PIOUS LEGATE. - A pious bequest is a modal bequest, in which the modus is a pious purpose of charity or religion.
I. NOTION
Through a process of involution that has led to confusing the p. l. [pious legacy] with the similar relationships to which it can give rise, this term takes on two other meanings in legal language, one expansive, the other restrictive. In a quite particular, very broad and generic meaning, by p. l. is understood every form of bequest having in view a pious purpose of religion or charity, including even the simple burden imposed by the testator on the heir or on the legatee for the same end. One even comes to attribute the designation of legata pia to every disposition of goods made ad pias causas, bringing the p. l. to be equivalent to the generic canonical concept of causa pia (cann. 1513, 1421, 1473, 1653 § 4) and of pia will, whose regulation is given, for the general part, in cann. 1513-1517 and, for the special part, in cann. 1489-94, 1544-51, including therein the sub-species of pious institution and pious foundation, fiduciary and fideicommissary dispositions, and donations mortis causa.
On the contrary, in a very strict sense, evidently restrictive, by p. l. is understood only the legacy for a purpose of religion, that is, burdened by a charge whose content is an act of worship (determined prayers, novenas, rosaries, celebration of Masses, sacred functions, religious feasts, etc.). In this sense, it also takes on the designation of legacy or disposition for the soul, whose typical and prevalent figure is given by the legacy of Masses in suffrage for the dead.
II. VARIOUS LEGAL AND HISTORICAL FORMS
Juridically as well as historically, the l. p. [pious legacy], taken in its broadest sense, is usually considered under three different aspects, according to the three different means which the testator may employ in pursuing a pious purpose: as a simple burden imposed by the testator on the heir or on the legatee (l. p. in the improper sense), as a true modal legacy (legacy in the proper sense), as an autonomous foundation. The true l. p. exists only in the second case.
1. As a simple burden
Here one should not speak of a legacy. Unlike what happens in the l. p. in the proper sense, here there is no specific differentiation of goods with respect to the pious purpose; the modus (the pious burden) is merely accessory to the institution of heir or to the legacy, that is, accessory to the principal disposition intended first of all to benefit the heir or the legatee; one cannot speak of self-absorption, nor is there necessarily required the determination of the person of the honoree who, by carrying out the pious purpose (by celebrating, for example, the Masses), remains advantaged by the burden. We are in the generic field of the pia voluntas (can. 1513 ff.).
2. As a true modal legacy
The pious testator sets apart from the mass of his patrimony a complex of individually identified goods and destines it to the pious purpose he intends, entrusting the execution of his will to a pre-existing legal subject, a natural or juridical person, in whose favor he makes the patrimonial attribution. The latter acquires ownership of such goods, but without the profit, since the execution of the modus absorbs entirely their economic utility, thereby determining the self-absorption of the legacy.
By virtue of the bond ad piam causam, the patrimonial entity thus differentiated, although inserted into the patrimony of a pre-existing subject, acquires a character of its own and its own autonomy even in relation to the other goods of the same subject to which it inheres, and assumes, as such, various forms and denominations. It appears, canonically, in the figure of the pious foundation, when the destination of the goods is in favor of ecclesiastical juridical persons with the burden, in perpetuum vel in diuturnum tempus, of employing the relevant revenues in the celebration of Masses, in functions of worship or in works of piety and charity (cann. 1544-51). The pious foundation differs from the l. p., of which it is a subspecies, in that in it the subject invested with the goods is always an ecclesiastical moral person, whereby the goods themselves become ecclesiastical in the strict sense; whereas in the simple l. p. the attribution may also be made to a lay subject, a natural or juridical person, the goods retaining the character of laity, as occurs, for example, in the lay chaplaincy. It differs furthermore by the character of durability which is proper to it by nature, whereas the l. p. may be either perpetual or temporary, according as the execution of the burden is exhausted in one or more numerically defined prestations, or commits to periodic prestations indefinitely or at least for a long time.
If the destination of the goods is made for a work of charity (for assistance to the poor, for pious works, hospitals, orphanages, shelters, etc.) the pious disposition assumes the name of charitable legacy or disposition for the poor; if it is directed, instead, to purposes of worship and religion (celebrations of Holy Masses, novenas, sacred octaves, religious functions and feasts, etc.), one has the legacy or disposition for the soul. The typical form of the legacy pro anima, representing the most conspicuous mass of today's pious dispositions, is, as has been seen, the legacy of Masses, also called foundation of Masses when the relevant burden weighs, in perpetuum vel in diuturnum tempus, on the assigned patrimonial entity (cann. 826 § 3, 1551 § 2). If the celebration of the Masses has been arranged with determination of the place (church, oratory, chapel, altar), one has the lay chaplaincy, as a subspecies of the l. p.; if it has been arranged with determination of the time, one will have the daily, monthly, quarterly chaplaincy, etc., or the anniversary.
Historical forms of the l. p. for purposes of charity and worship are: the praestimonium, when the legacy is instituted to support students directed toward the ecclesiastical career or others who dedicate themselves to the propagation of the faith; the praeceptoria or commenda (ordinum militarium), when it is directed to the benefit of religious or of lay knights dedicated to works of charity or to military service in defense of the faith; the salarium, if it is intended to pay the various lay servants of the church, the sacristans, the singers, the minor clergy, the chair-bearers, etc.
3. As an autonomous foundation
Instead of entrusting others to provide or to have provided for the fulfillment of the pious will, the testator may destine an autonomous patrimony for the foundation of a new juridical person which will have as its institutional end the fulfillment of the pious purpose. The pious disposition is exhausted, here, in the assignment of the patrimony that will form the economic substratum of the new entity, which will be such following the recognition of the competent authority. It falls within the genus of the pious bequest and differs from the l. p. and from the pious foundation by the declared will of the testator intended for the constitution of the causa pia as a juridical person. Belonging to this category are the ecclesiastical benefice, the simple benefice and the ecclesiastical chaplaincy (v. BENEFICIO ECCLESIASTICO; CAPPELLANIA).
III. JURIDICAL NATURE
Until now the doctrine had been unanimous in recognizing in the l. p. (taken in its proper sense) a true legacy sub modo, that is, a modal donation by act of last will. This theory is today contested by a current of thought which, assimilating and depersonalizing the l. p. into the single category of dispositions for the soul, classifies them as simple charges, that is, obligations of a personal character incumbent upon the legatee or heir and their successors in title. The Italian legislator seems to have been inspired by this current of thought in drafting the second paragraph of art. 629 of the Civil Code. There is insistence on seeing in the l. p. a disposition that is merely accessory to the institution of heir and to the legacy, and not an independent disposition, capable of a life of its own, even in the absence of other testamentary dispositions. It is further asserted that the concept of liberality, held to be essential to the modal legacy, is foreign to the l. p., since the burden is either directly in the interest of the testator alone, or, if it is for the benefit of a third party, it is such for that party only necessary while it is principaliter for the testator. These are arguments easily refuted which do not appear to undermine the traditional opinion. It seems, however, that a useful distinction must be drawn: there are pious dispositions (l. p. in the improper sense) which in practice amount to simple charges; but there are also pious dispositions (l. p. in the proper sense) which present the characteristics of true and proper modal legacies and which establish a true obligatory relationship between the person charged and the person honored.
It should be observed moreover that, sometimes, on the subject of the legal nature of pious dispositions, the determining transaction (act of the testator) is confused with the subsequent relationship, determining between the person charged and the third party advantaged by the charge, which is undoubtedly a true obligatory relationship. Thus, for example, it is understandable how the l. p. in the form of a pious foundation was defined by the canon legislator (can. 1544 § 2) as an innominate contract of the category do ut facias, once acceptance has taken place on the part of the legatee.
IV. LEGAL PERSONALITY
The question whether the l. p. [pious legacy] possesses the status of a juridical person is also debated. The affirmative solution, upheld in the past on the basis of Romano-canonical doctrine, must be regarded in large part as the fruit of the aforementioned confusion between the concept of the l. p. and the concepts of a pious cause and a pious institution (juridical persons). The fact that the l. p. appeared to be constituted by a portion of goods set apart from the disponer's estate and not assimilated, by virtue of the bond ad pias causas, into the patrimony of the subject of the attribution, led to considering the legacy itself, on the same footing as a pious institution, as an autonomous entity provided with its own personality. Moreover, it should be added that the phenomenon of self-absorption (especially when the person honored and the person doing the honoring were the same ecclesiastical body), by making the figure of the person honored prevail in the legatee, lent itself to regarding the latter, more than as an owner, as a simple executor of the pious will.
Today this thesis is by now abandoned, both for the l. p. in general and for the sub-species of pious foundation and lay chaplaincy. In reality these are groups of goods that are inserted into the patrimony of pre-existing subjects of law, who consequently acquire ownership of them, so that, while maintaining a certain autonomy by virtue of the special destination to which they are bound, they come to be the object and not the subject of law. It is well known, moreover, that autonomy does not conceptually imply personality, even though it is its necessary prerequisite. The fact is that in canon law the acceptance of the legacy by an ecclesiastical body (can. 1546) is considered a legitimate acquisition on the part of that body itself, so that the goods bequeathed fiunt stricto sensu ecclesiastica (can. 1497 § 1; Sacred Congregation of the Council, 27 April-2 May 1927, in AAS, 20 [1928], p. 363) and cannot be alienated except in the ways required for ecclesiastical goods (cann. 1530-33). It is precisely in the absence of personality that the principal characteristic lies which distinguishes l. p., including pious foundations and lay chaplaincies, from pious institutions, simple benefices and ecclesiastical chaplaincies.
V. CANONICAL LEGISLATION
Since according to the CIC the l. p. is considered a subspecies of pious wills and appears preferably in the form of a pious foundation, the norms of cann. 1513-17 as well as the subsequent ones of cann. 1544-51 must be applied to it.
Likewise the capacity of subjects to dispose of their goods for a pious purpose is determined on the basis of natural and canonical law alone (can. 1513 § 1). Therefore every liberality for a pious purpose is considered valid, provided the disposer is not barred from it by natural law (those incapable of a human and free act, can. 88 § 3) or by ecclesiastical law (regulars after solemn vows, cann. 581-82; novices during the novitiate, can. 568). Consequently, the limitations regarding the capacity to make a will and to donate imposed by civil law (art. 591 Cod. civ.) are of no relevance.
As for the form, the modalities required in this regard by the civil laws are considered ad probationem, not ad validitatem. Their observance is indeed prescribed, as far as possible, but even in their absence the liberality for a pious purpose is declared equally valid, even if lacking form, so that the defaulting heirs must be admonished of the duty incumbent upon them (can. 1513 § 2; cf. c. 4, X, 3, 26 with the attached gloss " nudis verbis ").
It is prescribed, moreover, that the fulfillment of l. p. and pious wills be carried out diligentissime, with regard both to the conferring of the performances due and to the administration and distribution of the goods bequeathed (can. 1514). Executors by law of every pious will are the Ordinaries, who exercise the consequent right of supervision by means of a control visit and by exacting an exact accounting from the executors appointed by them. Any clauses contrary to this right, contained in the act of last will, are considered as not appended, that is vitiantur sed non vitiant (cann. 1515-47). Against those in default appropriate sanctions and penalties are provided (can. 2348).
Clerics and religious who have received goods by way of trust (which occurs, normally, whenever they are appointed legatees for a pious purpose) are bound to inform their own Ordinary, who will provide for the placement of the goods and the faithful execution of the trust (cann. 1515, 1516).
Every reduction or commutation of the pious charges burdening the legacies is reserved to the Holy See, unless the disposer has explicitly invested the Ordinary with such a faculty, or the measure has become indispensable due to blameless diminution of the revenues or due to the impossibility, in any case supervening, of executing the pious will. Exception is made, in every case, for the reduction of Mass charges, which remains of the exclusive competence of the Holy See (cann. 1517, 1551).
The revenues of an l. p. directed to subsidize the instruction of clerics are understood to be devolvable also in favor of seminarians not yet tonsured (can. 1362). Cases concerning disputes in matters of l. p. have as their necessary forum that of the Ordinary of the testator (can. 1360 n. 4).
VI. THE PIOUS LEGATE IN ITALIAN LEGISLATION
In the matter of pious legacies and pious intentions, pre-Concordat Italian law is inspired, as in other sectors, by a policy of eversion. With the law of 15 Aug. 1867 no. 3848, art. 1 no. 6, in the general suppression of all pre-existing institutions and foundations for purposes of worship "with a character of perpetuity," there had been expressly included "pious legacies for an object of worship" and pious foundations "even when not established under an ecclesiastical title." Since, however, the respective charges had been preserved as a burden upon those who had title to claim the property of the individual endowments (art. 5, law 1867, no. 3848), the suppression in reality had the character of a transformation of the nature of the charges, which from real became purely personal.
In order to prevent the rebirth of such institutions, the Civil Code of 1865, in arts. 833 and 1075, declared null and void legacies and in general pious dispositions ordered for the purpose of instituting or endowing "simple benefices, lay chaplaincies or other similar foundations." Moreover, in art. 831 dispositions for the soul (thus including pious legacies) were declared null and void when "expressed generically."
On the other hand, dispositions in favor of the poor were declared valid "even if expressed generically" (art. 832), and their property was devolved in favor of the local institute of public charity (formerly the Congregazione di carità, today the Ente comunale di assistenza, law of 3 June 1937, no. 847).
Even before the recent codification, the exceptional prohibitions of arts. 833 and 1075 of the 1865 Code were held to be abrogated, by reason of incompatibility, by art. 29 d) of the Concordat, in which it is stated that "foundations of worship of any kind are admitted, provided it be established that they respond to the religious needs of the population and that no financial burden upon the State derives therefrom"; nor could the application of art. 1 of the law of 15 Aug. 1867 take place after the cited article of the Concordat had expressly provided for the recognizability also of "foundations already existing in fact." In confirmation of all this, the Code of 1942 does not reproduce arts. 833 and 1075 of the old Code, nor does it reproduce their content.
In current law, therefore, nothing stands in the way of the validity of a pious legacy directed to bringing into being a pious foundation of any kind. The eventual granting of legal personality is, however, subject to the two conditions of the already cited art. 29 of the Concordat (cf. arts. 4-5 of the law of 27 May 1929 no. 848; art. 17 of the Regulation of 2 Dec. 1929 no. 2262).
Furthermore, by virtue of art. 629, which replaced art. 831 of the old Code, dispositions for the soul (legacies of worship) are declared valid "whenever the property is determined or the sum to be employed for that purpose can be determined." The determination of the person charged is provided for by the law itself, which establishes, to avoid uncertainties, that dispositions in favor of the soul, however formulated, "are considered as a charge upon the heir or the legatee." It has been observed that this declaration, generally regarded as an explicit definition on the matter, is often in conflict with the true juridical nature of the dispositions themselves.
For the fulfillment of the pious charge it is provided that "any interested party" may act, who may also, in case of non-fulfillment, seek the rescission of the testamentary disposition (art. 629, 648); a very broad formula and one such as to include, in our view, also the ordinary diocesan authority when it is a question of pious legacies and foundations accepted in accordance with can. 1546. There remains, however, the principle that if there should be entirely no interested party to request fulfillment, the charge remains civilly unenforceable, the relationship retaining the character of a natural obligation. In any case, the testator is given the power to designate a person to attend to the execution of the disposition, whether or not there is, in the act of pious disposition, a designation of the person of the party interested in fulfillment (art. 629).
On the other hand, pious dispositions that are not for worship — that is, pious legacies and bequests in general in favor of entities or natural persons for works of charity and beneficence — are subject to the ordinary civil-law discipline. It should be observed only that "dispositions in favor of the poor, and other similar ones, expressed generically," that is, without determination of the use or of the beneficiary institute, or where the indicated executor cannot or will not accept, "are understood to be made in favor of the poor of the place," and the relative property is devolved to the Ente comunale di assistenza (art. 630).
A pious disposition, of whatever kind, cannot burden the share of the forced heirs (art. 549). The entity in favor of which it is made must be recognized: otherwise, the disposition remains ineffective if, within one year from the day on which the will became enforceable, no application for recognition has been submitted (art. 600).
Bibliography16 works
Zaccaria da San Mauro