Palladium theologicum, Tomus quintus: De virtutibus

On Testaments.

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.

What a TESTAMENT is, and of how many kinds.

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

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

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

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

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

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

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

What solemnity is required for a sealed and an opened Testament.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Who can, and ought to make a testament, or be instituted heirs.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

NOTE that in default of ascendants and descendants, even if the testator has collateral kinsmen and brothers, it is free for him to institute as heir even an extraneous person §. 1. Instit. de inoffi. test. lib. fratres, Cod. eodem.

Yet if he leave the inheritance to an infamous person, the brother will be able to act for the rescission of the testament, provided he be not merely uterine, etc., according to the same laws.

But to this testator, when free, poor kinsmen are commended, on whom he may have mercy, and that he not institute unfit heirs, whom Sylvest. enumerates v. haereditas 3. quaest. 1. et alii Summistae.

In these Sylvest. enumerates the excommunicate, but wrongly, as Suar. proves 3. p. t. 5. disp. 15. sect. 9. et Ioan. Baptist. Villalob. l. com. op. v. Excommunicatio. Heretics, however, and others expressly designated by the law, are excepted, as Fagund. notes loc. cit. num. 21.

NOTE that all who are not prohibited by law can be executors of testaments. It happened, however, that one of ours, dying, when he had been left by his Father to assist his demented brother, with the faculty of naming another at death, named another; it was asked whether he had done this licitly.

IT IS ANSWERED affirmatively, because, although the Friars Minor cannot become executors of last wills, according to Clem. Exivi, §. Proinde iur. Sanctus, de verb. signif. they can nevertheless name executors with the license of a superior. So Rodriq. t. 3. qq. Reg. quaest. 70. art. 2. et in summa, p. 2. cap. 70. Vecchis Praxi, disp. 8. dub. 13. Couar. in C. Tua nos, num. 1. de testam. Sanch. l. 6. Moral. cap. 11. Diana p. 8. tract. 5. resol. 13. where he enumerates 25 Doctors in this opinion. Nay, Bassaeus our own adds to them that it is probable that the same Friars Minor, and a fortiori the others, can be constituted, with the license of their Superiors, Commissaries for making a testament in the name of the one committing it.

IN explanation of the decree of Clement I say that there the matter concerns properties, and therefore the friars are excluded from executing it by their own authority, but not by the authority of another, the testator's, for the doing of the work. Thus I explain D. Bonav. epist. ad Provinciales.

Whether an heir instituted in a testament, invalid by civil law through defect of solemnity, can in the forum of conscience take possession of the inheritance, despoiling the heir succeeding ab intestato.

THE first opinion is that the will of the testator is to be executed, and consequently that the heir, though invalid by civil law, can in conscience take possession of the inheritance. So Innoc. in cap. sicut de elect. and in cap. celebrata de cler. excom. Abbas in cap. Quae plerique, de immun. Eccl. Iason. in l. Nemo potest, de legatis, where it is had expressly from c. ultima voluntas, 13. quaest. 2. deduced from the Decretals of D. Gregory Pope there: The last will of the deceased ought to be preserved in every way. Which the Doctors understand of testaments of this kind. So also Bartholus in Minor. l. 1. cap. 3. ad l. Nemo potest, ff. de legatis 1. and other Jurists, as in Couar. in cap. cum esses, de testam. Fagundium de contr. l. 6. cap. 7. Sotus l. 4. de iust. quaest. 5. art. 3. Medin. de rebus restituat. quaest. 23. Adrian. quodl. 6. Molina T. 1. de iust. disp. 81. Less. l. 2. cap. 19. dub. 3. Sylvest. v. haered. quaest. 7. Reginald. l. 25. num. 105. Bassaeus v. Haeres.

THE NEGATIVE, on the contrary, is upheld by Cevallos l. 2. contr. com. quaest. 71. Bald. in l. 1. num. 55. C. de Sacros. Eccles. Couar. in cap. cum esses de testam. de Gomez in l. 3. Tauri, num. 121. Spino in speculo testam. gloss. 8. Cenedo 2. p. collect. 67. ad Decretal. Menchaca de success. creat. §. 2. Gutierrez l. 2. qq. Canonic. cap. 5. Cervant in l. 3. Tauri, num. 189. Ledesm. 2. 4. quaest. 18. art. 1. dub. 12. Victoria 2. 2. de restitut. initio, Sotus l. 4. de iust. quaest. 5. art. 3.

THESE, however, are divided; for Sotus, Victoria, and others in Couar. hold that the civil laws concede to the successor ab intestato restitution in the external forum, and retention in the internal, not the translation of dominion to him, but to prevent its being transferred. Others, however, concede even this, with whom subscribe Malderus, Salas, Becanus, Vasquez, Bonacina, and others, as in Diana p. 1. tract. 8. resol. 75.

THIS seems to be the opinion of D. Bonav. in 2. dist. 44. art. 2. et 3. and in 4. dist. 18. D. Thom. 1. 2. quaest. 62. art. 4. and of as many as assert that the laws of Princes oblige also in the forum of the pole, whom I cited in tract. de Legibus, disp. 5. quaest. 1. et 2.

THIS grave decision is extended to all civil contracts, so that those who are void by civil law are such also in the forum of conscience.

MANY, however, follow a middle way, that if the will of the testator be fully established, the heir instituted in a less solemn testament can retain the inheritance. This common opinion Fagund. strengthens num. 6. with Couar. ad cap. cum esses, de testam. and with the authors of the first opinion they bring forward others.

THEY SAY second, that if the heir ab intestato reasonably opine, or doubt, that some fraud has been introduced into that testament, he can justly act for its rescission; Fagund. agrees num. 12. with many in Couar. loc. cit.

I ASSERT with the second opinion that it is probable that the Heir ab intestato can rescind a testament in which another is instituted without solemnity, and that in the meantime the inheritance cannot safely be taken possession of by one so instituted.

IT IS PROVED first: The laws of Princes, being just, oblige in the forum of the pole; but the Laws decree that heirs instituted without solemnity are excluded, l. hac consultissima, Cod. de testam. and Instit. Quibus modis testamenta infirmentur, §. penult. and these are received throughout the whole world, as just, and most gravely necessary for the public good, lest the resources of the dying be squandered by frauds: Therefore. The major is broadly demonstrated in l. c. de Legibus.

IT IS PROVED second from other laws which so dispose, and void in order to avoid frauds, nor do they lack effect even with the fraud removed, as in the alienation of pupils, etc., which therefore is null also in the forum of conscience.

I ASSERT second. If the will of the testator be rightly established in the forum of conscience, the heir can safely in conscience take possession of the inheritance. This is D. Bonaventure's, as I shall show.

IT IS PROVED first. The laws of Princes are just, and oblige in conscience, which are consonant with the law of nature, and much more if they are thus interpreted by the Legislator: But it is of the law of nature that inheritances be of those to whom the legitimate owners justly leave them, and to this sense even the civil laws come: Therefore. The major is evident, from what was said de Legibus, disp. 1. quaest. 4. and disp. 2. quaest. 6. The minor is shown from both Laws, the Canonical, and the CIVIL.

And indeed Pope Innocent in cap. quod sicut, and in C. quia propter, de elect. thus decrees: If any election be valid by the law of nature and of nations, even though the solemnities required by civil or canon law be lacking, it is valid in the forum of the pole, because the solemnities of positive law were invented only to avoid frauds, and in the forum of conscience natural truth is to be preferred. But this is consonant with the law of nature, that the transmission of inheritances be taken from the will of the Lord: it is proved in the Institution de rerum divis. §. per traditionem; where it is said: Nothing is so conformable to natural equity as that the will of the owner, willing to transfer his thing to another, be held valid.

THAT the civil laws themselves thus unfold in the forum of the soul is proved from Authent. de nuptiis, §. disponat. collat. 4. where it is related that the last will of the deceased is to be preserved as law. And in C. ultima voluntas, causa 13. quaest. 2. these words are had: The last will of the deceased ought to be preserved in every way. But more formal is the text in leg. inutiliter, Cod. de fideicommiss. where, when the Emperor had said that in a less solemn testament a fideicommissum left is uselessly left, namely that for exacting it no action be granted in a judicial forum, he adds: If the heirs, having discovered the will of the deceased, had performed it, it cannot thereafter be reclaimed. The Emperor gives the reason, Because satisfaction seems to have been made to the will of the deceased not from the writing alone, but from the conscience of the fideicommissum left. It is confirmed by the consensus of Jurists saying that a less solemn testament has such force that the legacies left in it can not only be possessed in the forum of conscience by a legatee in possession, but be defended in a judicial forum by a legitimate exception: so Bartol. ad leg. Nemo potest, ff. de legatis, and others, as is clear from Gamma decis. 347. and Claro §. Testamentum quaest. 90.

If they say that this text proceeds concerning legates, and fideicommissa, not concerning heirs.

I say that it is commonly conceded concerning these also by Jurists and Theologians, as we have seen.

Hence I argue a fortiori from D. Bonav. Laws are to be kept from conscience the more gravely, the graver are the things commanded: But the laws yield to the last will in conscience, that last wills be fulfilled, interpreting the legacies, etc.; therefore much more as regards inheritances. For these are much graver, and it would be much more grave and hard for the testator to see the inheritance distraught, against his will, than a legacy. Therefore by the instinct of nature no one, even of timid conscience, will wish to restore the inheritance conferred on him by a testator, even if less solemnly.

Therefore from the observance of the laws, enjoined on us in the forum of conscience according to the mind of the Legislators, it is brought out that the SS. Doctors are for the first opinion, not for the second, as Fagund. thinks num. 3. nay, that they agree with the third.

From what has been said for the second assertion the response to the arguments of the first is clear: For laws are to be interpreted, and observed with great wisdom, discretion, and spirit; for so they are enjoined by God and the Apostles for the good of the Republic, for justice, and peace, and therefore the rectitude of nature is to be kept, as also justice, etc., as the S. Doct. de Eccles. Hierar. p. 2. cap. 3. discusses.

In what ways a Testament is revocable.

Not unfittingly is the will of a man called Ambulatory until death leg. 4. ff. de adimend. leg. since it often uses to walk and return by the same way, as is clearly proved in the revocations of testaments, on whose occasion this was said.

And first indeed the laws concede to the testator, until his death, to declare his own testament void, unless he be a Religious who made his testament before the solemn emission of his vows; the reason of each is, because until death the testator commonly has free dominion over his own goods; not so if he be a professed Religious: And this stands thus even if the testator should have sworn or promised that the testament of his last will would be irrevocable: because what nature can do can always be retracted, and cannot be made irrevocable by any extrinsic addition: Yet understand this of valid revocation; for a testament confirmed by an oath will not be able licitly to be revoked, since thus God would be brought in as witness to falsehood: Vasquez, however, says that in the forum of conscience a second testament would be not only illicit but also invalid, if the first had earlier been strengthened by oath; the opposite, however, is the more common view, for many things are done validly that are not done licitly.

Nor does it stand in the way that the Oath is accessory to the testament, as to a principal, whose nature, licitly revocable of itself, it ought to follow. For this is true, when the conditions are not expressly excluded; but one swearing that he will not revoke is held to exclude all revocatory conditions, since he intends to expel that celebrated condition: unless it be revoked. Let the following be read on this matter, Vasquez opusc. de testam. cap. 2. Couar. 2. parte rubr. de testam. Antonius Gomez in 3. l. Tauri, Sylvester verbo testamentum 1. §. 12. With Bonacina de contract. disp. 3. quaest. 17. puncto 6. who adds that any form of words by which it is established that the testator earlier held his testament void suffices; nor is it necessary that he institute anew, even if he have used only a verbal revocation, although this is true only of royal law, as Vasquez, to be cited, has it.

Second, a testament is revoked by the breaking of the writing, of the seal, or of another necessary solemnity: but if some part be erased or cancelled with interlineations, the remainder of the testament is valid; and only that part can be called into doubt. So it is gathered ex leg. ad testam, §. si signa, ff. de testamentis, et leg. nostram, C. de testam. These, however, are modified, for if the illicit manner be proved in which such breaking or cancellation was made, or if the tabellion teach that the breaking and cancellation were made before his sign and do no harm, the testament is not invalidated, as is said in leg. 1. §. 1. ff. de iis, quae in testam. delentur. Likewise if there be two writings, of which only one is broken; the other still subsists; because although they are one in the thing, they are nevertheless two in proof; which Vasquez nevertheless so limits, that both writings must be equally principal; for if one be a transcript and transumpt held by the testator, although the Original remained with the Tabellion; this does not help, if the former be cut apart; so teaches Paulus Castr. in leg. nostram, C. de testam. quaest. ult. It must nevertheless be seen whether it was broken by the will of the testator himself, or against his pleasure.

Third, the first testament is invalidated by the making of a second, which is solemn and according to the disposition of law; which is true to that point, even if it were made before the Prince himself; who cannot by simple assistance take away the liberty of testating, which follows the dominion of goods until death; truly, if by special mandate he should declare such a testament irrevocable, such a mandate would have to be stood by; for as the laws can prohibit, for a just cause, the revocability of testaments, so also can the Prince.

Fourth, the first testament, though valid, can be revoked by a second less solemn one, provided it be completed with five witnesses, so long as those coming as heirs ab intestato be instituted in it: but that this may stand, three conditions are required. The first, that in the first testament some extraneous heir be named, for if one or more coming ab intestato were there, the testament still subsists. The second condition is, that those coming ab intestato be nearer heirs. The third is, that all those nearer heirs, coming ab intestato, be of the first grade, nor does any one of them alone suffice: which conditions are only of the common law; but by royal law it is otherwise determined, at least in nuncupative testaments; which are always equally solemn with the first ones, since they must have five, or at least three witnesses with the tabellion; so Vasquez loco citato.

What obligation is undertaken by Heirs instituted in a testament.

Since the heir is in the place of the testator, and in a certain way assumes his nature, it is certain that he is held to all the real debts to which the testator was held; for he who receives the real advantages ought also to undergo the real disadvantages, argument. leg. haeres in omne, ff. de acquirenda haereditate. but otherwise must be said of a personal right that the testator had to be paid; for this was extinguished together with his person.

It is conceded, however, by law that the Heir has a trimester period, within which time he can take possession of the inheritance or reject it, and within that time he ought not be molested by anyone: he is held, however, in the meantime to make an Inventory before a Notary, with the legatees and creditors present, if they wish to be present. So Bonacina above, with Sà, Reginald, and others cited. Yet if he omit to make it, not from fraud but from another just cause, he will be held to pay only as much as the inheritance can bear: otherwise if he negligently omit it fraudulently, he will be obliged even beyond the resources of the inheritance, as is had in leg. finali, C. de iureiurando.

The heir is held to pay not only debts, but also whatever legacies left by the testator; for by taking possession of the inheritance tacitly he is held to contract thus with the one testating; yet if the legacies were paid before death, although they were not cancelled in the testament, they are not to be paid leg. lucius, ff. de legatis. The mind of the testator, however, is to be examined, concerning whose intention, if it is established, the heir is held to observe it, leaving the ambiguity of the words; for all presumptions arising from words cease, once the will of the testator has been discovered.