this from elsewhere; otherwise, to a determined part of the goods, which is called reservation or legitimate portion.

n. ¶1081.

a) Necessary heirs, from both Roman and modern Law, commonly are legitimate or legitimated descendants; and when these are lacking, ascendants, whether paternal or maternal, but only in the nearer degree.²⁶

From Italian, Spanish, and German Law, the surviving spouse is also computed among necessary heirs.²⁷ In English Law, necessary heirs are not given, and, unless it is a question of the transmission of lands, the testator enjoys full liberty.

b) Causes of exheredation are the most grave offenses of children against parents, for example if a son attempts to kill his parents, acts against them in criminal causes of death, perpetual exile, etc.

The same causes are not everywhere admitted; let each see them in his own Law.²⁸ In French and Italian Law, a son cannot be exheredated except on account of unworthiness declared by the sentence of a judge; by which law jurists advert that paternal authority has been not a little injured. But in German Law, for exheredation it suffices that at the time the testament was made the cause existed and is expressed in the testament.²⁹

c) The legitimate part owed to necessary heirs is that portion of goods which supplies the faculty of living honorably according to one's proper state. The matter is more accurately defined in various Laws.

From French Law:³⁰ the portion reserved to legitimate children, if there is one, is half of the goods; if there are two, two-thirds; if three or more, three-fourths. - To ascendants in defect of descendants, if they are present in each line, half; if in one line only, a fourth. To recognized illegitimate children is owed the part which is allotted to them by law in succession ab intestato.

From Italian Law:³¹ to legitimate descendants is owed half the part, whatever be their number. To illegitimate children is owed the part which the law assigns to them in succession ab intestato. Ascendants, without distinction of lines, have right to the third part. The surviving spouse, if he or she comes with legitimate children, is computed in their number and obtains his or her portion not indeed in ownership, but only in usufruct; if he or she comes with others, he or she obtains in the same mode, that is, in usufruct, a third part.

From Austrian Law:³² half the part is owed to descendants, and a third part to ascendants. Natural children have a definite reservation in the goods of the mother alone. To the surviving spouse, although he or she is not a necessary heir, if poor, suitable support is owed, as long as he or she has not flown to second nuptials.

From German Law:³³ heirs have right to half of the portion assigned to them in legal succession, whatever be their number.

From Spanish Law:³⁴ parents are conceded power to dispose at will concerning a third part of their goods; a third part is owed to descendants; the remaining part is owed to the family, yet in such a way that, with the right of the wife preserved, they can assign it at will to one or more children, the others being set aside. To ascendants, if descendants are lacking, half the part from the goods of children is owed.

n. ¶1082.

III. On the part of form, nothing determined is had by Natural Law; but by Positive Law various formulas are prescribed according to the diversity of testaments.

By reason of form, a testament is: 1. Common or privileged, according as the ordinary form is observed, or by privilege one is dispensed from it. Privileged are testaments of soldiers waging war, of those laboring under plague, of those sailing, etc.³⁵ But when the circumstance which was the cause of the privilege ceases, a certain time is conceded for making a common testament, and the privileged one falls. 2. Solemn or private, according as it is made with determined solemnities, for example with a notary or judge and witnesses, or without them. But a solemn one is public, or mystic or closed.

We shall say nothing about the form of a solemn testament. For in modern Law, commonly, a public minister is required, who intervenes in the name of society; but he will have care for the dispositions of law to be observed.

A private form, and indeed the simplest, is had by a holographic testament: namely that which is written entirely by the hand of the testator, with indication of year, month, day, in Germany also place,³⁶ and with the apposition of the name, in the form of a chirograph. As these three conditions are required for its validity, so they also suffice. - You will note besides: 1. the addition of day, month, and year can be made by arithmetical notes, and placed in any part of the testament; yet it is safer to write these in whole letters at the end of the testament; 2. the inscription of the place where the testament is made is considered by no means necessary, except in Germany; for the testament has force wherever it has been drawn up; 3. any paper, even if not sealed, suffices.

In FRENCH, ITALIAN, SPANISH, GERMAN, and AUSTRIAN Law, a holographic testament is admitted.³⁷ And in AUSTRIAN Law, an allographic testament, written by another, and a nuncupative testament are also admitted; see their form in the Code itself.³⁸ - In ENGLISH Law it is required that the name of the testator be appended to the written testament, or be recognized as duly appended, in the presence of two witnesses, who themselves also must subscribe their names (Crolly, n. 338).

n. ¶1083.

- Questions. The various questions which can be posed regard either the licit and illicit in making testaments, or informal testaments. Hence there are questions of diverse genus.

QUAER. 1. Whether parents sin by injuring the legitimate of children?

Resp. Affirmatively, of itself; and indeed against legal justice alone.

For it belongs to civil society to determine the order of successions, according to the mode which the common good requires. - They do not sin more probably against commutative justice, because they dispose concerning their own thing. For a necessary heir acquires strict right in the goods only after the death of the testator. St. Thomas, 2. 2, q. 57, a. 4; Genicot, I, n. 677.

We said of itself; because: 1. Parents do not seem to sin in any way who, for a just cause, partially injure the legitimate of children in some particular case. For the end of the law ceases when a disposition in itself inofficious, by reason of circumstances, profits the family and is not opposed to the common good: for example, if a father should allot certain remuneratory goods to an upright son, whence less would come to a dissipating son; - or even if he should allot more to one of his children, so that he could more safely continue the paternal commerce, etc.

And this ought to be admitted the more easily, the more modern laws restrict paternal authority. - 2. Parents also do not seem to sin who would spend their goods on pious works, even if they injure the legitimate of children, provided these do not lack honorable support (III, 740, 750). This opinion was already held probably by the ancient Doctors (cf. Genicot, I, n. 677, note; Lehmkuhl, I, n. 1392).

From these things conclude: a) After the fact, children who have received a greater part than owed are not to be troubled when, from the adjuncts of things, it can be conjectured that the parents favored them for a just cause. This has force especially if they are in good faith, and it can deservedly be feared lest they refuse to yield anything.

b) Heirs whose legitimate part has been injured use their own right if before tribunals they attack dispositions harmful to themselves, even if it is a question of dispositions for pious causes. Cf. Genicot, l. c.

c) Parents can secretly make legacies to illegitimate children, even those not legally recognized, although these have no right to them, with the rights of legitimate children nevertheless preserved and scandal excluded (Genicot, I, n. 679).

d) The following question is more difficult: in the case in which a testator, while the first wife was living, entered upon a new civil marriage, can the possible children born from this adulterine concubinage accept the legitimate part assigned to them as also to legitimate children; - or, if nothing was assigned, claim the legitimate part?

Resp. To the first, affirmatively, because according to the path of Positive Law this part has been left to them; nor does Natural Law stand in the way, because the testator, disposing all things in this way, did not injure the strict right of the legitimate children, as was said above.

To the second, negatively, namely if the last will of the deceased is clearly expressed in the testament. Reason: the children born from the first marriage, in the case, immediately after the death of the testator obtained strict ownership of the part assigned to them. Moreover, it is against piety to impugn the expressed will of the father. Civil law indeed receives the second marriage into an equal condition of right with the first, but it cannot in the case favor the illegitimate children, since it is evidently inequitable.

We said: if it is expressed in the testament, etc.; for in doubt concerning the will of the testator, impugnation could licitly be made. Similarly, if the deceased did not make a testament; for then he is considered to have wished that all things be distributed according to the norm of Positive Law. Cf. Genicot, II, 562, IV, against Lehmkuhl (I, n. 1396), who expresses himself rather doubtfully.

QUAER. 2. To what is the testator held toward blood relatives who are not necessary?

Resp. 1. Toward brothers and sisters, and likewise toward the spouse, if he or she is not a necessary heir, the testator is held under grave sin to leave by legacy that which is necessary for relieving their grave want. Yet this obligation presses from charity alone.

Toward remote blood relatives, even if they are constituted in grave necessity, and toward brothers, sisters, or spouse who are not situated in grave necessity, the testator is held only under light sin (III, 946; H. Ap., X, 237; l. El. qq. ref., n. 39). Cf. what we said n. 702.

QUAER. 3. Whether a testament or legacy lacking legal forms has force in conscience?

Resp. 1. If it is a question of profane causes, for example of legacies directed to blood relatives or friends, the question must be solved according to the principles explained above (n. 1054).

Hence for practice: a) The heir ab intestato can, with safe conscience, use the benefit of the law by seeking the rescission of an informal testament; and similarly a legatee from an informal testament can licitly claim the goods legated to himself, if the heir does not wish to use his right, or even if he is ignorant of the vices of the testament. b) Before the sentence of a judge, neither is the heir held from justice to pay merely liberal and profane legacies, unless by force or fraud he impeded the validity of the testament, or unless with an oath he promised to pay them; nor is the legatee held to restore goods which he has already accepted or which he already possessed by the right itself. But after the sentence of a judge, they cannot either accept the thing or retain the thing accepted (III, 927).

"With respect to pious dispositions, it is certain that, if the will of the testator is established to the heir, whether by words, or by nod, or by writing, the heir is held in conscience either to yield the inheritance to the pious place, or to pay the legacies" (III, 923).

A PIOUS CAUSE is called every work which of itself, from the end of the work, or from the intention of the faithful, is ordered to a supernatural end. That supernatural end can regard not only the worship of God or the glory of the Saints, but also the spiritual or temporal utility of one's neighbor. In this last case nevertheless, there must be present the motive of exercising charity, as befits a Christian, and a merely philanthropic motive does not suffice.

Therefore pious causes are: the sacrifice of Mass, churches, monasteries, confraternities, works of mercy, schools, orphanages, even secularized ones, associations of young men for promoting in them love of the faith and good morals. Cf. Aichner, § 143. - Pious causes are not theaters, societies instituted solely for performing gymnastic exercises; indeed hospitals, orphanages, schools which evidently were founded from a merely philanthropic end are not pious causes, whence also their administration was totally withdrawn from the ministers of the Church.

In doubt concerning the nature of the work, one must attend to the end of the one operating.

Pious causes are subject exclusively to ecclesiastical laws. This is clearly demonstrated by positive monuments; nor is D'Annibale, II, n. 339, to be heard, who almost alone among the moderns teaches the contrary opinion. Cf. Genicot, I, n. 675. - The opinion is confirmed by the Rescript of the Sacred Penitentiary, 19 Jan. 1901 (A. S. S., 34, p. 384), where it is said: "The practice of this Sacred Tribunal is ... that generally pious legacies be held as valid and obligatory in the forum of conscience. Yet heirs are easily admitted to composition with the Church or the pious cause to which the legacy was made." Cf. also the Response of the same Congregation, 23 July 1844 (ap. Gury, Casus, I, n. 861) and 23 June 1884 (ap. Genicot, l. c.).

Yet it must be noted: a) If the will of the testator is not established through his undoubted writing, or through words heard from him, or in another similar way, the heir is not held to believe one witness alone, although most approved, for example the pastor or confessor; because there must be at least two witnesses, from Canon Law itself and by reason of the common good, so that frauds may be avoided (III, 924). - b) If someone, as frequently happens in places where civil law is opposed to Canon Law, is completely ignorant of his obligation, and it is feared that he will not obey the admonition of the confessor, he will have to be left in his good faith, as we have already often warned. c) If the matter is entangled with difficulties, let it be referred to the judgment of the Bishop, to whom, from the Council of Trent (Sess. 22, c. 8, de Ref.), the care of the execution of pious dispositions has been entrusted, and who, for this end, has also been instructed by the Holy See with peculiar faculties.

Corollary. An heir ab intestato who PROMISED the deceased that he would certainly fulfill his last wills is held to this, sometimes from justice, sometimes from fidelity alone.

From justice, if the deceased abstained from making a testament on account of this promise. For if, in making the promise, the heir intended not to fulfill it, he committed deceit, and thus unjustly impeded a third party from obtaining a good, and therefore he is held to reparation. But if he promised sincerely, he would commit fault by changing his purpose; because he would infer true damage on him who otherwise would have been instituted legatee (Crolly, II, 394).
From fidelity alone, if the deceased did not abstain from making a testament on account of this promise. The last manifestation of will then is a testament lacking legal form, and the things noted in the preceding question have force. But there will be an obligation under grave sin from religion if the promise was firmed by oath (cf. n. 1059, Quaer. 2 and 1062).

Vol. I, TREATISE ON CONTRACTS, SECOND PART: ON CONTRACTS …, Ch. II, ARTICLE III: ON HEREDITARY SUCCESSION · Vol. I, TREATISE ON CONTRACTS, SECOND PART: ON CONTRACTS …, Ch. II, Art. III, § I, Both LEGAL and TESTAMENTARY · Vol. I, TREATISE ON CONTRACTS, SECOND PART: ON CONTRACTS …, Ch. II, Art. III, § II. On Legal Hereditary Succession, or on Those Dispositions of Law Which Are Proper to LEGAL Heirs · Vol. I, TREATISE ON CONTRACTS, SECOND PART: ON CONTRACTS …, Ch. II, Art. III, § III. On Testamentary Succession, or on Those Dispositions of Law Which Pertain to INSTITUTED HEIRS and to LEGATEES

2. On the Execution of a Testament

n. ¶1084.

I. The execution of a testament is committed of itself to the heir, unless the testator or judge, or the heirs themselves, have constituted an executor. This office belongs to him alone who was designated, and therefore does not pass to his heirs.

But so that this office can be undertaken, it is required that the one undertaking it possess the faculty of obligating himself. Hence minors cannot undertake it, even if the license of the tutor accedes; nor a wife, unless the husband consents, which also has force for a wife legitimately separated from her husband. As concerns religious, they can be executors, provided the consent of the Superior accedes and the rule does not stand in the way (III, 936).

n. ¶1085.

- II. The executor must be held as the mandatary of the deceased, and is held to fulfill gratis the office which he has accepted, otherwise in Germany,⁰² while nevertheless his expenses are compensated.

But he must watch: 1. that judicial seals be appended, if among the heirs there are minors, interdicted persons, or absent persons; - 2. that an inventory be made, with the nearest heir present or duly summoned; - 3. that movable goods be sold, if money is lacking for payment of legacies; - 4. that he urge the execution of the testament, especially with respect to pious legacies, which must be paid immediately or at least within six months if a time was not determined by the testator (III, 941).

n. ¶1086.

III. In the execution of a testament, the expressed will of the deceased, where it is had, must be religiously observed; or the will deservedly presumed, where the expressed will is lacking.

Hence: 1. If the words admit a manifold sense, let the mind of the testator be attended to, according to the nature and object of his last will. 2. If any added condition appears either unintelligible, or impossible, or contrary to good morals or laws, let it be held as not appended. 3. If some disposition of the testator rests on a final motive either false or contrary to laws or good morals, let it be held as null (cf. n. 1057, toward the end).

n. ¶1087.

- Questions. QUAER. 1. Who has power to INTERPRET the will of the testator concerning legacies to be made from a testament?

Resp. Any prudent person can make this interpretation, with due account had of the circumstances.

A legacy left to virgins is owed even to a corrupted one, if her corruption is occult. 2. A legacy left to virgins originating from a place is not to be given to virgins born there by chance. 3. Legacies left for dowering determined girls so that they may marry can be given to the same ones already married or about to enter or having entered Religion; otherwise, if they are indeterminate. For in the former case the testator is considered to have wished to benefit such persons; in the latter, to free poor girls from the danger of seduction. 4. Things left to the poor, under which name pious causes also are understood, must be distributed according to the order of charity, as was said n. 484. 5. Things left to poor orphans can be given to wretched persons having useless parents, where orphans properly so called are lacking; otherwise in the concurrence of these (III, 930, 938). 6. Things left to a Religious Order can be given also to a Congregation with simple and perpetual vows.

QUAER. 2. Who can CHANGE legacies?

Resp. Civil authority, for a just cause, can commute a profane legacy into another profane legacy; a fortiori, into a pious one. But only the Supreme Pontiff, when a just cause intervenes, will be able to commute a pious legacy into another pious use.

But Bishops, as Laymann and others probably say, can only then interpret the will of the testator and apply legacies to another pious use, when such a cause supervenes which, if it had been known, certainly would have induced the testator to dispose otherwise concerning his things (III, 931; Lucidi, Visit. sacr. lim., c. VII, a. 4).

QUAER. 3. When does the lapse of a testament OBTAIN?

Resp. A testament becomes lapsed when, although valid from the beginning, it cannot attain execution on account of certain circumstances.⁰³

This happens if the thing legated perishes while the testator is living, or if an heir or legatee is lacking. But a legatee is lacking if he dies before the testator, or before the condition has been fulfilled on which the execution of the testament depends; likewise, if the legatee does not wish or is unable to accept the legacy. If the legacy was left to several conjointly, then when one is lacking, his part accrues to the others.

Konings, Theologia Moralis

Anthony Konings, C.SS.R. — 31 passages

Vol. I, TREATISE ON CONTRACTS, SECOND PART: ON CONTRACTS …, Ch. II, ARTICLE III: ON HEREDITARY SUCCESSION

Note. - Here it would have been necessary to treat only that hereditary succession which exists from TESTAMENT, since this alone can be referred to donation; but concerning that which is called LEGAL or FROM INTESTACY, it would have been necessary to treat in the Treatise ON RIGHT AND JUSTICE in that place where discourse is had concerning the various modes of acquiring dominion. But, since one is intimately connected with the other, and many things are common to each, it has pleased us to treat each in this place.

PRELIMINARY MATTERS.

A. On the Notion and Division of Hereditary Succession.

n. ¶895.

Notion. - Hereditary succession (hereditary succession) is a mode of acquiring, either from the disposition of law, or from the last will of the deceased (legitimate testament), the dominion of the goods and rights which the deceased had at the time of death. - There is no inheritance of a living man.

The very universality of goods and rights which are acquired through hereditary succession is called inheritance; the part of individual heirs: portion.

Division. - From the adduced description of hereditary succession there spontaneously flows its very well-known division into legal and testamentary.

Legal succession, which is also called succession from intestacy (succession by operation of law, or ab intestato), is that by which the goods and rights of the deceased are acquired from the disposition of law, without the cause of testament.

Testamentary succession (by testament or will) is that by which the goods and rights of the deceased are acquired from his last will, or legitimate testament.

B. On the Notion and Division of Heirs.

n. ¶896.

Notion. - By the name of heirs (heirs), in our law, come those who from law or testament succeed to the goods and rights of the deceased by universal title, i.e. who from law or testament acquire either the whole inheritance or at least some quota of the inheritance, say a half, a third part. But those who from testament succeed to the goods and rights of the deceased by particular title, i.e. who from testament acquire only some determined things, for example, a house, a field, all movable goods, all immovable goods, the usufruct of all or certain goods; these are not called heirs, but legatees (legatees). -

n. ¶897.

Division. - Heirs are usually distinguished:

a) Into legal heirs or heirs from intestacy (heirs by operation of law, or at law, or right heirs, or lawful heirs or by descent or ab intestato, or simply heirs), who are called to the inheritance from law; and testamentary or instituted heirs (heirs by will), who are called to the inheritance from the last will of the deceased himself, declared through a legitimate testament.

b) Into necessary heirs, who cannot be passed over by the testator as to a certain part of the goods, determined by Law (which they call the legitimate portion or reserved portion); and voluntary heirs, who can be passed over or instituted by the testator at pleasure.

These things having been premised, now we shall strive to present summarily those things which ought not to be unknown to Moral Theologians concerning hereditary succession, by discussing:

In the first place, hereditary succession in general, i.e. those dispositions of Law which are common to every succession, whether legal or testamentary; yet it must always be carefully distinguished between heir and legatee; for the things which will be said concerning heirs cannot of themselves be applied to legatees.

In the second place, legal succession, i.e. those dispositions of Law which are proper to legal heirs.

In the third place, testamentary succession, i.e. those dispositions of Law which pertain to instituted heirs and to legatees.

Vol. I, TREATISE ON CONTRACTS, SECOND PART: ON CONTRACTS …, Ch. II, Art. III, § I, Both LEGAL and TESTAMENTARY

n. ¶898.

What is generally required so that someone can be an heir. - It is required 1° That he be at least conceived at that moment at which he dies whose heir or legatee he is. Yet by substitution even one not conceived can be called to an inheritance or legacy. Thus, for example, a disposition is valid by which someone leaves his goods or some good of his to someone with the burden that someone from the descendants of this one inherit them.

2° That he not be incapable by law.

n. ¶899.

Rights of heirs. - 1° They acquire dominion of all goods, rights, and actions of the deceased by the very moment in which the latter dies, and without its being necessary that they declare that they wish to acquire that dominion, and even if they are ignorant that they are heirs. Yet this acquisition of dominion is not to be confounded a) with actual possession of the same, which is procured through the executor or administrator of the inheritance; b) with acceptance of the inheritance; for it can be repudiated.

2° They have the right to seek the inheritance (i.e. to recover the goods and rights of the deceased) from all who detain it or part of it.

n. ¶900.

On the adition and repudiation of inheritance. - According to the axiom of law: "No one is an heir unless he wills it." Therefore no one is bound to enter upon or accept an inheritance. Among us, with common law considered,¹ no act is required by which someone repudiates an inheritance; it suffices that he neither seek nor enter upon the inheritance within the time established for the prescription of his right; and when this time has elapsed he falls from his right, even if he did not know that he was an heir.²

n. ¶901.

What pertains to the inheritance. - To the inheritance pertain:

As burdens: a) debts and real burdens of the deceased; expenses of burial and funerals; and also those which are joined with the execution of the testament or administration of the inheritance. b) Legacies.
As goods: a) goods and rights of the deceased; b) all things which are subjected to collation. But collation is the act by which one of the heirs brings back to the sum of goods which the testator left to be divided among the heirs those goods which he received from the deceased by donation inter vivos, so that they may be divided equally among all. "If therefore a father handed over to a daughter, on the occasion of marriage, fields, or houses, or a great abundance of money," or a dowry sufficiently notable so that she might enter a monastery; "or if he conferred gifts of this kind on a son, in order to provide for him; the children who remained with him, increased by no gift, can require that account be had of them in dividing the inheritance. Those who received those things from the father will indeed be able, by renouncing every right, to abstain from entering upon the division; but if they wish to claim anything beyond for themselves, only that will be owed which must be added so that the portion of all may be equal."¹

Yet from collation are exempted a) those things which the deceased gave, by expressly exempting the heir from collation, or by title of special right (by benefit); b) expenses of nourishment, education, nuptials (wedding), learning an art or science, and similar things, unless the contrary intention of the deceased is clearly established; c) manual donations, unless they are of greater moment; d) fruits of things to be brought back, which the donee perceived before the death of the testator up to the day on which the succession was opened; e) money used for redeeming a son from military service; for since this has place among us only in time of war, and it would be hard for a son to be exposed to the dangers of war before the other co-heirs, as if at his own expense, the father must be presumed, unless the contrary is clearly established, to have exempted this money from collation; f) those things which the son dishonorably spent from paternal goods, for example in games, drinking-bouts, etc., if he did not spend more than the father would have been content that he expend on honorable recreations. L. IV. 954-959.

For Louisiana see, if you wish, Civil Code of Louisiana.²

n. ¶902.

Original force of hereditary succession. - Much agitated among Authors is the question concerning the original force of hereditary succession; namely whether succession, whether from intestacy or from testament, repeats its force of transferring dominion originally from natural right; or rather from positive human law, so that, this law being excluded, the goods and rights of the deceased would of themselves become things of no one. - It suffices for us here to explain in a few words what seems more probably to be held about this matter.

A) As to succession from intestacy. - With attention both to the nature of property, and to the character of parental society and family, and also to the exigency of public order, we judge that it must altogether be resolved that this succession borrows its original force from the law of nature, especially indeed where it is a question of succession by which the nearest blood-relatives succeed to deceased blood-relatives, say, by which children succeed to deceased parents.¹ - Yet, since the law of nature directs succession from intestacy only in general and as it were indefinitely, and consequently leaves many things in this matter to be more specified and determined by positive law; hence you will also rightly say: succession from intestacy repeats its force of transferring dominion principally from the law of nature, and secondarily from positive human law, as that by which the natural force of succession seems to have become better ordered and much more valid.

B) As to succession from testament. - We defend with Grotius,² whose opinion is called by many the more common and more probable, that any man, not legitimately impeded, can by natural right validly dispose of his goods through testament, and consequently also that testamentary succession borrows its force of transferring dominion principally from the law of nature, and not from human law alone; although nevertheless it belongs again to the human legislator in this matter to order those things which are necessary so that affairs may be carried out in the due mode and order. "Although," says Grotius in the place cited, "a testament, like other acts, can receive a certain form from civil right; yet its very substance is cognate to dominion, and, this being given, is of natural right. For I can alienate my thing not only in a pure manner, but also under a condition; and not only irrevocably, but also revocably, and also with possession and the fullest right of enjoying retained meanwhile. But an alienation for the event of death, revocable before it, with the right of possessing and enjoying retained meanwhile, is a testament.... By this right Abraham, if he had died without children, would have left his things to Eliezer, as the place of Genesis indicates.³ But that in some places it is not conceded to foreigners to make a testament is not from the law of nations; but from the proper law of that state, and, unless I am deceived, coming from that age in which foreigners were held almost as enemies: and thus among the more civilized peoples it has deservedly fallen out of use."

n. ¶903.

- Indeed it is necessary to confess that the proposed opinion concerning the natural force of testamentary disposition is not admitted by some Theologians and Jurists, who on the contrary contend that a testament, or last will, does not have the force and efficacy of transferring dominion from natural law, but only from positive human law; and they strive to prove their assertion by the following argument, sufficiently celebrated today:

For the translation of dominion, by natural right, it is required that the owner will and be able to transfer his thing into another;

But a testament, from its character, excludes this requisite, since the testator does not will to transfer his thing into another before death, and after death he is not able;

Therefore a testament, by natural right, is inept for the translation of dominion; and therefore if any force is to be ascribed to a testament, it must be repeated from positive law alone.

But in truth these Authors seem to effect nothing by aphorisms of this kind, since they do not at all attend to the nature of donation under a suspensive condition, concerning which Grotius speaks in the place cited; for when this is attended to, it would rather be necessary to argue thus in favor of our opinion:

For the translation of dominion, by natural right, it is required that the owner be able and willing to transfer his thing into another, either absolutely and actually, or under a condition;

But a testament, from its character, includes this requisite, since the testator at that very moment at which he makes the testament is able to transfer his thing into another and in fact also wills it, namely: under the suspensive condition of death.

Therefore a testament by natural right is not inept for the translation of dominion.

But the aforesaid Authors insist by producing this other argument:

At least, for the translation of dominion, by natural right, it is required that the will of the one accepting be united with the will of the one transferring;

But, in the case of testament, the will of the one accepting is not united with the will of the one transferring, who, at the time of acceptance, is dead;

Therefore, in the case of testament, by natural right there is no translation of dominion.

But this argumentation also seems very weak, as not distinguishing between actual and virtual union of wills. For suppose that in the case of testament an actual union of wills is not given; certainly, nevertheless, a virtual union is given, since the will of the one transferring, in the testament itself, according to common estimation (which I think is founded in faith in the immortality of the soul) is judged to persevere at least virtually. But it can by no means be proved that such a virtual union, in the case of testament, does not suffice by natural right; indeed, that this union in reality suffices is sufficiently established from the fact, most worthy of note here, that the usage of Nations and the very natural inclination of all men have always judged the last will of the deceased to be sacred and to be pursued with special honor.

Moreover, whatever may be the value of the opinion impugned by us, this still deserves to be noted at least for history:

All supporters of Communism have eagerly embraced the doctrine of deriving the force of succession from human law alone, as favoring their system more. For once this doctrine has been admitted, they seem to demand for themselves by so much greater right that the Civil Power at last take away from succession the force and efficacy which it previously attributed to it, and thus finally at some point recognize and promote the desired community of all goods. But what, I ask, would be the voice of all Theologians, as many as there are, if the civil power were to satisfy this wish of the Communists? Would not all with one mouth declare that an indulgence of this kind of the civil power is utterly to be condemned and injurious to citizens? But by what reason could that indulgence be called injurious, unless it is admitted that the force of succession is principally derived from the law of nature!

Thus acutely the distinguished Van Egeren, from whose illustrious Notes I have copied almost word for word these and many other things concerning Donations, Hereditary Succession, and Buying-Selling.

Vol. I, TREATISE ON CONTRACTS, SECOND PART: ON CONTRACTS …, Ch. II, Art. III, § II. On Legal Hereditary Succession, or on Those Dispositions of Law Which Are Proper to LEGAL Heirs

n. ¶904.

- Who are called to the inheritance FROM INTESTACY, and what part of the inheritance individual heirs obtain. "In the United States... each State has established a law of descent for itself.... There is no entire, though there is an essential, uniformity on this subject.... It will be sufficient to state those leading principles... which are of the most general application."¹

The debts of the intestate having been paid, and the dowry of the wife (see n. 605), if she survives, subtracted, the rest of the inheritance passes to the heirs according to the following rules.

n. ¶905.

- I. Rule. The inheritance "shall descend to" the "lawful descendants in the direct line of lineal descent; and if there be but one person, then to him or her alone, and if more than one person, and all of equal degree of consanguinity to the ancestor, then the inheritance shall descend to the several persons as tenants in equal parts, however remote from the intestate the common degree of consanguinity may be."²

II. Rule. "If a person... leaves lawful issue of different degrees of consanguinity, the inheritance shall descend to the children and grandchildren of the ancestor, if any be living, and to the issue of such children or grandchildren as shall be dead, and so on to the remotest degree as tenants in common. But such grandchildren and their descendants shall inherit only such share as their parents respectively would have inherited if living."³

III. Rule. "If the owner of lands dies without lawful descendants, leaving parents, the inheritance shall ascend to them, either first to the father and next to the mother, or jointly, under certain qualifications" for which you may consult Kent.⁴

IV. Rule. "If the intestate dies without issue or parents, the estate goes to his brothers and sisters, and their representatives. If there be several such relatives, and all of equal degree of consanguinity to the intestate, the inheritance descends to them in equal parts, however remote from the intestate the common degree of consanguinity may be. If they all be brothers and sisters, or nephews and nieces, they inherit equally; but, if some be dead leaving issue, and others living, then those who are living take the share they would have taken if all had been living, and the descendants of those who are dead inherit only the share which their parents would have received if living. The rule applies to other direct lineal descendants of brothers and sisters, and the taking per capita when they stand in equal degree, and taking per stirpes when they stand in different degrees of consanguinity to the common ancestor, prevails as to collaterals, to the remotest degree, equally as in the descent to lineal heirs."¹

V. Rule. "In default of lineal descendants and parents, and brothers and sisters, and their descendants, the inheritance ascends to the grandparents of the intestate, or to the survivor of them."²

VI. Rule. "In default of lineal descendants, and parents, and brothers and sisters, and their descendants, and grandparents, the inheritance goes to the brothers and sisters equally, of both the parents of the intestate, and their descendants. If all stand in equal degree of consanguinity to the intestate, they take per capita; and if in unequal degrees, they take per stirpes.... The rule is controlled in... some... States by the following rule."³

VII. Rule. "If the inheritance came to the intestate on the part of his father, then the brothers and sisters of the father, and their descendants, shall have preference, and, in default of them, the estate shall descend to the brothers and sisters of the mother, and their descendants. But if the inheritance came to the intestate on the part of his mother, then her brothers and sisters, and their descendants, have the preference; and, in default of them, the brothers and sisters on the father's side, and their descendants, take."⁴

VIII. Rule. "On failure of heirs, under the preceding rules, the inheritance descends to the remaining next of kin to the intestate."⁵

IX. Rule. "If there be no remaining next of kin, or if none lay claim to it within the time required in every State for the prescription of inheritances, the State is heir."

X. Rule. "The next of kin is" generally "determined by the rule of the Civil," and not of the Canon "law."¹ See Treatise on Marriage, concerning the impediment of consanguinity, n. 1582.

XI. Rule. "In a majority of the States the descent of real and personal property is to the same persons and in the same proportions."²

n. ¶906.

- Who are excluded from the inheritance FROM INTESTACY.

1° He who, at the time when the intestate lays down life, has not yet been conceived; or (which nevertheless is not valid in all States), although he was conceived at that time, afterward is not born alive.

2° Aliens as to immovables are altogether excluded in certain States; in others, as citizens, they can be heirs; finally, in others, they obtain the rights of heirs if by oath they have proved an intention of always remaining in the Federated States, or inhabit them at that moment at which the intestate dies.

3° Illegitimates on the part of the father, but not on the part of the mother, nor toward one another.

But who are to be held among us as illegitimate is generally to be defined not from Common Law, but from the laws of individual States. See Kent.³

n. ¶907.

Questions. - Query 1° Are parents bound in conscience to recognize, or, on the occasion of nuptials, to legitimate their illegitimate offspring, so that thus they procure for the same the favors conceded by civil law?

Resp. Although parents can remove the injury caused to their illegitimate offspring by extra-matrimonial procreation only by recognition and legitimation of the same, and therefore, if a grave impediment does not stand in the way, they are to be carefully induced to this recognition and legitimation; nevertheless they do not seem able to be obligated to this under grave sin, provided they otherwise satisfy their natural office, by which they owe their offspring at least the necessities for the sustenance of life, for Christian education, and for a decent state.

Query 2° Do those about to marry act UNJUSTLY who on the occasion of marriage (as not rarely happens) falsely recognize and legitimate illegitimate offspring, which is not the offspring of both, but only of one or the other?

Resp. With the warning premised that here the doubt is moved solely concerning strictly so-called injustice, at least inchoative, toward future heirs, it must be said: concerning strict justice toward future heirs, in the proposed case, at least in those States where children are not necessary heirs, it is not certainly established; and therefore such persons about to marry are not to be compelled to restitution.

n. ¶908.

- Occupation of inheritance. "Power to administer the property" of an intestate is "granted" by the Court¹ "in the following order: 1st, to the widow; should there be none, then, 2d, to the children; should there be none, then, 3d, to the father; 4th, to the brothers; 5th, to the sisters; 6th, to the grandchildren; 7th, to any other of the next of kin. If any of the persons so entitled are minors, then to their guardians; if the relatives or guardians will not accept, then to the creditors of the deceased, the creditor first applying, if otherwise competent, to have the preference."²

Vol. I, TREATISE ON CONTRACTS, SECOND PART: ON CONTRACTS …, Ch. II, Art. III, § III. On Testamentary Succession, or on Those Dispositions of Law Which Pertain to INSTITUTED HEIRS and to LEGATEES

n. ¶909.

What a testament is. - "A testament is the just sentence of our will concerning that which someone wishes to be done after his death." Thus Modestinus in Roman Law.² This definition is more conformable to our Law, because it does not require that either an heir be instituted in the testament, or some legacy be left in it. Namely it suffices that the testator declare what he wishes to be done after his death, for example in what manner the funeral is to be held, etc.

n. ¶910.

- In what manner a testament is to be interpreted.

1° Clear words do not receive interpretation.

2° If words admit multiple sense, the mind of the testator is to be attended to. But the mind of the testator is judged to have been that which is more conformable to the nature and object of his last will. He must also be judged to have willed that his testament effect something, and not to have willed anything which is contrary to laws.

3° A condition adjoined to a last will is to be held, a) as not appended, if it is either unintelligible, or impossible, or contrary to good morals or laws (yet see what was said in n. 870, 2°); b) as fulfilled, if he whose interest it was that it not be fulfilled impeded its fulfillment (n. 870, 5°).

4° A testamentary disposition resting on a final motive, either false or contrary to laws or good morals, is to be held null.

5° A disposition of last will obtained by force, fraud, or evil arts, is null.

n. ¶911.

Who can, and who cannot, make testament. - "All persons of sound mind, except infants,... married women," corporations, and with regard to real estate aliens, "are legally entitled to dispose of their property by will; and infants of the age of fourteen, if males, and twelve, if females, may make wills of personal property. But this rule of the common law has been generally modified by statute."¹ Thus for instance in many States married women are not excluded, and in all "the wife may dispose, by will or by act in her lifetime, of her separate personal estate, settled upon her, or held in trust for her, or the savings of her real estate given to her separate use."² "Equity will carry into effect the will of a feme covert, disposing of her real estate in favor of her husband or other persons than her heirs at law, provided the will be in pursuance of a power reserved to her in or by the antenuptial agreement with her husband."³ On the contrary, in many States the restriction laid upon infants has been increased by the prescription that personal property may be willed by males at the age of eighteen, and by females at sixteen. With regard to aliens, see n. 654 and 906, 2°.

If it is a question of a testament to pious causes, by Canon Law those capable are the pubescent, i.e. males who have completed the age of 14 years, and females who have completed the age of 12 years.

n. ¶912.

Who can be instituted heir or legatee. - Generally in this country all natural persons, without exception, are capable of taking by will, provided:

a) They be in being at the time of making the will, or be the immediate issue of persons then in being;

b) They be not subscribing witnesses to the will.

Whether corporations can take by will or not, depends upon the express provisions of their charters. With regard to aliens see n. 654.

n. ¶913.

Of what goods anyone can dispose. - All a man can dispose of in anticipation of death is the surplus which remains a) after all his debts are paid, and b) the widow's dowry (n. 605) has been subtracted. Yet by natural right, as was said in n. 902, some part of the goods must also be left to children, and by reason of charity and piety under grave sin also to brothers and sisters constituted in extreme or grave necessity.¹ - In Louisiana the quota of goods concerning which the testator can dispose is determined otherwise.²

n. ¶914.

- In what form a testament must be made so that it is valid.

Preliminary Note. - A testament is either holographic, which has been wholly written by the proper hand of the testator; or solemn, which has been made by the rite prescribed by law; or nuncupative, which is pronounced by words only; or privileged, which from the favor of law is valid, the customary solemnities being omitted; for most laws concede to sailors and others staying at sea, and to soldiers, the privilege of disposing concerning movable things without the customary solemnity. A codicil is called a disposition of last will by which something concerning a testament is explained or changed by adding or subtracting. A fideicommissum is a disposition of last will by which the testator commits something to the faith of another, for example, fields, whose fruits he may expend for the utility of another.

Which of these testaments are valid in individual States, and in what form, and for what goods they are valid, let each one see from the laws of his State. Let it suffice to note these general things:

a) "Nuncupative, unwritten wills are always unsafe; and, although they are legal under many circumstances, they rarely fail to leave room for troublesome and expensive litigation."³

b) "A codicil... must be executed with the same formality as a testament, - that is, in the presence of the same number of witnesses."¹

c) In making a will the intention of the testator... should be fully and plainly stated; if the testator intends to give the property for a certain number of years, or for life, or forever, he should say so; he ought also to describe the property with reasonable certainty, as, for instance, "my house and lot known as No. 1 Bond Street, New York," or "my six houses and lots known as Nos. 81, 83, 85, 87, 89, and 91 Pearl Street," or "my farm of one hundred and sixty acres, in Claverack, Columbia County, State of New York," or "my gold watch," or "my horse," etc., etc.²

d) "All wills" (the nuncupative excepted) "must be made in writing, with the testator's full name at the end,"³ written either by himself or some other person in his presence, and by his express direction. Every person, however, who shall sign the testator's name to a will by his direction, must write his own name as a witness to the will in the presence of two other witnesses.

e) "Witnesses should always write their respective places of residence after their name."⁴

f) The number of witnesses required varies in the different States. In Pennsylvania, however, no subscribing witnesses are required, provided the signatures to the will can be proved by the oaths of two respectable witnesses.

n. ¶915.

- On the value of an informal testament, i.e. a testament to which are lacking the formalities required by civil law under penalty of nullity.

Query 1° Is a testament of this kind, made for pious causes, valid?

Resp. With the observation premised that testaments are judged to have been made for pious causes insofar as in them something has been left to a Church, or Pious Place, or Sodality, or certainly to a person, so that divine worship, or the good of souls, may be promoted, or the calamity of the poor be relieved, we profess without any hesitation, with the opinion today most common and certain: such testaments, although destitute of legal forms, are valid in the forum of conscience and to be committed to execution; provided it is established to the heir (I do not say: concerning a velleity or inefficacious purpose, but) concerning the will of the testator, whether through his indubitable writing, or through words heard from him or in another similar mode, or also through witnesses; yet in this last case, namely if certitude must be acquired only from the testimonies of others, according to St. Alphonsus,¹ the testimony of one, even of a pastor or confessor, does not suffice, but at least two witnesses are required, whether male or female.

The reason for this assertion is: because by the very fact that someone disposes of his goods for pious causes, this matter becomes spiritual, and therefore subject to the jurisdiction of the Church, which is indeed free and immune from civil power in all things which directly fall under her jurisdiction. But the Church decrees that the aforesaid testaments, provided the will of the testator is established as above, are valid and to be executed for the forum of conscience; as is manifestly drawn both from various texts of Canon Law and from diverse responses of the Sacred Penitentiary, among which we judge especially to be noted here the following response given to the Canon of Angers, on the 23rd day of June, 1844.

POSTULATE.

"Eudorius, ... destitute of necessary heirs, ... determined to spend part of his goods on pious works. For this end he instituted Boniface universal legatee through a testament clothed with the due forms. But he handed to Boniface a private writing, in which he manifests his pious will and asks him to execute the same faithfully. - But Boniface, Eudorius being dead, keeps the whole inheritance from the fact that he holds it by a valid testament. It is asked whether he can be safe in conscience."

The Sacred Penitentiary responded: Boniface is bound in conscience to fulfill the certainly known will of Eudorius.

Note. - By the name of pious cause do not come those institutes of public beneficence which, by law, are not subject to ecclesiastical direction but only to the direction of civil power. Such are hospitals, hospices, orphanages, foundling-homes, places destined for the care of public want, and other similar things, which among us exist for the use of all citizens indiscriminately under the administration of the civil power alone or of some lay college.

n. ¶916.

Resolutions. - Therefore heirs who refuse to execute a testament for pious causes, certainly known, although informal, cannot be absolved sacramentally; unless perhaps (as often happens in this matter) they are in good faith ignorant of their obligation and there is fear that they will not obey the warning of the confessor. Yet in this case the confessor, if it can be done, should recur to the counsel of the Ordinary, to whom from the Council of Trent¹ the care of execution of pious dispositions has been entrusted.

n. ¶917.

- Query 2° Is an informal testament TO PROFANE CAUSES valid?

Resp. Just as we think it must altogether be affirmed that defect of civil formalities does not prejudice pious testaments, so on the contrary we easily concede that defect of the same formalities can greatly harm profane testaments, if such was the mind of the legislator, to whose jurisdiction profane causes are subject. But whether the mind of the legislator was in fact such, namely of invalidating informal testaments of themselves even for the internal forum, is very greatly controverted. Three opinions are commonly brought forward, of which the first affirms, the second denies, while the third, walking as it were by a middle way, defends that the legislator indeed wished to invalidate informal testaments, but only in such a way that this invalidation would not have its full effect except after the sentence of the judge.²

In so great a conflict of minds, we think the following can be established, as sufficiently consonant with natural equity and the more common practice.

1° An heir from intestacy can licitly use the benefit of the law and seek rescission of an informal testament from the judge, provided he is not from elsewhere bound to the execution of such a testament, say, if by force or fraud he had impeded the making of a valid testament, or if it were a question of testaments for pious causes, for paying debts, or for making restitution.

2° When an informal testament has been rescinded by sentence of the judge, an heir or legatee from such a testament, by force of this testament, will no longer be able to accept anything for himself; and if perhaps they have already occupied some goods in good faith, they ought to return them to the heir from intestacy; nor do they seem able to use occult compensation in any way. Indeed, as regards occult compensation, St. Alphonsus¹ (against others) would not admit it even before sentence of the judge against the heir from intestacy, supposing that the latter was already in real (and not only in fictive) possession of the inheritance. - But if the informal testament has not yet been rescinded by the judge, but the heir from intestacy has certainly proposed to seek that rescission, the heir or legatee from such a testament seems bound to the same thing as above, at least from charity, because, since the rescission is going to be certain, they ought not to be in cause why the adverse party should sustain expenses and inconveniences of litigation. Yet we would not dare to affirm, says Bouvier, that those who even in this case wished to await the sentence of the judge would sin against justice.

3° An heir or legatee from an informal testament, with safe conscience, can enter upon the inheritance and accept the part falling to himself, or demand and retain goods left to him, if the heirs from intestacy do not use their right. Nor are they bound to warn them of the defect of formalities, which perhaps they are ignorant of, provided they have not concealed that defect from them by fraud or another unjust way.

4° Heirs from intestacy, if they have once voluntarily held ratified, confirmed, or paid the donations of an informal testament, seem no longer to have recourse to the judge. L. IV. 928 under 4 and 5.

Note. - He who has acquired and retains the inheritance from an informal testament, by that very fact is bound to the payment of a legacy perhaps imposed on him in the same testament. For it is not licit to change afterward a probable opinion once chosen, if from such a change certainly one law would be violated, as is clear from what was said in n. 76.

n. ¶918.

- Query 3° Is an heir from intestacy, who promised the testator that he certainly would pay the legacies even if the testament were informal, truly bound by that promise?

Resp. With a distinction: either the testator, on account of this promise, abstained from making a testament clothed with the due forms, or from inscribing such a legacy, or not.

If the former: we judge that the one promising is bound in the forum of conscience to preserve the legatee unharmed; for if, by making the promise, he intended not to fulfill it, he committed fraud and thus unjustly impeded another from the attainment of a good, and therefore he is bound to reparation; but if he promised sincerely, he indeed did not commit fault, but he would commit it by changing his purpose and thus inflicting true damage upon him who otherwise would have been instituted legatee.

If the latter: namely if the testator did not abstain on account of this promise, the solution will be various according to the variety of opinions concerning the value of an informal testament. If the opinion is admitted which teaches that such a testament is valid, it must be resolved that the one promising is bound from justice to fulfill the promise. But if the opinion is admitted which teaches that such a testament is invalid, it can be resolved that the one promising is not held from strict justice, since a private agreement cannot derogate from the disposition of laws, as supposed in this opinion.

Therefore, when the case assigned here occurs, fulfillment of the promise seems able to be much advised and urged by title of fidelity, but not imposed under grave obligation, unless perhaps it is a question of paying debts or of pious causes, to which this whole third question in no way pertains.

But if that promise were confirmed by oath, according to St. Alphonsus (see n. 866), it would have to be observed under grave obligation, not indeed from justice, but from religion, unless the bond of the oath is relaxed by competent spiritual authority.

n. ¶919.

In what manner a testament is revoked. - "The will of the deceased is ambulatory up to the supreme end of life,"¹ i.e. a testament can be revoked or changed as long as the testator is among the living. The cases in which a testament by our law is judged revoked are nearly these:

1° "Marriage and the birth of a child after" the will has been made, "provided such wife and child were unprovided for."²

2° "The will of a single woman is annulled in law by her marriage. But a woman," as has been said (n. 911), "may make a deed of settlement of her estate before marriage which shall empower her to retain her right to make a will after marriage."¹

3° "A sale of, or an agreement to sell, property devised in a will, is a legal revocation of a will."²

4° "Children born after" the will has been made, "and not provided for by settlement, are entitled, at the death of the testator, to such share of the property as they would have had if no will had been made."³

5° A will is also revoked: a) by intentionally destroying, tearing, cancelling, or obliterating it; b) by making a subsequent will; but generally the subsequent will must either contain words expressly revoking the former, or make a disposition of the property different from, and incompatible with the preceding;⁴ c) by making a codicil for the express purpose of revocation.

In what manner a testament is revoked in Louisiana, see Civil Code of Louisiana.⁵

n. ¶920.

On the execution of a testament. - 1° The executor is instituted by the testator; but "no person can be an executor of a will who, at the time the will is proved, is either an alien, under 21 years of age, a drunkard, a convict, or deficient in understanding." Nor can a married woman be appointed. If no executor be appointed by the testator, or if the one appointed renounce such appointment, the law provides for one in different ways in the different States.

2° A will is of no effect until probate has been made, and the first duty of an executor is to have the will proved in the proper court.

3° After probate of the will, the executor is to follow its directions as far as they go; in every case, however, he has to make an inventory of the goods of the testator and to pay his debts according to the order prescribed by law.

Merkelbach, Summa Theologiae Moralis

Benedict Henry Merkelbach, O.P. — 13 passages

Vol. II, Special Moral Theology: On…, Treatise: On the Cardinal …, Third Part: Concerning Com…, Sect. C, Ch. II, Question Three: On Testament

490. Testament is an essentially revocable act by which the testator disposes of his goods, or of a certain part of them, for the time following his death¹ (a. 895). It is said:

¹ Roman law and many modern laws still distinguish between testament, codicil, and legacy. Testament is an act or disposition of last will by which someone appoints an heir of goods. Codicil is a declaration of last will by which, without institution of an heir, one decrees something concerning succession, especially a secondary disposition, an explanatory or modifying addition directly adjoined to a testament already made. Legacy is a last disposition by which the testator directly leaves something from the goods of the whole inheritance to another, to be handed over or furnished to him by the heir. But in French law (a. 895), generally every disposition concerning one's own goods is called indiscriminately a testament.

an act, because strictly it is not a contract: for there is not an agreement between the testator and the legatee, which requires a twofold act, but one act by which the testator alone expresses his will, independently of any acceptance by another, so that the force is from the testator alone;

essentially revocable up to death, while donation inter vivos is of itself irrevocable;

by which the testator, namely the very person of the testator, and not his delegate; indeed of itself an individual person: for if it were made by several in the same act, the testament would now be void, because joint and mutual testament has been suppressed by present-day law² (a. 968);

² Yet there are exceptions. The German code (a. 2274) and the Swiss (a. 512) permit mutual pacts in an authentic testament; and the Austrian code (a. 602) among spouses alone, just as it also permits parents to make testament for minor children concerning goods which they themselves leave to the children (a. 609); but the Lusitanian code (a. 1589) admits a general substitution of parents into the place of children. Nevertheless mutual pacts of spouses are generally admitted in the matrimonial contract itself.

disposes of his goods or of a part of them: for in the present matter the last will of the testator is considered in order to the dominion, use, and administration of his goods;

for the time following his death: for a testament does not transfer right and dominion actually, here and now, but only after the death of the testator.

And therefore testament differs from donation: a) the former is an act, the latter is a contract; b) the former is revocable, the latter irrevocable; c) the former does not transfer right and dominion actually but only for the time following death; the latter transfers these actually in the present. And nevertheless testament is deservedly reduced to donation, because it transfers dominion gratuitously, and because by the consent of the legatee it must be accepted while the will of the deceased has not been revoked.

491. Concerning the origin of the right of making testament there has been manifold opinion. Now:

1° It is certain that some hereditary right of itself is founded in nature, namely that by which children, parents, or even those closely joined succeed in the goods of the deceased (unless they have legitimately been excluded by him), because private dominion is necessary not only for individuals, but also for the family and on account of the stability of family goods: "If a son, also an heir," says the Apostle to the Galatians, IV, 7. Whence goods, by destination, already pertain to the family, by which it happens that there already exists a special bond by which there is born a right of occupying the goods of the deceased; otherwise the connection and perpetuity of the family would be endangered.

St. Thomas recognizes this, Contra Gentiles III, 123, and in IV Sent., d. 33, q. 2, a. 1; and at least it must be admitted, because, as Pius XI says in the encyclical Quadragesimo anno: "For always the natural right itself both of possessing goods privately and of transmitting goods by inheritance must remain intact and inviolate, since the state cannot take it away."

2° It is probable that the unlimited right of making testament, or of perfectly disposing of goods after death, is founded in natural law, on account of reasons similar to those for private dominion, of which it seems to be the complement. For the dominion of a private man on the one hand is exclusive and permanent, especially in things made or improved by him; on the other hand, the reason because of which the division of possessions was necessary, namely that there be a sufficient stimulus for labor, and greater care and progress in labor, also holds in some way for the right of disposing concerning goods after death, so that those things may be procured more efficaciously.

But this is not altogether certain, because it does not clearly appear how someone can dispose of his goods after death, or for a time in which he no longer has dominion. Whence some derive this right from human law; nevertheless it is certain that nature at least counsels the right of making testament as most fitting.

3° Yet many things regarding it from natural law alone remain indeterminate and uncertain, especially concerning the manner of exercising that right, and concerning the limits by which it is circumscribed lest it turn to the detriment of society, civil or familial. Whence most certainly there must be recognized in the civil legislator the power of determining that right and establishing its limits, even under penalty of nullity of testaments in the forum of conscience.

Sabetti-Barrett, Compendium of Moral Theology

Aloysius Sabetti, S.J., and Timothy Barrett, S.J. — 3 passages

Vol. I, Tr. IX, Pt. II, Sect. I, Ch. II, Art. II, § I, Division, and Form of Testaments

n. 509.

A testament, from Roman law, is the just sentence of our will concerning that which someone wishes to be done after his death. This definition seems to be preferred to that which Busenbaum hands down and St. Alphonsus implicitly approves, n. 919, both because our Kent embraces it, and because it does not require the direct institution of an heir, which is consonant with our laws. - Cf. Kent, Comment. vol. 4, part 6, lect. 68, n. 502.

A testament is distinguished variously. For:

1st. From Roman law it is solemn and privileged. A solemn testament is subdivided into closed and open. The first, which is also called written, is that which, sealed with a seal, is handed over to be subscribed by seven suitable witnesses, males, pubescent, etc., with whom the testator subscribes, if he can; but if he cannot, an eighth witness must accede. The other, namely open, is made before seven witnesses, whether by an open writing or by the living voice, and therefore it is also called nuncupative. But a privileged testament is that which is valid without solemnities. Such is a testament established by a soldier, or by others in time of plague or in other circumstances of this sort.

2nd. From our law a testament is written, nuncupative, and holographic. A testament which is called written is generally that which is made concerning immovable goods; it must bear on its face the name of the testator, or at least be acknowledged by him as his own before two witnesses, who also must subscribe. The number of witnesses is diverse in diverse States, but nowhere are seven required. - I said concerning immovable goods, because a testament concerning movables is recognized as valid provided it has been made according to the laws of the place where the testator has domicile. A nuncupative or verbal testament is also admitted in the States of New York and New Jersey for sailors and soldiers; indeed in some other States it is valid for all, but with certain conditions observed. Nevertheless it must be noted that a testament of this sort often gives origin to lawsuits and discords, and therefore is not safe. A holographic testament also exists among us, but only for the State of Louisiana. - Cf. Kenrick, nn. 29 and 31. - Kent, Comment. vol. 4, nn. 513 and following. - Wells, Every Man, etc., pp. 92 and 93.

A nuncupative, or verbal, or oral testament is made before witnesses by a testator placed in extremis or placed in equivalent circumstances; afterwards it is reduced to writing. This testament is reserved to soldiers under arms and to sailors navigating; it is valid for certain goods only (personal estate) in Massachusetts, Minnesota, New York, Rhode Island, Virginia, West Virginia, Montana; in Georgia for personal and real goods, as they are called. In various States the conditions vary. - Bouvier, Law Dictionary, Ed. 8, "Nuncupative Will."

A holographic testament is written wholly by the hand of the testator, is signed by him, and a date is affixed by him. Generally it does not need witnessing.

A mystic testament is written and must be signed by the testator before seven witnesses. It is recognized in the Civil Code of the State of Louisiana.

n. 510.

I say. That a testament may be firm and valid, at least in the external forum, it is required: 1st, that it have the conditions required for gratuitous contracts, and first of all free and spontaneous consent; 2nd, that it not be made by one incapable of testating, nor in favor of one incapable of receiving, or of succeeding into the rights of the deceased; 3rd, that the formalities prescribed by law be observed. - I said at least for the external forum, because it is disputed among theologians whether execution of legal formalities is required for the forum of conscience, as will be said immediately. But who are incapable of testating and of succeeding into the rights of the deceased will be said immediately in § II.

n. 511.

Question. Are testaments valid, whether for profane causes or for pious causes, if they lack legal forms?

Resp. If it is a question of profane causes, it is sharply disputed, and a threefold probable opinion is had: the first holds that testaments of this sort are valid from natural law and in the forum of conscience; another teaches that by force of positive law they are to be held utterly void; finally the third establishes that favor must be shown to the possessor until the matter is settled by the judge. But if the discussion is of testaments in favor of pious causes, the certain, most common, and altogether to be held opinion teaches that testaments of this sort are valid, and that no one can with a safe conscience, under pretext of lacking these formalities, retain an inheritance which has been assigned to some pious cause. - The reason is that causes of this sort 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.

§2. 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 (Can. 1513).

§1. 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 has expressly conceded this power also to the Ordinary of the place.

§2. If nevertheless the execution of imposed burdens, because 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 with the will of the founder preserved in the better way by which it can be done, will be able equitably to diminish the same burdens, except the reduction of Masses, which always belongs uniquely to the Apostolic See (Can. 1517).

Concina, Compendium

Daniele Concina, O.P. — 12 passages

Diss. V, Chapter VI — On testaments

n. I.

I. QUESTION I. What is a testament, and of how many kinds is it? ANSWER. It is the just declaration of a last human will concerning that which a man wills to be done after his death, with the direct institution of an heir. The true property of a testament, as distinguished from other last wills, is the institution of an heir, who represents the person of the deceased. A codicil is as it were the appendix of a testament, and is written for the changing of something of those things which have been disposed by testament, or for declaring or adding something. Only by privilege can an heir be instituted in a codicil. In some places a testament is valid without the institution of an heir.

n. II.

II. A testament is twofold. One written, or closed and secured with seals. The other nuncupative, or open, which can be formed without writing by the mere naming of words. If a man makes several testaments, the last is to be stood by.

n. III.

III. A legacy is a donation made by a testator, to be furnished by the heir, of some particular thing. A trust is a legacy or inheritance so committed to the trust of a legatee or heir that he cannot alienate it, but must deliver and restore it to him whom the testator prescribes. A trust is twofold: general, by which the whole inheritance is burdened; and particular, by which a determinate thing is committed to the trust of a legatee to be restored.

n. IV.

IV. QUESTION II. What solemnities are required for a nuncupative testament? ANSWER. By common law there are required seven witnesses, male, of full age, who have completed fourteen years, and who, free, invited, and asked, all hear the testator's will. For a written or closed testament it is required that the testator declare before seven witnesses that this is his testament. All the witnesses ought to subscribe. If any be ignorant of writing, let another write for him, and he ought to sign the testament with his own or a common seal. There are excluded from the number of witnesses the dumb, the deaf, the under-age, the heir's father, those who are under the testator's power, the blind, the demented, prodigals, and the infamous. These things by common law. For the rest, individual princedoms have their own peculiar laws, which are to be observed.

n. V.

V. QUESTION III. What solemnities does a testament for pious causes demand? ANSWER. Testaments which destine an inheritance to the poor, to churches, monasteries, hospitals, maidens, or widows are called for pious causes. If a legacy be left in a testament to the aforesaid, the testament is not called for pious causes. As often as the testator's consent is established either from his private writing or from two witnesses, whether men or women, a testament for pious causes is valid, the solemnities prescribed by common law being removed.

n. VI.

VI. For the nuncupative testaments of the blind seven witnesses are required. Soldiers making a testament outside war are subject to the common law; but in war they ought to observe those things which are prescribed by the law of nature, namely that testaments be made before two witnesses, whether men or women. For peasants five witnesses are required. But the municipal laws are to be considered.

n. VII.

VII. QUESTION IV. What is an imperfect testament? ANSWER. A testament is called imperfect either because the solemnities prescribed by law are lacking, or because the testator, stricken by death, could not perfect it. This by common law is null. When it is doubted whether a testament be valid or not, authors commonly assert it to be valid. And if it be for pious causes, it is valid in each forum, as also are pious legacies. If a testator assert in his testament that he has given a signed schedule to his confessor or to another person, and that he wills all things contained in it to be valid, they are to be fulfilled no otherwise than a testament.

n. VIII.

VIII. If a testator lacks full liberty, if he has been deceived by guile, enticements, or frauds, the testament made by him is null. Those who deceive a testator sin against justice, and are held to restitution. The same is to be said of those who craftily hinder a testament from being drawn up.

n. IX.

IX. QUESTION V. Who can draw up a testament? ANSWER. All endowed with the use of reason can make a testament concerning their own goods, unless some law stand in the way, as it stands in the way of religious by force of the vow of poverty, and of bishops as regards the revenues of the Church. Male minors before fourteen and female before twelve years cannot make a testament. Sons of a family can make a testament concerning castrensian and quasi-castrensian goods.

n. X.

X. The crimes proved by a judge's sentence which forbid testament-making are: first, the hostile striking of cardinals, their imprisonment, or cooperation in these crimes; second, heresy, or favouring heretics, and harbouring them; third, condemnation for a libellous pamphlet; fourth, public usurers; fifth, those condemned to death, and those to whom water and fire are interdicted, are unfit to make a testament.

n. XI.

XI. QUESTION VI. Who cannot be instituted heirs? ANSWER. First, heretics and apostates if within a year they have not done penance. Second, those who cannot make a testament on account of a delict. Third, strikers of cardinals after the judge's sentence. Fourth, enemy cities. Fifth, those who kill a testator. Sixth, those who forbid a testament to be drawn up, or one drawn up to be revoked. Seventh, if an heir has gone in to the testator's wife, he is judged unworthy of the inheritance. Eighth, if the testator was a captive and the heir neglected to free him, he deserves to be deprived of the inheritance. But all these things here pertain to the civil forum.

n. XII.

XII. QUESTION VII. How do spurious and natural sons succeed a father? ANSWER. A natural son by common law succeeds in two ounces to a parent not having lawful sons. Two ounces comprehend the sixth part of the goods. This nevertheless in some places is limited, if the father have no wife. A spurious son can by right receive nothing beyond maintenance, whether by testament or ab intestato, even if the father lack lawful sons. Natural sons succeed a mother no otherwise than lawful ones. Various nevertheless are the laws of regions, by which one must stand.

Bontempi, Palladium Theologicum V

Gaudentius Bontempi of Brescia, O.F.M. Cap. — 1 passage

Tr. II, Disputation XI: On Testaments

Slater, Cases I, Contracts, Case 5. A Legacy to the Parish Schools · Slater, Cases I, Contracts, Case 6. A Lost Will

TESTAMENTS were instituted chiefly, lest the goods of the deceased, uncertain, fixed to the dominion of no one, should provoke free men and kinsmen to lawsuits and Discord: Truly, the laws, providing for this inconvenience, incline to the other extreme, in such a way, appending so many conditions, circumstances, and causes to Testaments, that the lawsuits which were formerly threatened by reason of the lack of Testaments are now undertaken with a more difficult outcome, attacking their validity by reason of defects. Hence in disentangling these, laws busy themselves abundantly: here, however, I shall treat briefly of those things which rebound from Testaments into Consciences, remitting the rest to the Jurists. The name of Testament, moreover, is derived from testando (testifying), because by this instrument one soon to die testifies of his own will what he wishes to be done after his death with his goods.

Slater, Cases I

Thomas Slater, S.J. — 19 passages (filed under the subtopics)

Slater, Cases I, Contracts, Case 5. A Legacy to the Parish Schools

Titia consulted a priest concerning her obligations in these circumstances. Recently her husband died, who by his will left her two hundred pounds annually, one hundred to the parish priest for the parish schools, but a much larger part of his property to his brother for the use of a most beloved nephew. Titia, however, since she knew that the witnesses to the will had signed it separately and in different places, contested its validity and won the case. She then obtained letters of administration and, being about to distribute the goods of her husband, wishes to know whether in conscience she is bound to pay the hundred pounds to the parish priest. Hence:

What formalities are required by English law in making a will?

Does a defect of those formalities render a will invalid in conscience?

What is required for the validity of a will for pious causes?

What is to be said of the case?

Solution

What formalities are required by English law in making a will?

n. ¶7.

Those formalities are laid down in the Wills Act¹: “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.”

1 1 Victoria, chapter 26, section 9.

n. ¶8.

Does the absence of those formalities make a will invalid in conscience?

n. ¶9.

Probably at least an informal will is not at once invalid in conscience. It may be taken as a declaration of the last will of the testator and as such acted upon. But the law may be invoked by any one who is interested to have the informal will set aside, and if this is effectively done it must be held invalid in conscience as it is in law.¹

1 Manual of Moral Theology, vol. i, p. 502.

n. ¶10.

What is required for the validity of a will in favor of pious causes?

n. ¶11.

Such wills are subject to canon law, which requires nothing more for their validity than certain proof of the intention of the testator, and the verbal testimony of two witnesses is sufficient for the purpose.²

2 The same work, p. 506.

n. ¶12.

The case. The will of the husband of Titia was invalid by English law, as the witnesses did not sign in each other's presence. However, the legacy to the schools is governed by ecclesiastical law, and as there is no doubt about the intention of the testator, Titia is in conscience bound to pay the legacy. This solution has been upheld by many decrees and answers of the Roman Congregations. Thus the Sacred Congregation for the Propagation of the Faith gave the following answer to Cardinal Logue, April 30, 1895: “Now indeed it is certain . . . that the legacy endures, since the civil law cannot by its authority determine those things which pertain to pious causes; and consequently the legacy binds the heirs according to the tenor and mode of the legacy itself.”¹

1 Irish Ecclesiastical Record, vol. xv, p. 259.

n. ¶13.

A case very like the one proposed was submitted to the Sacred Penitentiary and solved by it, Jan. 10, 1901: “The Sacred Penitentiary, after maturely weighing the matters set forth, responds: The practice of this Sacred Tribunal in similar cases is that pious legacies generally be regarded as valid and obligatory in the tribunal of conscience; the heirs, however, are readily admitted to a composition with the Church or the pious cause to which the legacy was made.”²

2 Acta S. S., xxxiv, p. 384.

Slater, Cases I, Contracts, Case 6. A Lost Will

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:

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

What is to be said of the case?

Solution

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.

Vol. II, Case XIV: A Will Case · Vol. II, Case XVIII: Concerning a Will Case

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.

The Casuist

Various; ed. S. Woywod, O.F.M., and J. A. McHugh, O.P. — 66 passages

Vol. II, Case XIV: A Will Case

A man died recently and left a will, disposing of a small estate. The bulk of the estate was left to his children, but a bequest of one thousand dollars was left to a certain charity. The will was offered for probate, but was declared void by the court, because it was not drawn according to the requirements of the law, and the man was adjudged to have died intestate and his estate was ordered distributed according to law, as if he had died without making a will. The decree of the court, of course, canceled the thousand dollar bequest to the charity. Are the children, nevertheless, bound in conscience to comply with the known will of their father and donate one thousand dollars to the said charity? Or may they accept the decision of the court as discharging their conscience from any further obligation to pay this thousand dollars? These people are in poor circumstances, but they are conscientious Catholics, and desire to know what their strict duty is in this matter.

Answer.—This case comes under the general question of how far the civil law binds or discharges a man’s conscience in the matter of justice..There can be no doubt that the laws of the state may and do bind in conscience, independently of the fact whether the thing it commands or forbids is already commanded or prohibited by the divine or natural law. Laws made by competent authority for the common welfare are binding in conscience.

This is true of the state as well as of the Church. The state is a competent legislative authority in civil affairs. If its laws did not bind in conscience, the citizens would be always at liberty to transgress its laws, made for the common good, whenever their transgression did not involve a transgression of the divine or natural law, and thus defeat the common welfare and circumvent the ends of civil society. Especially is this true of state laws concerning property rights. The civil law, creating or transferring or extinguishing property rights, aims at promoting the common welfare, and nothing affects the security of the citizens or the perma- -nence of the state more than laws regarding property. For the order and security of a community it becomes necessary at times for the civil law to create or extinguish or transfer claims and titles to property.

If the civil law, in accomplishment of this, might not bind the citizen’s conscience, its purpose would be largely, if not wholly, frustrated. Just as the Church, for the promotion of the common good in religious matters, may make laws that bind in conscience, since the Church is a competent legislative authority in religion, so may the state, being a competent legislative authority in civil matters, make laws, that bind in conscience, for the promotion of the political and social welfare of the citizens.

Now the common weal demands sometimes that certain juridical acts be declared void of any legal value whatever, because they work harm to society, and if the purpose of the laws can not be secured unless they place a burden on the conscience, then, since the common welfare demands that they be enforced, they become binding in conscience. Thus a husband is not permitted by law to deprive his wife of her legal share of his property. If he makes a will or a conveyance of property, thus injuring her, the law nullifies or voids his act, as being inimical to the best interests of the community.

Now, if the voiding of the husband’s act did not hold in conscience, the wife would not be allowed to vindicate her rights, and the law of dower would become inoperative, to the great detriment of society. There is no doubt, therefore, that the civil law may wholly annul and make void, not only for courts of law, but for the court of conscience also, juridical acts of citizens, such as the conveying of property, for instance, if the common welfare demands it. In any particular case the intention of the lawmaker or legislature must be examined as to the value or force of formalities required by the law.

n. ¶7.

It is generally admitted, however, by the moralists that laws of the state voiding certain acts and performances of private citizens only void them civilly, or as far as the civil courts are concerned, unless it can be shown that it was within the contemplation of the law to void the act even in the court of conscience. State laws that transfer or extinguish property rights demand a strict and narrow interpretation, because being in restraint of the citizen’s liberty they are aliquid odiosum, and, therefore, strictae interpretationis. Moreover, an act or a contract that is, by its nature, valid, must not be judged invalidated by the civil law, unless it is clearly the purpose of the civil law thus to invalidate it. But when a court does declare certain acts and performances of individuals null and void, then such acts and performances are void also in conscience, because otherwise the declaration of the court would be vain and idle, and public order and security would be put in jeopardy.

n. ¶8.

When contracts, therefore, as for instance last wills and testaments, are declared null and void by the civil law unless certain legal formalities are complied with, it is a probable opinion among theologians, and therefore a safe opinion to follow in practise, that the purpose of the law is to void such last wills and testaments only as far as the civil courts are concerned. Therefore, the heirs to an estate are not bound either in law or in conscience to observe the provisions of a will that has been declared void by the court; and they may demand legally the return of any property that was conveyed under the will, because by so doing they are only enforcing their rights that they enjoy under the law. But on the other hand a beneficiary under a will that has been declared void by the law need not return the bequest until the court has declared the bequest to have been null and void and ordered him to return it.

n. ¶9.

In the case before us, therefore, the children of this man, whose will was thrown out by the court of probate, are not bound in conscience to give the thousand dollars to the charity designated by their father, because they may avail themselves of a law that is just and sound in principle, and made for the protection of society, but whose value would be destroyed if it did not bind in conscience. If, however, any part of the bequest had been already paid over to the charity, the charity could in conscience retain it until compelled by a decree of the court to return it.

Vol. II, Case XVIII: Concerning a Will Case

My Dear Doctor:

In the HOMILETIC MONTHLY AND CATECHIST, Vol. VIII, No. 2, page 170, you try to solve a Casus Conscientiae, a Will Case.^* Now, my dear doctor, I claim that nearly everything you say in that article is absolutely false. You say: “There can be no doubt that the laws of the State may and do bind in conscience.” That the laws of the State may bind in conscience, transeat; that they do bind in conscience I deny, and I prove it. According to Moral Theology, lex non obligat ultra mentem legislatoris. Atqui; no State legislators ever intended to oblige any man in conscience to observe any law. Therefore civil laws do not oblige in conscience. Our civil lawgivers do not acknowledge any conscience. All our civil laws are penal laws, and no more. Hence any citizen is allowed to violate any law of the State without committing a sin, for the law knows no sin.

^* The Case found on page 65 is referred to.

If the laws of the land bind in conscience, then a divorced man may marry a divorced woman!

While the heirs in this case can not be compelled by law to pay the thousand dollars to charities, yet they are bound in conscience to do so, if it can be proven that it was the will of the father that one thousand dollars should be given to charities.

SACERDOS.