« Jacques Lefevre d'Etaples Legacies Legate »



(Latin Legata).


In its most restricted sense, by a pious legacy or bequest (legatum pium) is understood, the assigning, by a last will, of a particular thing forming part of an estate, to a church or an ecclesiastical institution. It differs from a testament in favour of pious works (testamentum ad pias causas) in this, that in a testament the favoured institution is made the true heir of the testator, continuing as it were his person. Moreover, a testament deals with the whole property, the patrimony of the testator. It results from this that a pious legacy or bequest need not necessarily be made the body of a will; it can be inserted in a codicil. A pious bequest differs likewise from a "donatio mortis causa", which is a contract, whereas thc bequest is made by a unilateral act. It is distinguished, finally, from a foundation, which can be made during life as well as by provision in a will, and which always imposes on the favoured establishment obligations, either perpetual or of fairly long duration. A legacy may be but is not necessarily a foundation.


Natural law, no less than Divine, ordains that the will of the faithful, bequeathing part of their wealth to the Church should be respected (Instruction of Propaganda, 1807, in "Collectanea S.C. de P. F.", I, Rome, 1907, n. 689). The Church was established by God as a necessary and perfect society, since its object is to lead men to their last end, consequently, it can uphold its right to acquire all the means necessary to realize the object for which God instituted it. Being an external and visible society, it must be able to dispose of temporal goods for the needs of Divine service, the support of its ministers, the propagation of the Faith, the care of the poor, etc. Therefore, it may acquire these goods by all legitimate means, and among these means are included pious bequests or legacies. Natural right demands that the goods of parents dying intestate should pass to their children, and in many cases it is a duty for parents to leave part of their patrimony to their children; canon law recognizes and approves of this duty. But there is no serious reason for depriving parents of the right to dispose by will, for a pious purpose, of those goods that are at their free disposal as long as they are alive. While profitable to the Church, pious bequests are not less so to the donors "for the salvation of their souls", in the words of the usual testamentary formula of the Middle Ages (Fournier, "Les officialitÈs au moyen âge", Paris, 1880, p. 87). The Council of Trent (Sess. XXVI, Decr. de Purgatorio) declares that pious foundations are a means of relieving the sufferings of purgatory. The First Provincial Council of Halifax applies to pious bequests those words of the Gospel: "Make unto you friends of the Mammon of iniquity; that when you shall fail, they may receive you into everlasting dwellings" (Luke xvi, 9; "Collectio Lacensis", III, Freiburg, 1875, 746). Pious bequests are a means by which generous souls can continue, after their decease, their good works, and provide for the future of the institutions that they have founded or enriched. Those who have omitted during life to fulfill the precept of charity can find therein a way of repairing their negligence ("First Provincial Council of Westminster", 1852, XXV, II; "Collectio Lacensis", III, 942). Those, finally, who, owing to daily cares and anxieties, found it impossible to be bountiful during life, may yet, if only at the hour of death, cooperate in the relief of the unfortunate, and assure their neighbour the spiritual advantages of Divine service.


The charity of the first Christians led them to despoil themselves while alive of their superfluous goods; consequently, mention is rarely made of pious legacies before the time of Constantine. After that emperor's conversion they became more prominent, especially after the law of the year 321 allowed churches to receive all kinds of legacies, and granted them the "factio testamenti passiva", i.e. the right of being made heirs (Theodosian Code, XVI, II, lit. iv). Authors are not agreed on the import of a law of Theodosius dated June, 390, forbidding deaconesses, who were widows and had children, to dispose of their goods in favour of churches or the poor (ibid. xxvii). Many authors consider it an important restriction of the right recognized by Constantine as belonging to the churches (Fourneret, "Les biens d'Eglise après les Èdits de pacification; Ressources dont l'Eglise disposa pour reconstruire son patrimoine", Paris, 1902, p. 84). Others see in it only a means of protecting, against the abuse of maternal power, the rights of the children to the succession of their parents (Knecht, "System des Justinianischen Kirchenvermögensrechtes", Stuttgart, 1905, 75-76). In any case, Emperor Marcian restored the right to the churches in 485 (Justinian Code, I, II, xiii). Among the Teutonic peoples, testamentary liberalities properly so-called seem to have been unknown, but they had an arrangement resembling the "donatio mortis causa" of the Romans, i.e., the "cessiones post obitum", donations which the donor bound himself not to retract, but which took effect only on his death.

In virtue of the Teutonic principle of the personality of law, the inhabitants whom the Teutons found settled in the old provinces of the empire they conquered could continue to follow the Roman law. In this way the power to bequeath to pious establishments was introduced among the Visigoths, Burgundians, and Bavarians, while in Gaul pious bequests were tolerated in fact before being authorized by law (Loening, "Geschichte des deutschen Kirchenrechts", II, Strasburg, 1878, 655). Several synods of the Frankish period even declare the validity of testaments, especially those of ecclesiastics, in which the formalities prescribed by the civil law had not been observed (Bondroit, "De capacitate possidendi Ecclesiæ ætate merovingica", Louvain, 1900, 87 and 105). (See DONATIONS.)

The bishops retained in the Middle Ages the right of supervising the execution of pious bequests, which had been recognized by the Justinian Code (I, III, xlv). This right was even extended, and in several regions the ecclesiastical tribunal judged of the validity of wills and supervised their execution (Fournier, op. cit., 87; Friedberg, "De finium inter Ecclesiam et Civitatem regundorum judicio quid medii ævi doctores statuerint", Leipzig, 1861, 124). It was in virtue of this right that Alexander III determined the conditions for the validity of wills in non-ecclesiastical matters (c. x., "De testamentis et ultimis voluntatibus", X; III, xxvi. See Wernz, "Jus Decretalium", III, Rome, 1901, 309). This same pope ordained, following the example of St. Gregory, that the ecclesiastical judge was to decide the validity of pious bequests not in accordance with the provisions of the Roman law but with the decrees of canon law (cc. iv, xi, "De testamentis et ultimis voluntatibus", X, III, xxvi).

The practice of pious bequests was so common in the Middle Ages that it seemed impobable that any person would have dispensed himself from it. This was the origin of the right of bishops in certain places, particularly in France and Southern Italy, to dispose, in favour of pious objects, of part of the goods of an intestate deceased person (Fournier, op. cit., 89). The generosity of the faithful built and endowed those wonders of art, the monasteries and churches as well as the many charitable institutions that were the glory of the medieval Church, and that the official charity of the State has succeeded neither in rivalling nor in replacing. It was not until the close of the medieval period that the civil power began to restrict the acquisition of property by religious mortmain. In modern times, even in Catholic countries, wills were withdrawn from the judicial authority of the Church, and the civil power finally deprived the latter of the right to adjudicate even on testamentary questions relating to pious bequests.


The Church reserves to itself, even now, an exclusive authority in the matter of pious wills and legacies; it has its own legislation, the Roman law modified on several points by canon law, and its ecclesiastical tribunals to examine the questions connected therewith.

(1) Besides persons who by natural law or in virtue of the enactments of Roman law are incapable of making a will, the Church refuses to accept the pious bequests of usurers (c. ii, De usuris, in VI°, V, 5), of heretics and their accomplices (c. xiii, De hereticis, X, V, 7), and of those who are guilty of attacks on the cardinals (c. v, De pœnis, in VI°, V, 9). In practice, the Church refuses at the present time, to accept the bequests of sinners who die impenitent, and especially of usurers, in order not to be enriched by their ill-gotten goods (Santi, "Prælectiones juris canonici", III, Rome, 1898, 224-25). Religious who make solemn vows of profession are permitted to make wills only during the two months preceding their solemn profession; other religious must conform to the rules of their congregation. The rules (normœ) drawn up by the Congregation of Bishops and Regulars for the approbation of institutes bound by simple vows (Rome, 1901) forbid the making of wills after religious profession without the permission of the Holy See or, in case of urgency, without the authorization of the bishop or the superiors (Art.. 120 and 122. See Vermeersch, "De religiosis", I, Bruges, 1902, 148).

(2) It is not alone bequests made to churches that enjoy the prerogatives established by canon law, but also those made to monasteries, religious houses, and all institutions, whether purely religious or of a charitable character subject to the direction of religious authorities. However, certain religious orders, either because they practise poverty in a stricter manner, or in virtue of their constitution, have only a restricted right to acquire property by legacy or will (Santi, op. cit., III, 238-9; Wernz, op. cit., III, 322).

(3) The heirs of the testator are obliged to execute pious bequests, even if they have not been made in accordance with the formalities prescribed under penalty of nullity by the civil law, provided canon law considers them to have been made validly. The State has an incontestable right to prescribe the formalities requisite for the validity of wills in all matters falling within its jurisdiction, but pious legacies and bequests for pious purposes are under the exclusive control of the Church. This principle was clearly enunciated by Alexander III in the decretal "Relatum" (c. xi, De testamentis et ultimis voluntatibus, X, III, xxvi). It is true this decretal was addressed to the judges of Velletri, a town in the Papal States, but its force cannot be restricted solely to the territory under the temporal power of the pope, and the insertion of the decretal in the "Corpus Juris", or general law of the Church, deprives the objection of all force. It has been urged that a contrary custom had abrogated this canonical enactment, and that, moreover, only natural equity and the favour shown by the Church to pious bequests have caused pious legacies made with a neglect of solemn formalities to be considered valid. The constant practice of the Holy See proves that this argument is not conclusive. On 10 January, 1901, the Sacred Penitentiaria declared that, as a general rule, it considers valid and binding in conscience pious bequests which the civil law declares void on account of the omission of extrinsic formalities prescribed by the civil law. Nevertheless, in such a case the ecclesiastical authorities are generally disposed to come to terms with the heirs ("Acta Sanctiæ Sedis", XXXIV, Rome, 1902, 384). (See, in the same sense, the decrees of the S. C. C. ‘‘in caus. Arimin.", 13 September, 1854; "in caus. Hortana", 29 February, 1855; and reply of the Penitentiaria, 23 June, 1844.)

According to the common opinion of theologians, for a pious bequest to be obligatory in conscience it suffices that the wish of the testator be well established, e.g. by a holograph or a writing merely signed by the testator, by a verbal declaration made to the heir himself or before two witnesses (a single testimony other than that of the heir would be insufficient). If it be urged that the testator has revoked his bequest, the fact must be proved The Congregation of the Council decided, 16 March, 1900, that a writing containing erasures, which is only a draft of a will, is not a sufficient proof that the testator wished to revoke a previous will ("Acta Sanctæ Sedis", XXXII, Rome, 1900-01, 202). The contrary opinion is now held only by a few authorities (Carrière, "De contractibus", n. 586, Louvain, 1846; D'Annibale, "Summula theologiæ moralis", II n 339, Rome, 1892; Boudinhon in "Le Canoniste contemporain", XXIV, Paris, 1901, 734). By Roman law, if a testator knowingly bequeathes a thing 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 may 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 matter (Santi, op. cit., III, 242--245). This provision of Roman law being not generally known in our day, it is lawful to presume that the testator made a mistake, and that 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 legitima" is greater than it was in the Roman law, it may he presumed that the Church recognizes the ruling of our codes in the matter. All bequests exceeding the amount which the civil law allows to be disposed of freely by the testator may therefore be reduced. The provisions of the Corpus Juris (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 testator to a definite 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 ultimis voluntatibus", X, III, xxvi; Council of Trent, Sess. xxii, "De reformatione", c. viii). He is also the judge of the first instance in testamentary cases submittcd 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 such change only for grave reasons (c. ii, "De religiosis domibus III, 11, in "Clem."). The Council of Trent (Sess, XXII, De reformatione, c. vi) recognizes in bishops only the right of executing a change in the will 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. Propaganda 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 cases where it is impossible to carry out the testator's wish; but it obliges them in each case to obtain a subsequent approval of their act by the Holy See (Instruction of 1807, in "Collectanea", I, n. 689). The Constitution "Romanos pontifices" of 8 May, 1881, lays 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).


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 derived from church property ought to he devoted to religious or charitable purposes. If they have not been so disposed of during his lifetime by the person who was in receipt of them, after his death they should be distributed either as canonical legislation enacts or as a pious bequest. During the first centuries of the Church, when bishops alone had the administration 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 promotion to the episcopacy, excepting, of course, their own patrimonial estate (Novellæ, CXXXI, c. xiii). The Third Council of Carthage (397) had already legislated in a similar sense with regard to ecelesiastics (Bruns, "Canones apostolorum et conciliorum veterum selecti", I, Berlin, 1839, 134). Moreover, the Theodosian Code assigned to the Church the goods of clerics dying intestate, and not leaving children or relatives (V, III, lib. i). These regulations were confirmed by the popes and the councils (see Decretum Gratiani, II, c. Xii, q. 5, "An liceat clericis testamenta conficere"). But, as early as the sixth century, we learn from the decrees of councils that abuses had already crept in: ecclesiastics and even bishops were attempting to seize ecclesiastical property on the death of their confrères (Decret. Gratian, loc. cit., q. 2); later, it was the turn of the laity; emperors, princes, lawyers, and patrons claimed a right to the spoils (Jus spolii or exuviarum).

To remedy this state of affairs, the reforming popes of the eleventh and twelfth centuries forced the emperors 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 ecelesiastics; the latter were free to dispose of their own patrimony, the "peculium patrimoniale" as canonists call it, i. e., all goods which ecclesiastics acquired by inheritance, will, or any kind of contract soever, but independently of the ecclesiastical character. They might dispose likewise of the "peculium industriale" or "quasi patrimioniale", i.e. the property acquired by their own personal activity. To this was likened the "peculium parsimoniale", or that portion of the revenues coming from ecclesiastical benefices, which the beneficiary might reasonably have spent on himself, but which he economized (Santi, op. cit., III, 210). But he was forbidden to dispose of the "peculium beneficiale", the superfluous revenue of the benefices he 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 ecclesiastical institutions, or even, as a reward for services rendered, to persons, whether 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 observed; the "spolium" remained customary among ecelesiastics, especially abbots of monasteries, chapters, and bishops (c. xl, "De electione in VI°, 6; c. ix, "De officio ordinarii" in VI°, I, 16 c i De excessibus prælatorum in Clem. V, vi) The popes themselves saw in it a means of increasing their revenues. As early as the fourteenth century they reserved to the Holy See that portion of the property of ecclesiastics which the latter could not dispose of freely, with certain exceptions. These fiscal measures reached their highest limits during the Western Schism. They met with vigorous opposition in France, where the kings refused 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 the Constitution of Pius IV "Grave nobis", 26 May, 1560 in "Bullarum amplissima collectio", ed. Cocquelines, IV, ii, I8; that of Pius V "Romani pontificis providentia", 30 August, 1587, Ibidem, 394; and of Gregory XIII, ‘Officii", 21 January, 1577, Ibidem, IV, iii, 330). On 19 June, 1817, Pius VIII declared that Propaganda was entitled to all revenue of the "spolium" (Collectanea, I, n. 724). On the other hand, even when the legislation of Alexander III was introduced, it was not always enforced in the same way; in some places the ecclesiasties could dispose of their "peculium beneficiale" in favour of pious purposes; in others they were granted full testamentary liberty, provided they made a legacy in favour of pious objects, or else paid a certain sum to the bishop who allowed them to make the will. These practices, together with the difficulty of distinguishing, in the inheritance of an ecclesiastic, the amount of the "patrimonium beneficiale", eventually left ecclesiastics testamentary freedom.

However, the canonical legislation is yet substantially unchanged; ecclesiastics are even now obliged to bequeath for pious purposes the superfluous part of the revenues from their benefices which they have not distributed during their life. This principle, recalled by the Council of Trent (Sess. XXV, De reformatione, c. i), is reasserted in most provincial councils of the nineteenth century. It is commonly admitted that it imposes no obligation of justice, but merely one based on ecclesiastical precept (Santi, op. cit., III, 211; Wernz, op. cit., III, 210--11). This obligation does not exist in countries where there are no benefices, or where benefices strictly so called are notoriously insufficient for the support of the clergy who enjoy them. Under these circumstances, pious bequests are earnestly recommended to ecclesiastics, but they are never obligatory in conscience. For the special rules regulating the wills of cardinals, see Santi, op. cit., III, 227--34. The obligations imposed on ecclesiastics, needless to say, are binding on their heirs in case they die intestate. Sometimes this matter is decided by local custom. The Provincial Councils of Vienna (1858) and of Prague (1860) decree that the estate of an ecclesiastic deceased intestate is to be divided into three parts: one for the Church, one for the poor, and the third for the relatives of the deceased. If the deceased was not possessed of any ecclesiastical benefices, only one-third of the estate is subject to the above rule, and that is to be distributed among the needy, but should the heirs of the deceased belong to that class, said portion may be given to them.

See the commentaries of the canonists on the Third Book of the Decretals, titles xxv, xxvi, and xxvii; SCHMALZGRUEBER, Jus canonicum universum, III, ii (Rome, 1844), 462-607; REIFFENSTUEL, Jus canonicum universum, IV (Paris, 1867), 362--567; SANTI, Prœlectiones juris cononici, III (Rome, 1897), 209--247; WERNZ, Jus decretalium, III (Rome, 1901), 199--218, 306--327; SÄGMÜLLER, Lehrbuch des katholischen Kirchenrechts (Freiburg, 1904), 764, 787--92; THOMASSINUS, Vetus et nova ecclesiœ disciplina, pt. III, bk. II (Paris, 1691), cc. xxxviii--lvii; WAGNER, Dissertatio de testamento ad pias causas (Leipzig, 1735); THOMAS, Das kanonische Testament (Leipzig, 1897); WOLFF VON GLANVELL, Die letzwillige Verfügungen nach gemeinem Kirchlichen Rechte (Paderborn, 1900); FÉNELON, Les fondations et les Ètablissements ecclÈsiastiques (Paris, 1902); SCHMIDT, Thesaurus juris ecclesiastici, IV (Heidelberg, 1727), 382--440; SENTIS, De jure testamentorum a clericis secularibus ordinandorum (Bonn, 1862); EISENBERG, Das Spolienrecht am Nachlass der Geistlichen (Marburg, 1886); HOLLWECK, Das Testament der Geistlichen nach kirclichen und burgerlichen Recht (Mainz, 1901); SAMARAN, La jurisprudence pontificale en matière de drot de dÈpouille (jus spolii) dans la seconde moitiÈ du XIVe siècle in MÈlanges d'archÈologie et d'histoire (Ecole française de Rome) XXII, (Paris, 1902), 141 sq.


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