LEGATO PIO. — The l. p. is a modal legacy in which the modus is a pious purpose of charity or religion.
SUMMARY:
I. Definition
II. Various juridical and historical forms
III. Juridical nature
IV. Juridical personality
V. Canon legislation
VI. The l. p. in Italian legislation.I. NOTION
Through an involutive process that has led to the confusion of the l. p. with the similar relations to which it may give rise, this term assumes two further meanings in juridical language, one broader and the other more restrictive. In a very particular, very broad and generic sense, l. p. means every form of bequest aimed at a pious purpose of religion or charity, including the simple obligation imposed by the testator upon the heir or legatee for the same end. Indeed, the designation legata pia is even attributed to every disposition of property made ad pias causas, thus making the l. p. equivalent to the generic canonical concept of causa pia (cann. 1513, 1421, 1473, 1653 § 4) and of pia will, the general regulation of which is given in cann. 1513-1517 and the special regulation in cann. 1489-94, 1544-51, including the subcategories of institution and fondazione pia, fiduciary and fideicommissary dispositions, and donations mortis causa.Conversely, in the strictest, clearly restrictive sense, l. p. means only the bequest for a religious purpose, that is, one burdened with an obligation whose content is an act of worship (specified prayers, novenas, rosaries, celebration of Masses, sacred functions, religious feasts, etc.). In this sense, it also bears the name of bequest or disposition for the soul, the typical and predominant form of which is the bequest of Masses in suffrage for the departed.
II. VARIOUS LEGAL AND HISTORICAL FORMS
Legally as well as historically, the l. p., taken in its broadest sense, is customarily considered under three different aspects, according to the three different means available to the disposer in pursuing a pious purpose: as a simple charge imposed by the testator upon the heir or legatee (l. p. in the improper sense), as a true modal legacy (legacy in the proper sense), and as an autonomous foundation. A true l. p. exists only in the second case.1. As a simple charge. - Here one should not speak of a legacy. Unlike what occurs in the l. p. in the proper sense, there is here no specific differentiation of assets in relation to the pious purpose; the modus (the pious charge) is merely accessory to the institution of an heir or to the legacy, that is, accessory to the principal disposition intended first of all to benefit the heir or legatee. One cannot speak of self-absorption, nor is it necessarily required that the person charged, who, by carrying out the pious purpose (by celebrating, for example, the Masses), is benefited by the burden, be specified. We are in the general field of pia voluntas (can. 1513 ff.).
2. As a true modal legacy. - The pious disposer segregates from the mass of his estate a set of individually specified assets and assigns it to the pious purpose he intends, entrusting the execution of his will to a pre-existing subject of law, a natural or juridical person, in whose favour he makes the patrimonial assignment. This person acquires ownership of those assets, but without their benefit, since the execution of the modus wholly absorbs their economic utility, thereby bringing about the self-absorption of the legacy.
By virtue of the bond ad piam causam, the patrimonial entity thus differentiated, although incorporated into the estate of a pre-existing subject, acquires its own character and autonomy even in relation to the other assets of the subject to which it pertains, and as such assumes various forms and designations. Canonically, it appears in the form of the pious foundation when the assets are assigned to ecclesiastical juridical persons with the charge, in perpetuum vel in diuturnum tempus, of employing the corresponding revenues for the celebration of Masses, acts of worship, or works of piety and charity (cann. 1544-51). The pious foundation differs from the l. p., of which it is a sub-species, in that the subject invested with the assets is always an ecclesiastical moral person, so that the assets themselves become ecclesiastical in the strict sense; whereas in the simple l. p. the assignment may also be made to a lay subject, a natural or juridical person, the assets retaining their lay character, as occurs, for example, in the lay chaplaincy. It also differs by reason of the character of durability proper to it by nature, whereas the l. p. may be either perpetual or temporary, according as the fulfilment of the charge is exhausted in one or more numerically defined performances, or entails periodic performances indefinitely or at least for a long period.
If the assets are assigned to a charitable work (for assistance to the poor, pious works, hospitals, orphanages, recreational institutions, etc.), the pious disposition takes the name of charitable legacy or disposition for the poor; if, on the other hand, it is directed toward purposes of worship and religion (celebrations of Holy Masses, novenas, sacred octaves, religious services and feasts, etc.), there is a legacy or disposition for the soul. The typical form of the legacy pro anima, representing the largest body of present-day pious dispositions, is, as has been seen, the Mass legacy, also called a Mass foundation when the corresponding charge rests, in perpetuum vel in diuturnum tempus, upon the patrimonial entity assigned (cann. 826 § 3, 1551 § 2). If the celebration of Masses has been ordered with specification of the place (church, oratory, chapel, altar), there is a lay chaplaincy, as a sub-species of the l. p.; if it has been ordered with specification of the time, there will be a daily, monthly, quarterly, etc. chaplaincy, or an anniversary.
Historical forms of the l. p. for charitable and worship purposes are: the praestimonium, when the legacy is established for the support of students directed toward an ecclesiastical career or of others who devote themselves to the propagation of the faith; the praeceptoria or commenda (ordinum militarium), when it is intended for the benefit of religious or lay knights devoted to works of charity or to military service in defence of the faith; the salarium, if it is intended to pay the various lay servants of the church, sacristans, singers, lesser clergy, chair-bearers, etc.
3. As an autonomous foundation. — Instead of charging others with providing, or having provision made, for the fulfilment of the pious will, the testator may assign an autonomous patrimony for the foundation of a new juridical person whose institutional purpose will be the fulfilment of the pious end. Here the pious disposition is exhausted in the assignment of the patrimony that will constitute the economic substratum of the new entity, which will become such upon recognition by the competent authority. It belongs to the category of pious bequests and differs from the l. p. and the pious foundation by the declared intention of the disposer to establish the causa pia as a juridical person. This category includes the ecclesiastical benefice, the simple benefice, and the ecclesiastical chaplaincy (v. BENEFICIO ECCLESIASTICO; CAPPELLANIA).
III. LEGAL NATURE
Until now, doctrine had been unanimous in recognizing in the pious legacy (l. p., properly understood) a true sub modo legacy, that is, a modal donation by an act of last will. This theory is now challenged by a school of thought which, assimilating and depersonalizing pious legacies within the single category of dispositions for the soul, classifies them as mere charges, that is, obligations of a personal nature imposed upon the legatee or heir and their successors in title. The Italian legislature seems to have been inspired by this school of thought in enacting the second paragraph of art. 629 of the Civil Code. There is an insistence on viewing the pious legacy as a merely accessory disposition to the institution of the heir and to the legacy, and not as an independent disposition, capable of existing in its own right even in the absence of other testamentary dispositions. It is further asserted that the concept of liberality, deemed essential to the modal legacy, is absent from the pious legacy, since the burden either directly serves the interest of the disposer alone or, if it benefits a third party, does so for that person only necessarie, whereas it serves the testator principaliter. These are arguments that can easily be refuted and do not appear to undermine the traditional view. It nevertheless seems useful to distinguish between them: there are pious dispositions (pious legacies in the improper sense) that in practice amount to mere charges; but there are also pious dispositions (pious legacies in the proper sense) that display the characteristics of genuine modal legacies and establish a true obligatory relationship between the person charged and the person benefited.It should also be observed that, at times, in discussing the legal nature of pious dispositions, the determining juridical act (the act of the disposer) is confused with the subsequent relationship, established between the person charged and the third party benefited by the charge, which is unquestionably a true obligatory relationship. Thus, for example, it can be understood how the pious legacy in the form of a pious foundation was defined by the canonical legislator (can. 1544 § 2) as an unnamed contract in the do ut facias category, once acceptance by the legatee has taken place.
IV. JURIDICAL PERSONALITY
The question whether the pious legacy possesses the status of a juridical person is also disputed. The affirmative solution, formerly upheld on the basis of Romano-canonical doctrine, must be regarded largely as the result of the aforementioned confusion between the concept of the pious legacy and the concepts of cause and pious institution (juridical persons). The fact that the pious legacy consisted of a portion of property differentiated from the mass of the disposer’s assets and not assimilated, by virtue of the bond ad pias causas, into the patrimony of the subject receiving the attribution, led to the legacy itself being regarded, like the pious institution, as an autonomous entity endowed with its own personality. Moreover, the phenomenon of self-absorption (especially when the donor and the beneficiary were the same ecclesiastical entity), by making the figure of the beneficiary prevail in the legatee, lent itself to having the latter regarded, rather than as an owner, as a mere executor of the pious intention.Today this thesis has been abandoned, both with regard to the pious legacy in general and with regard to the subcategories of pious foundation and lay chaplaincy. In reality, these are groups of assets incorporated into the patrimony of pre-existing subjects of law, which consequently acquire ownership thereof; thus, although retaining a certain autonomy by virtue of the special purpose to which they are bound, they become the object, and not the subject, of rights. It is well known, moreover, that autonomy does not conceptually imply personality, although it is its necessary prerequisite. The fact is that in canon law the acceptance of a legacy by an ecclesiastical entity (can. 1546) is regarded as a lawful acquisition by the entity itself, so that the bequeathed assets fiunt stricto sensu ecclesiastica (can. 1497 § 1; S. Congregazione Concilio 27 Apr.–2 May 1927, in AAS, 20 [1928], p. 363) and may not be alienated except in the manner required for ecclesiastical goods (cann. 1530–33). It is precisely in the lack of personality that the principal characteristic distinguishing pious legacies, including pious foundations and lay chaplaincies, from pious institutions, simple benefices, and ecclesiastical chaplaincies is found.
V. CANONICAL LEGISLATION
Since according to the CIC the l. p. is considered a subspecies of pious dispositions and occurs preferably in the form of a pious foundation, both the norms of canons 1513–17 and those of the subsequent canons 1544–51 are to be applied to II.The capacity of persons to dispose of their own property for a pious purpose is determined solely on the basis of natural and canon law (can. 1513 § 1). Every gift for a pious purpose is therefore considered valid, provided that the donor is not incapacitated from making 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 restrictions imposed by civil law concerning the capacity to make wills and donations are irrelevant (art. 591 Civil Code).
As regards form, the formalities required in this matter by civil laws are considered ad probationem, not ad validitatem. Their observance is indeed prescribed insofar as possible, but even in their absence, a gift for a pious purpose is declared equally valid, although informal; hence heirs who fail to comply must be admonished of the duty incumbent upon them (can. 1513 § 2; cf. c. 4, X, 3, 26, with the appended gloss « nudis verbis »).
It is also prescribed that the fulfillment of pious legacies and dispositions be carried out diligentissime, both with regard to the provision of the obligations due and to the administration and disbursement of the property bequeathed (can. 1514). The Ordinaries are the executors by right of every pious disposition; they exercise the consequent right of supervision by means of inspections and by requiring an exact account from the executors whom they have appointed. Any clauses contrary to this right contained in the act of last will are considered as though they had not been inserted, that is, vitiantur sed non vitiant (cann. 1515–47). Appropriate sanctions and penalties are provided for those who fail to comply (can. 2348).
Clerics and religious who have received property through a fiduciary arrangement (as normally occurs whenever they are appointed legatees for a pious purpose) are obliged to inform their own Ordinary, who will provide for the placement of the property and the faithful execution of the trust (cann. 1515, 1516).
Any reduction or commutation of the pious obligations attached to legacies is reserved to the Holy See, unless the donor has explicitly invested the Ordinary with this power, or the measure has become indispensable because of an inculpable decrease in income or because of the impossibility, however arising subsequently, of carrying out the pious disposition. An exception is made in every case for the reduction of Mass obligations, which remains exclusively within the competence of the Holy See (cann. 1517, 1551).
The income from an l. p. intended to subsidize the education of clerics is understood to be assignable also for the benefit of seminarians who have not yet received the tonsure (can. 1362). Cases concerning disputes over l. p. necessarily fall within the forum of the Ordinary of the testator (can. 1360 n. 4).
VI. THE L. P. IN ITALIAN LEGISLATION. — In matters of l. p. and pious intentions, pre-Concordat Italian law was inspired, as in other areas, by the policy of dissolution. By law 15 Aug. 1867 no. 3848, art. 1 no. 6, in the general suppression of all pre-existing institutions and foundations established for purposes of worship « with a perpetual character », there had been expressly included « l. p. for purposes of worship » and pious foundations « even when not erected under an ecclesiastical title ». Since, however, the respective charges had been preserved at the expense of those entitled to claim the assets of the individual endowments (art. 5, law 1867, no. 3848), the suppression in reality assumed the character of a transformation in the nature of the charges, which changed from real to purely personal.
In order to prevent the revival of such institutions, the Civil Code of 1865, in arts. 833 and 1075, declared null legacies and, in general, pious dispositions ordered for the purpose of establishing or endowing « simple benefices, lay chaplaincies, or other similar foundations ». Moreover, art. 831 declared dispositions for the soul (including, therefore, l. p.) « expressed generically » null.
By contrast, dispositions in favor of the poor were declared valid « even if expressed generically » (art. 832), and their assets were assigned for the benefit of the local public charity institution (formerly the Congregazione di carità, now the Ente comunale di assistenza, law 3 June 1937, no. 847).
Even before the recent codification, the exceptional prohibitions contained in arts. 833 and 1075 of the 1865 Code were regarded as repealed, by reason of incompatibility, by art. 29 d) of the Concordat, which states that « foundations for worship of every kind are permitted, provided that it is established that they meet the religious needs of the population and that no financial burden thereby falls upon the State »; nor could art. 1 of the law of 15 Aug. 1867 be applied after the above-mentioned article of the Concordat had expressly provided for the recognition also of « foundations already existing in fact ». In confirmation of all this, the 1942 Code does not reproduce arts. 833 and 1075 of the old Code, nor does it reproduce their substance.
Under current law, therefore, nothing prevents the validity of an l. p. intended to establish a pious foundation of any kind. The possible granting of juridical personality is, however, subject to the two conditions set out in the aforementioned art. 29 of the Concordat (cf. arts. 4-5, law 27 May 1929 no. 848; art. 17, Regulation 2 Dec. 1929 no. 2262).
Moreover, by virtue of art. 629, which replaced art. 831 of the old Code, dispositions for the soul (legacies for worship) are declared valid « provided that the assets are specified or the sum to be employed for this purpose can be determined ». The law itself provides for the determination of the person charged with the obligation, establishing, in order to avoid uncertainty, that dispositions in favor of the soul, however formulated, « are considered an obligation imposed upon the heir or legatee ». It has been observed that this declaration, generally regarded as an explicit definition in the matter, is often in conflict with the true juridical nature of the dispositions themselves.
For the performance of the pious obligation, it is provided that « any interested party » may bring an action; in the event of non-performance, such party may also request the rescission of the testamentary disposition (arts. 629, 648). This is a very broad formula and, in our view, one that also includes the ordinary diocesan authority when the matter concerns pious legacies and foundations accepted in accordance with can. 1546. The principle nevertheless remains that, if there were no interested party at all to demand performance, the obligation would remain civilly unenforceable, the relationship retaining the character of a natural obligation. In any event, the testator is permitted to designate a person to supervise the execution of the disposition, regardless of whether, in the act establishing the pious disposition, the person interested in its performance has been designated (art. 629).
Pious dispositions not concerning worship, that is, legacies and pious bequests in general in favor of institutions or natural persons for charitable and philanthropic works, are instead subject to the ordinary rules of civil law. It need only be observed that « dispositions in favor of the poor, and other similar dispositions, expressed generically », that is, without specifying the use or beneficiary institution, or where the designated executor cannot or will not accept, are understood to have been made in favor of the poor of the locality, and the relevant assets are assigned to the Ente comunale di assistenza (art. 630).
A pious disposition of any kind may not burden the portion reserved for forced heirs (art. 549). The institution in whose favor it is made must be recognized; otherwise, the disposition remains ineffective if an application for recognition has not been submitted within one year from the day on which the will became enforceable (art. 600).