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    Will and Testament of Clerics

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    Roman law allowed clerics to dispose of their property by will or otherwise. Bishops, however, were incapable of bequeathing goods acquired in the episcopate, these going to pious purposes in the diocese of the deceased. Goods possessed by bishops before entering the episcopate, as well as the property of all clerics dying intestate, passed on to their lawful heirs, or, when these were wanting, to the churches to which the decedents were attached (Cod. Just., lib. I, titt. iii, xli, sections 5,6; Novel., cxxiii, 19; cxxxi 13). Clerics succeeded to the property of intestates in the same manner as laymen [Cod., lib. I, titt. iii, liv (lxvi), sect. 6], and their ecclesiastical earnings were not brought into computation (Cod., lib. I, tit. xxxiii). The same law applied to regulars also (Cod., lib. I, tit. liv, sect. 7), but this was afterwards altered, the community succeeding to the rights of regulars (Novel., v, 5; xcciii, 38). While it is not easy in the mass of legislation of the first eight centuries to determine just what is of ecclesiastical origin, we may conclude that ancient canons forbade the inferior clergy as well as bishops to bequeath property that they had acquired through the church. Early ecclesiastical law gave to bishops the right of ownership and the disposition of property by will, while it was not licit for the clergy of lower grades to own anything, all goods being possessed in common. Property, too, of bishops acquired in the episcopate with funds accruing from the church reverted at death to the diocese [cf. Canon, Apostolorum, nn. 39 (40), 75; Gratian., P. II, Cau. XII, q. 1]. Inventories of private an ecclesiastical goods possessed by bishops were prescribed, and the later were not to be bequeathed with the former (Counc. Antioch, A.D. 341, xxiv-v; Counc. Epaon, A.D. 517, xvii).

    Private ownership by the clergy of property acquired though family or other sources not ecclesiastical was later acknowledged (III Counc. Carthage, A.D. 397; Gratian., l.x., q. 3). Bishops and clerics of lower degree were forbidden to leave legacies to those outside the Church, even though relatives (Counc. Carthage, xiii), while bishops were anathematized if they named pagan or heretical heirs, or, if dying intestate, their property devolved on such (Codex Eccl. Afric., lxxxi). The Church, when not constituted heir by bishops, was indemnified under certain conditions in France (Coun. Agde, A.D. 506, xxxiii) and in Spain (I Coun. Seville, A.D. 590, i). According to the Councils of Agde (vi) and Rheims (A.D. 625, xx) property bequeathed to a cleric was considered as given to his church. Canons, particularly of the sixth century, directing bishops to make the Church their heir, affected likewise succession by intestacy (Agde, xxxiii). This restriction applied to bishops only: attempts were frequently made to exclude also heirs of the lower clergy. Legislation was enacted against this abuse (Coun. Paris, A.D. 615, vii). The contrary practice by which heirs of intestate bishops appropriated church property had to be guarded against, especially in Spain [Counc. Terragona, A.D. 516, xii; Counc. Lerida, A.D. 546 (?), cap. ult.]. While in Roman law heirs of the clergy succeeded in case of intestacy, care was exercised by the Church that this should be in regard to private property only (Counc. Antioch, l.c.; Chalcedon, A.D. 451, xxii).

    When ecclesiastical benefices were established their income was intended to furnish incumbents proper support: the residue, if any, clerics were encouraged to give in charity while living, and they were forbidden to bequeath it even to pious institutions. The Third Lateran Council in 1179 enacted (Decr. III, 26, vii) that this residue (see JUS SPOLII) be returned to the church or churches (proportionately) whence it came. The purpose of this legislation was to prevent among the clergy the insidious vice of avarice, to restrain those who would amass wealth for the enriching of relatives, and likewise to enforce the ancient canons, viz. that such property be employed for religious or charitable ends. Alexander III, then reigning, did not disapprove, however of (Decr. 1. c., cap. 12) the custom of clerics bequeathing this surplus for charitable works, with a moderate sum to servants in appreciation for services rendered, though this was not in accordance with the canons. It was decreed towards the end of the fourteenth century (Thomassin, Vet. et Nov. Eccl. Disciplina, P.III, 1. 3, lvii, De Spolis Cleric.) that these goods or spoils be reserved to the Camera Apostolica or Papal Treasury to be applied to the needs of the universal Church. Paul III (Romani Pontifices, a. 1542) insisted on the force of this enactment and admonished those concerned to collect the spoils. Pius IV (Decens esse, a. 1560) decreed that all the possessions of clerics of which they could not lawfully dispose be reserved at death to the Papal Treasury: this law was confirmed by Benedict XIV (Apostolicae servitutis, a. 1741). Various decrees determine in detail what is embraced in the spoils of clerics. Pius VII transferred these spoils to the Congregation of the Propaganda for the support of the missions. There are, however, many exemptions from the law of spoils, and Rome was always ready, were it necessary, to renounce her title to these goods in favour of the deceased prelate's own church. Special legislation was enacted at times and agreements entered into with civil governments in regard to the estates of clerics. Gradually in the thirteenth and fourteenth centuries it became customary, and a special privilege was often granted by Rome to this effect, for clerics to bequeath their possessions, ecclesiastical authorities acquiescing to avoid numerous suits and litigations, and because too of the difficulty in individual cases of deciding just what constitutes the residue of the ecclesiastical income in question, since during life the surplus may have been given in charity. Many canonists admit (cf. Benedict XIV, "De Syn.", L. VII, c. ii) that clerics really own or have dominion over this surplus, and hence there is no obligation in justice on the part of legatees of restoring these goods. Nevertheless, the law has not been abrogated, but merely modified by the Council of Trent (Sess. XXV, can. i, De ref.), prohibiting the use of these goods for profane purposes. Consequently by reason of ecclesiastical precept, as well as owing to an obligation in charity, clerics are bound not to bequeath to relatives or others for their own use the income of ecclesiastical benefices. Goods accruing to a cleric from other sources, e.g. from family, literary pursuits, the exercise of fine arts, etc., or even the income of his benefice saved by frugality, may be disposed of without hindrance in life or at death. On account of changed conditions and civil legislation clerics are wont to bequeath all their possessions indiscriminately without regard to the mode of acquisition. These bequests are valid in the external forum, though in conscience the testators may be responsible for the loss suffered by charitable works. In civil law in most countries the status of a cleric differs in no way from that of a layman, and legal heirs enter in when a cleric dies intestate.

    It is prescribed that bishops leave to their cathedral sacred utensils purchased with funds received from the diocese. Bishops are admonished (III Plen. Counc. Balt., n. 269) to provide by testament or other legal document for due succession in church property, and to determine what disposition after death is to be made of their personal belongings. Priests too (loc. cit., n. 277) are exhorted to make their will in due season, being mindful in their legacies of the needs of religion and charity. Cardinals when created receive in a brief (De benignitate Sedis Apos.) the right to make a testament. This brief, notwithstanding a previous prohibition of Urban VIII, allows Cardinals to bequeath sacred vessels, vestments,and the like, to churches, chapels, pious institutions etc., especially to their own churches or titulars. If they do not avail themselves of this right, the articles in question belong to the papal chapel. This six cardinal bishops and abbots nullius must bequeath such articles to the pope's chapel (Pius IX, "Quum illud", 1 June, 1847). Regulars, whether superiors or subjects, do not enjoy the faculty of making a will, since owing to a vow of obedience they are not their own masters, and secondly because of their vow of poverty they are incapable of ownership (Can. vii, Can. 19, q. 3). What they acquire belongs to their monastery. They may explain or interpret a will made before their profession. A member of the regular clergy who becomes a bishop acquires property for his diocese, not for his community; but even his is incapable of making a will without the permission of the Holy See, since episcopal consecration does not release him from his religious vows. Goods possessed by regulars, who with permission live outside their monastery, belong to the community; the property of those who dwell in the world without permission and of those who are perpetually secularized follow the general law of spoils (Greg. XIII, Officii nostri, a. 1577). Members of orders which have been suppressed by civil authorities may under certain conditions, owing to a special privilege, dispose by will of property acquired. Those who make simple vows only are not deprived of the power to make a will.

    Decretals Greg. IX, lib. III, titt. 25, 26; SANTI, Praelect. Jur. Can., lib. III, titt. 25, 26; DE ANGELIS, Praelect Jur. Can., lib. III, titt. 25, 26; BRUNEL in Dict. Christ. Antiquities, s.v. Wills.

    ANDREW B. MEEHAN

    Transcribed by Michael T. Barrett Dedicated to Catholic estate planners