PIUS LEGACY. — The first term is a modal legacy, in which the modus is a purpose of charity or religion.
SUMMARY:
I. Notion
II. Various juridical and historical forms
III. Juridical nature
IV. Juridical personality
V. Canon law
VI. The p. l. in Italian legislation.I. Notion
Through an involutive process that has led to confusion between the p. l. and similar relationships to which it may give rise, this term assumes in juridical language two other meanings, one amplificatory, the other restrictive. In a very particular, broad and generic sense, by p. l. is meant every form of bequest aimed at a purpose more of religion or charity, including the simple burden imposed by the testator on the heir or legatee for the same end. Indeed, the denomination of pious legacy is even extended to every disposition of goods made *ad pias causas*, reducing the p. l. to the generic canonical concept of *causa pia* (can. 1513, 1421, 1473, 1653 § 4) and of pious will, whose discipline is given, for the general part, in cann. 1513–1517 and, for the special part, in cann. 1489–94, 1544–51, including the subspecies of pious institution and foundation, fiduciary and fideicommissary dispositions, and *mortis causa* donations.On the contrary, in the strictest sense, evidently restrictive, by p. l. is meant only the legacy for a religious purpose, burdened by a charge whose content is an act of worship (specific prayers, novenas, rosaries, celebration of Masses, sacred functions, religious feasts, etc.). In this sense, it also assumes the denomination of legacy or disposition *pro anima*, whose typical and prevalent figure is given by the legacy of Masses in suffrage for the deceased.
II. VARIOUS JURIDICAL AND HISTORICAL FORMS
Juridically, as well as historically, the p. l., taken in the broadest sense, is usually considered under three different aspects, according to the three different means by which the testator can pursue a pious purpose: as a simple burden imposed by the testator on the heir or legatee (p. l. in an improper sense), as a true modal legacy (legacy in the proper sense), or as an autonomous foundation. The true p. l. occurs only in the second case.1. As a simple burden
Here one should not speak of a legacy. Unlike what happens in the p. l. in the proper sense, there is no specific differentiation of goods in view of the pious purpose; the *modus* (the pious burden) is merely accessory to the institution of heir or legatee, accessory that is to the principal disposition intended first of all to benefit the heir or legatee; one cannot speak of self-absorption, nor is the determination of the person of the beneficiary who, by executing the pious purpose (e.g., celebrating Masses), is advantaged by the burden, necessarily required. We are in the generic field of *pia voluntas* (can. 1513 et seq.).2. As a true modal legacy
The pious testator segregates from the mass of his patrimony a complex of goods individually identified and destines them to the pious purpose he intends, entrusting the execution of his will to a pre-existing juridical subject, whether a natural or juridical person, in whose favour the patrimonial attribution is made. This subject acquires ownership of such goods, but not their usufruct, since the execution of the *modus* absorbs entirely their economic utility, thus determining the self-absorption of the legacy.By virtue of the bond *ad piam causam*, the patrimonial entity thus differentiated, although inserted in the patrimony of a pre-existing subject, acquires its own physiognomy and its own autonomy even in relation to the other goods of the subject to which it pertains, and as such assumes various forms and denominations. Canonically, it appears in the figure of the pious foundation, when the destination of the goods is in favour of ecclesiastical juridical persons with the burden, *in perpetuum vel in diuturnum tempus*, of employing the related income in the celebration of Masses, in sacred functions, or in works of piety and charity (can. 1544–51). The pious foundation differs from the p. l., of which it is a subspecies, in that in it the subject invested with the goods is always an ecclesiastical juridical person, so that the goods themselves become ecclesiastical in the strict sense; whereas in the simple p. l. the attribution can also be made to a lay subject, whether a natural or juridical person, the goods retaining their lay character, as occurs, for example, in a lay chaplaincy. It also differs in the durable character that is proper to it by nature, whereas the p. l. can be either perpetual or temporary, depending on whether the execution of the burden is exhausted in one or more numerically defined performances, or engages in periodic performances indefinitely or at least for a long time.
If the destination of the goods is made for a work of charity (for the assistance of the poor, for pious works, hospitals, orphanages, recreation centres, etc.), the pious disposition assumes the name of legacy of charity or disposition for the poor; if, instead, it is directed to purposes of worship and religion (celebrations of Holy Masses, novenas, sacred octaves, sacred functions and feasts, etc.), one has the legacy or disposition *pro anima*. The typical form of the legacy *pro anima*, representing the largest mass of modern pious dispositions, is, as has been seen, the legacy of Masses, also called foundation of Masses when the related burden weighs, *in perpetuum vel in diuturnum tempus*, on the assigned patrimonial entity (can. 826 § 3, 1551 § 2). If the celebration of Masses has been disposed with determination of place (church, oratory, chapel, altar), one has the lay chaplaincy, as a subspecies of the p. l.; if it has been disposed with determination of time, one will have the daily, monthly, quarterly chaplaincy, etc., or the anniversary.
Historical forms of the p. l. for purposes of charity and worship are: the *praestimonium*, when the legacy is instituted to support students directed towards an ecclesiastical career or others who dedicate themselves to the propagation of the faith; the *praeceptoria* or commandery (of military orders), when it is directed for the benefit of religious or lay knights dedicated to works of charity or to the militia in defence of the faith; the *salarium*, if it is intended to stipend the various lay servants of the church, sacristans, cantors, minor clergy, sextons, etc.
3. As an autonomous foundation
Instead of entrusting others to provide or have provided for the fulfilment of his will, the testator can destine a patrimony autonomously for the foundation of a new juridical person whose institutional end will be the fulfilment of the pious purpose. Here the disposition is exhausted in the assignment of the patrimony that will form the economic substratum of the new entity, which will come into being following recognition by the competent authority. It belongs to the genus of the most generous bequest and differs from the p. l. and from the foundation proper by the declared will of the testator aimed at constituting the *causa pia* as a juridical person. To this category belong ecclesiastical benefices, simple benefices, and ecclesiastical chaplaincies (v. BENEFICIO ECCLESIASTICO; CAPPELLANIA).### III. Legal Nature
Up to now, doctrine has been unanimous in recognizing in the *legatum pia causa* (taken in the proper sense) a true legacy *sub modo*, i.e., a modal donation by act of last will. This theory is now contested by a trend which, by assimilating and depersonalizing the *legatum pia causa* into the single category of dispositions for the soul, classifies them as simple burdens, i.e., personal obligations incumbent upon the legatee or the heir and their successors in title.
The Italian legislator seems to have been inspired by this trend in drafting the second paragraph of Article 629 of the Civil Code. It is insisted that the *legatum pia causa* be seen as a merely accessory disposition to the institution of an heir and to a legacy, rather than an independent disposition capable of standing on its own, even in the absence of other testamentary dispositions. It is further argued that the concept of liberality, deemed essential for a modal legacy, is absent from the *legatum pia causa*, since the burden is directly in the sole interest of the testator, or, if it benefits a third party, it is accessory for the latter while principal for the testator. These arguments are easily refutable and do not appear to undermine the traditional opinion.
It seems, however, useful to draw a distinction: there are dispositions more properly termed *legatum pia causa* in the improper sense, which in practice result as simple burdens; but there are also dispositions properly so called, which exhibit the characteristics of true modal legacies and establish a genuine obligatory relationship between the honored party and the subject burdened.
It should also be noted that, at times, in the discussion of the legal nature of *dispositiones pia causa*, the determining transaction (the act of the testator) is confused with the subsequent relationship established between the honored party and the third party benefited by the honor, which is undoubtedly a true obligatory relationship. Thus, for example, it is understandable how the *legatum pia causa* in the form of a *pia fondazione* was defined by canon law (can. 1544 § 2) as an innominate contract of the *do ut facias* type, once acceptance by the legatee had occurred.
### IV. Legal Personality
The question of whether the *legatum pia causa* possesses the qualification of legal personality is also debated. The affirmative solution, supported in the past on the basis of Romano-canonical doctrine, must largely be regarded as the result of the subsequent confusion between the concept of *legatum pia causa* and the concepts of *pia causa* and *pia istituzione* (juristic persons). The fact that the *legatum pia causa* consisted of a share of assets differentiated from the testator’s estate and not assimilated, by virtue of the bond *ad pias causas*, into the patrimony of the recipient subject led to the consideration of the legacy itself, in the manner of a *pia istituzione*, as an autonomous entity endowed with its own legal personality. Moreover, it was argued that the phenomenon of self-absorption (especially when the burdened and honored party was the same ecclesiastical entity) tended to emphasize in the legatee the figure of the honored party, leading to the view that the latter was not so much an owner as a mere executor of the *pia* will.
Today, this thesis has been abandoned, both with regard to the *legatum pia causa* in general and to its subspecies, such as *fondazioni pie* and *cappellanie laicali*. In reality, these are groups of assets that are incorporated into the patrimony of pre-existing legal subjects, which consequently acquire ownership of them. Thus, while maintaining a certain autonomy by virtue of their special destination, they become objects rather than subjects of law. It is well known, moreover, that autonomy does not conceptually imply legal personality, though it is a necessary prerequisite for II. The fact remains that in canon law, the acceptance of a legacy by an ecclesiastical entity (can. 1546) is considered a legitimate acquisition by the entity itself, with the result that the assets thus acquired become strictly ecclesiastical property (*can. 1497 § 1*; S. Congregazione del Concilio, 27 Apr.–2 May 1927, in *AAS*, 20 [1928], p. 363) and cannot be alienated except in the manner prescribed for ecclesiastical goods (*can. 1530–33*). It is precisely the lack of legal personality that constitutes the principal characteristic distinguishing the *legatum pia causa*, including *fondazioni pie* and *cappellanie laicali*, from *pie istituzioni*, simple benefices, and ecclesiastical chaplaincies.
### V. Canonical Legislation
Since, according to the *Codex Iuris Canonici*, the *legatum pia causa* is considered a subspecies of *pie voluntates* and most commonly appears in the form of a *pia fondazione*, the norms of cann. 1513–17, as well as the subsequent provisions of cann. 1544–51, apply to II.
First, the capacity of subjects to dispose of their goods for *pie* purposes is determined solely by natural and canon law (*can. 1513 § 1*). Thus, every liberality for a *pie* cause is considered valid, provided the testator is not prohibited by natural law (those incapable of a free and human act, *can. 88 § 3*) or by ecclesiastical law (religious after solemn vows, *can. 581–82*; novices during the novitiate, *can. 568*). Consequently, limitations on the capacity to make wills or donations imposed by civil law (Art. 591 of the Civil Code) are irrelevant.
With regard to form, the modalities required by civil laws are considered *ad probationem*, not *ad validitatem*. While their observance is as far as possible prescribed, even in their absence, a liberality for a *pie* cause is declared equally valid, even if informal, so that non-compliant heirs must be compelled to fulfill their duty (*can. 1513 § 2*; cf. c. 4, X, 3, 26 with the annexed gloss *"nudis verbis"*).
It is further prescribed that the fulfillment of *legata pia causa* and *pie voluntates* be carried out with the utmost diligence, both with regard to the conferral of the due performances and the administration and disbursement of the assets bequeathed (*can. 1514*). The Ordinaries are by law the executors of every *pie voluntas*, exercising the consequent right of supervision through control visits and exacting precise accounting from the executors they have delegated. Any clauses contrary to this right contained in the act of last will are considered as not written, i.e., *vitiantur sed non vitiant* (*can. 1515–47*). Appropriate sanctions and penalties are provided against those who fail to comply (*can. 2348*).
Clerics and religious who have received goods in trust (which normally occurs whenever they are named as legatees for a *pie* purpose) are bound to inform their Ordinary, who will provide for the placement of the goods and the faithful execution of the trust (*can. 1515, 1516*).
Any reduction or commutation of *pie* burdens, with the legacies guaranteed, is reserved to the Holy See, unless the testator has explicitly granted this faculty to the Ordinary, or the measure has become necessary due to an unforeseeable decrease in income or to an impossibility, however arising, of fulfilling the *pie* will. An exception is made in every case for the reduction of burdens for Masses, which remains exclusively within the competence of the Holy See (*can. 1517, 1518*).
The income of a *legatum pia causa* directed to subsidizing the education of clerics is understood to be devolved also in favor of seminarians not yet tonsured (*can. 1362*). Causes concerning disputes over *legata pia causa* have as their necessary forum that of the Ordinary of the testator (*can. 1560 n. 4*).
VI. THE LEGACY FOR PIETY IN ITALIAN LEGISLATION
In matters concerning legacies for piety and pious wills, pre-Concordat Italian law, like other areas, was inspired by anti-clericalism. With Law No. 3848 of 15 August 1867, Article 1, No. 6, in the general suppression of all pre-existing institutions and foundations established for religious purposes and of a perpetual nature, "legacies for piety intended for religious purposes and pious foundations" were expressly included, "even if not erected with ecclesiastical title." However, since the respective burdens were maintained against those who had title to claim the goods of the individual endowments (Article 5; Law No. 3848 of 1867), the suppression in reality amounted to a transformation of the nature of the burdens, which shifted from real to purely personal obligations.With the aim of preventing the revival of such institutions, the Civil Code of 1865, in Articles 833 and 1075, declared null and void legacies and, in general, pious dispositions made with the purpose of establishing or endowing "simple benefices, chaplaincies, lay offices, or similar foundations." Furthermore, in Article 831, dispositions for the soul (including therefore legacies for piety) were declared null and void "if expressed in general terms."
On the other hand, dispositions in favor of the poor were declared valid "even if expressed in general terms" (Article 832), with their goods devolved in favor of the local public welfare institution (formerly the Congregation of Charity, now the Municipal Assistance Body, Law No. 847 of 3 June 1937).
Even before the recent codification, the exceptional prohibitions contained in Articles 833 and 1075 of the 1865 Code were considered abrogated, due to incompatibility, by Article 29(d) of the Concordat, which states that "foundations for any kind of worship are permitted, provided it is established that they meet the religious needs of the population and do not impose any financial burden on the State." Nor could Article 1 of the Law of 15 August 1867 be applied after the Concordat had expressly provided for the recognizability of even those foundations already in existence de facto. In confirmation of this, the 1942 Code does not reproduce Articles 833 and 1075 of the old Code, nor does it incorporate their content.
Under current law, therefore, nothing prevents the validity of a legacy for piety intended to establish a foundation of any kind. The possible granting of legal personality is, however, subject to the two conditions set out in the aforementioned Article 29 of the Concordat (cf. Articles 4–5 of Law No. 848 of 27 May 1929; Article 17 of the Regulations of 2 December 1929, No. 262).
Moreover, by virtue of Article 629, which replaced Article 831 of the old Code, dispositions for the soul (legacies for piety) are declared valid "if the goods are specified or the sum to be employed for this purpose can be determined." The law itself provides for the determination of the obligated party, stipulating, to avoid uncertainties, that dispositions in favor of the soul, however phrased, "are considered a burden on the heir or legatee." It has been observed that this provision, generally regarded as an explicit definition in the matter, often contrasts with the true juridical nature of such dispositions.
To ensure the fulfillment of the pious burden, any "interested party" may take action (Article 629, 648), who may also, in case of non-fulfillment, request the annulment of the testamentary disposition; this formula is very broad and, in our view, includes the ordinary diocesan authority when dealing with legacies and pious foundations accepted in accordance with canon 1546. The principle remains, however, that if no interested party exists to demand fulfillment, the burden is civilly unenforceable, remaining a matter of natural obligation. In any case, the testator is permitted to designate a person to oversee the execution of the disposition, whether or not such a person is indicated in the pious disposition itself (Article 629).
On the other hand, pious dispositions not intended for worship are subject to the ordinary civil law rules; that is, legacies and pious bequests in general in favor of entities or individuals for charitable and welfare purposes. It should be noted only that "dispositions in favor of the poor, and similar ones, expressed in general terms"—that is, without specification of the use or beneficiary institution, or where the designated executor cannot or will not accept—are understood to be made in favor of the poor of the locality, with the relevant goods devolving to the Municipal Assistance Body (Article 630).
A pious disposition of any kind cannot encumber the reserved portion of heirs (Article 549). The entity in whose favor it is made must be recognized; otherwise, the disposition remains ineffective unless, within one year from the date on which the will becomes executable, an application for recognition is submitted (Article 600).