Page:Catholic Encyclopedia, volume 9.djvu/144

LEGACIES will, is not a sufficient proof that the testator wished to revoke a previous will ("Acta Sanctse Sedis'^ XXXII, Rome. 1900-01, 202). The contrary opin- ion is now held onlv by a few authorities (Car- riftre, "De contractious, n. 686, Louvain, 1846; D'Annibale, '^Summula theologize moralis'*, IT, n 339, Rome, 1892; Boudinhon in "Le Canonistc con- temporain", XXIV, Paris, 1901, 734). By Roman law, if a testator knowingly bequeathes a tlung not in his possession, it was equivalent to ordering the heir to purchase the thing for the legatee or, if that were impossible, to give him its value. A decree of Gregory I seems to overrule this decision (c. v. De ^ testamentis et ultimis voluntatibus, X, III, xxvi). But it ma^ be replied that this decree, while admitting the principle of the Roman law, intended only to declare that natural equity will often dispense the heir from carrying out the wish of the testator in the mat- ter (Santi, op. cit.. Ill, 242-245). This provision of Roman law oeing not generally known in our day, it is lawful to presume that the testator made a mi^ take, and ih&t the bequest is therefore void.

(4) The Church approved the provision of the Roman law prohibiting; the testator from disposing of the "pars legitima" which the laws ordered to be preserved to the heirs, this being conformable to natural law. Although in our modern codes the "pars legit- ima" is greater than it was in the Roman law, it may be presimied that the Church recognizes the ruling of our codes in the matter. All bequests exceeding the amount which the civil law allows to be dispot^ of freely by the testatoi^ may therefore be reduced. The provisions of the Corpus Jiuris (cc. xiv, xv, xx, De testamentis et ultimis voluntatibus, X, III, xxvi) granting the bishop the "portio canonica" — i. e. the quarter of all pious bequests not affected by the testa- tor to a defimte purpose — are no longer in force.

(5) The bishop can compel the heirs or the executors to fulfil the last wishes of the deceased in the matter of pious bequests (c. ii, v, xix, "De testamentis et ul- timis voluntatibus", X, III, xxvi; Council of Trent, Sess. xxii, "De reformations " ; c. viii). He is also the judge of the first instance in testamentary cases sub- mitted to ecclesiastical tribunals. In virtue of this he has the right to interpret the terms of the will, but any change properly so called of the wishes of the deceased is reserved, we think, to the Holy See, which can make Buch change only for grave reasons (c. ii, "De rcli- giosis domibus". III, 11, in "Clem.")* The Council of Tirent (Sess. XXII, De reformatione, c. vi) recognizes in bishops only the right of executing a change m the wil^made by the pope; this, however, does not prevent a bishop from applying to another object, a legacy left for a definite purpose which can no longer be executed in accordance with the wish of the testator. Propa- ganda grants vicars Apostolic the right of making changes in the will of a testator, in countries where communication with Rome is very difficult, and in eases where it is impossible to carry out the testator's wish; but it obliges them in each case to obtain a sul>- sequent approval of their act by the Holy See (In- struction of 1807, in "Collectanea". I, n. 689). The Constitution "Romanos pontifices" of 8 May, 1881. km down certain rules concerning the interpretation of the terms of a last will (" Acta et decreta concilii plenarii Baltimorensis III ", Baltimore, 1886, 46, 225-

227).

V. Wills OF Ecclesiastics. — ^While canon law has never forbidden ecclesiastics to dispose freely of their own private property, it has always maintained the principle that the superfluous revenues derive<l from church property ought to be devoted to religious or charitable purposes. If they have not been so dis- posed of during his lifetime by the person who was in receipt of them, after his death they should be distrib- uted either as canonical legislation enacts or as a pious bequest. During the first centuries of the

Church, when bishops alone had the admimstration of ecclesiastical property, measures were taken by the ecclesiastical authorities to prevent its dissipation by the heirs of the bishops. Justinian forbade bishops to dispose of the goods acquired by them after their pro- motion to the episcopacy, excepting, of course, their own patrimonial estate (Novelhe, CXaXI, c. xiii). The Third Council of Carthage (397) had already legislated in a similar sense with regard to ecclesiastics (Bruns, "Canones apostolonmi et conciHorum veterum so- lecti'*, I, Beriin, 1839, 134). Moreover, the Theo- dosian Code assigned to the Church the goods of clerics dying intestate, and not leaving chfldren or relatives (V, III, lib. i). These regulations were con- firmed by the popes and the councils (see Decretum Gratiani, II, c. xii, q. 5, "An liceat dericis tcstamenta conficere'*). But, as early as the sixth century, we learn from the decrees of councils that abuses had al- ready crept in: ecclesiastics and even bishops were at- tempting to seize ecclesiastical property on the death of their confreres (Decret. Gratian, loc. cit., q. 2); later, it was the turn of the laity; emperors, prmces, lawyers, and patrons claimed a right to the spoils (Jus spoilt or exuviarum).

To remedy this stato of affairs, the reforming popes of the eleventh and twelfth centuries forced the em- perors to renounce explicitly their right to the spoils, and the Third Council of Lateran (1179) as well as Alexander III made certain enactments regarding the estates of ecclesiastics; the latter were free to dispose of their own patrimony, the "peculium patnmo- niale", as canonists call it, i. e., all ^oods which eccle- siastics acquired by inheritance, will, or any kind of contract soever, but independently oi the ecclesiasti- cal character. They might dispose likewise of the "peculium industriale" or "quasi patrimoniale", L e. the property acquired by their own personal activity. To tnis was likened the "peculium parsimoniale", or that portion of the revenues coming from ecclesiasti- cal benefices, which the beneficiaiy might reasonably have spent on himself, but which he economized (Santi, op. cit., Ill, 210). But he was forbidden to dispose of the " peculium l^eneficiale", the superfluous revenue of the benefices ho held, and which he did not distribute in good works during his life. In principle this was to pass to the church in which the ecclesiastic held the benefice. However, Alexander III does not blame the custom, where it exists, of bequeathing some part of this "peculium" to the poor, or to eccle- siastical institutions, or even, as a reward for services rendered, to persons, w^hether relatives or not, who have been in the service of the deceased cleric (cc. vii, viii, ix, *xii, De testamentis et ultimis voluntatibus, X, III, xxvi).

It does not follow, of course, that the law was ob* served; the "spolium" remained customary among ecclesiastics, especially abbots of monasteries, chap- ters, and bishops fc. xl, "De electione" in VP, I, 6; c. ix, "De officio ordinarii" in VP, I, 16; c. i, "De ex- cessibus prselatorum ", in Clem. V, vi). The popes themselves saw in it a means of increasing their rev- enues. As early as the fourteenth century, they re- served to the Holy See that portion of the property of ecclesiastics which the latter could not dispose of freely, with certain exceptions. These fiscal meas- ures reached their highest limits? during the Western Schism. They met with vigorous opposition in France, where the kings rcfus'^d to admit the right of the pope, and also in the councils of the fifteenth century. Nevertheless the popes maintained their claims for a long time (see tnc Constitution of Pius IV "Grave nobis", 26 May, 1500 in "Bullarum am- plissima collectio", ed. Cocquelines, IV, ii, 18; that of Pius V **Roinani pontificis providentia", 30 August, 1587, Ibidem, 394; and of Grcgor\' XIII, "Officii", 21 January, 1.577, Ibidem, IV, iii, 330). On 19 June. 1817, Pius VIII declared that Propaganda was entitled