The Canon Law of Inheritance

The folklaw of the Germanic peoples of Europe did not provide for testamentary succession. ³ Devolution upon heirs of the rights and duties of a decedent was regulated initially by tribal custom, later also by village custom, and still later also by feudal custom; the main concern was that the family or household or fief should survive the death of its individual members, and especially of its head.

With the introduction of Christianity, the dead man's portion was no longer buried or burned with the corpse; instead, it was distributed for

230- pious works, for the benefit of the dead man's soul. Customs varied throughout Europe, but typically the property subject to distribution was divided into thirds: one_third for the clan chieftain or king, onethird for the heir, and one_third as "God's portion."

The clergy, of course, had a great interest in God's portion. Particularly when a person was known to be about to die, a priest was apt to be present to remind him of his duty to atone for his sins and to leave his belongings for religious or charitable uses, such as the building of a chapel or relief of the poor. Throughout Europe the rule was introduced that a dying man's "last words" were to be given legal effect, whether or not they were reduced to writing. A Latin phrase was attached to the practice: donatio causa mortis ("gift in anticipation of death").

Another form of gift to take effect on death was the "post obit gift": with respect to certain land, called "bookland," a "book" was drawn up in which the owner would state, "I give the land after my death to..." This, as Maitland says, was not a will in the modern sense, since: (1) it was not revocable; (2) it was not ambulatory, that is, it did not apply to what the donor might own at the time the gift became effective; and (3) it did not provide for any representative of the donor at his death or any other procedure for administration of his estate. 4

It was partly on the basis of the Germanic Christian gift causa mortis and post obit gift that the twelfth­century canonists created a new law of wills -- and partly on the basis of the classical Roman law of testaments, which was known to the church and used by the church from early times. The Romans had a law of intestate succession that was similar to that of the Germanic folklaw, in that its primary purpose was to provide a successor to the head of the household (pater familias). Romann law, however, spelled out the legal aspects of succession much more fully. The inheritance itself was called a universitas juris, a single complex legal unit; this comprised the familia itself, with its ancestral privileges and obligations, its property, its slaves, and all the legal rights and duties of the decedent. All this devolved upon the heir instantaneously at the death of the decedent. However, from the time of the Twelve Tables, Roman law also provided that the "universal succession" of the heir to the legal personality of the decedent could be governed, alternatively, by a testament. Initially, the purpose of the testament was to counteract the rules of intestate succession in instances when those rules were unsuitable to a particular family situation; in other words, the same basic purpose motivated the introduction of the Roman testament that motivated the rules of intestate succession, namely, the continuation of the family household by the transmission of the legal personality of the decedent to

-231-

his heir (or to coheirs).

In the course of centuries, the Roman testament changed its character. The extremely elaborate formalities of the early period -- a fictitious sale of the familia, with copper coins and scales and ritual formulas -- gave way to signatures and seals of seven witnesses and subscription of the testator. Indeed, under certain circumstances an oral will could be valid. Also the heir was given the right to abstain from the inheritance, as he might well want to do if its liabilities exceeded its assets. Most important, special legacies and codicils in favor of individual beneficiaries multiplied, tending to weaken the heir's position (since he assumed the testator's obligations); and a wide variety of substitutions and default clauses were introduced. These developments in the direction of freedom of testation also favored the church in the Roman Empire. By the time of Justinian, bequests to the angels and the saints or to the poor or to other pious causes were awarded to appropriate churches or to bishops to administer. 5 Nevertheless, the Roman testament, though it fulfilled the three tests of the modern will listed by Maitland, lacked a fourth quality that was fundamental in the law of wills as it developed in the West in the late eleventh and twelfth centuries in the wake of the Papal Revolution. The new quality was the sanctity of the testator's wishes insofar as those wishes were linked with the preservaton of his soul: the "testament" became a "will," but it was a religious will.

The canonists treated the very making of a will as a religious act, and the will itself as a religious instrument. Typically it was made in the name of the Father, Son, and Holy Spirit. In Maitland's words, "The testator's first thought is not of the transmission of an hereditas, but of the future welfare of his immortal soul and his mortal body.

-232- will love it... On the other hand, the testator has no stocks, funds and securities to dispose of; he says nothing, or very little, of the debts that are owed to him, while of the debts he owes he says nothing or merely desires that they be paid." 6_

In the twelfth century the canonists established a body of rules for determining the validity of wills and for interpreting and enforcing them. In contrast to Roman law, testamentary formalities were minimized. Not only were "last words" spoken to one's confessor on one's deathbed treated as full- fledged testaments, but oral wills generally were considered valid. The Roman requirement of signatures and seals of seven qualified witnesses yielded to the rule stated in a decretal letter of Pope Alexander III to the Bishop of Ostia: "We decree as permanently valid the testaments which your parishioners may make in the presence of their priest and of three or two other suitable persons." 7In addition, individual bequests to pious causes were valid, according to another regulation of Alexander III, if witnessed by two or three persons.

The canonists also strengthened the protection of the surviving spouse and children against disinheritance by the testator. Roman law had provided that an heir could not be deprived of his "legitimate share"; this was originally fixed at one-fourth of what he would have received if the testator had died without a will, and later was raised to one-third (or one-half, if the testator was survived by five or more children). However, the heirs entitled to this share were the children and grandchildren or, if there were none, the parents, but not the wife. Canon law increased the share and included the wife within the protection, but not the grandchildren or the parents of the decedent. If a wife and children survived, neither could be deprived by will of more than one-third of the property subject to disposition by will; if only a wife or only children survived, she or they were entitled to one-half.

Even more important than changes in the Roman substantive law of testaments were the changes made by the canonists in the administration of estates. They created in the twelfth century the new institution of the testamentary executor. On the testator's death, instead of the acceptance of the inheritance by the heir, followed by his "entering upon" it and carrying out the instructions of the testament, the person appointed in the will as executor took possession of all the property subject to distribution. It was not the heir but the executor who exercised the rights of the testator and incurred his obligations. He could sue the testator's debtors in the secular courts; legatees, however, had to make their claims against

-233

him in the ecclesiastical courts.

The fact that the making of a will was a religious act explains the church's assumption of jurisdiction over intestacy as well. The church, in fact, considered intestacy to be in the nature of a sin. If a man died intestate, it was likely that he had died unconfessed. Moreover, the goods of the intestate ought to be distributed for the welfare of his soul. Thus the goods of the intestate were at the disposal of the ecclesiastical judge, that is, the bishop or his deputy, the "official." The bishop might trust the next of kin of the intestate to do what they thought best for his soul, but they had no claim to inherit anything more than their "legitimate part." Under the new canon law, the part that could not be taken from the wife and children by will was also the part that they inherited without a will; and all other kin had no right of inheritance at all unless the decedent had named them in a will. Thus the church claimed jurisdiction over intestate succession not only in order to protect the decedent's widow and orphaned children but also, for the good of his soul, to distribute the residue of his estate for charitable purposes.

In time, the ecclesiastical courts developed the practice of appointing an administrator to distribute the property of one who had died intestate. His functions were similar to those of the testamentary executor. The medieval canonical system of administration of decedent's estates by executors and administrators has survived in English and American law, whereas on the continent of Europe there was a return, in the sixteenth century and thereafter, to older Roman concepts whereby the estate was transferred to the heirs and administered by them, under judicial supervision, whether the decedent had died testate or intestate.

The institutional role of the priesthood was central. Priests heard "last words," witnessed wills, served as executors and administrators, and received bequests as trustees for religious bodies or for carrying out charitable works.

The institutional role of the eclesiastical court -- the bishop or his deputy -- was also central. Executors and administrators were required to render an account to the ecclesiastical court. Trustees for religious or charitable purposes were under the supervision of the ecclesiastical court. All disputes over inheritance were subject to the jurisdiction of that court (although some of them were also subject to the jurisdiction of secular courts).

The canon law of inheritance constituted a direct intervention by the church in feudal economic and political relations. The secular authorities offered strenuous resistance, especially with respect to ecclesiastical claims of jurisdiction over devises of land. In England and Normandy, for example, the secular courts in the twelfth century condemned the

-234-

post-obit as well as the deathbed gift of land. Of the latter, Glanvill's treatise ( 1187) stated that "it may be presumed that one who when sick unto death has begun to do, what he never did while in sound health, namely, to distribute his land, is moved to this rather by his agony than by a deliberate mind." 8_But perhaps that was not the most important aspect of the matter, since deathbed gifts of chattels were not condemned, and devises of land generally (whether by "last words" or by a carefully considered, unagonized, written testament) were also prohibited-not only in England but throughout the West-under feudal law (though not under urban law). Feudal law was, in fact, hostile to the devise of land, whether for charitable or noncharitable purposes.

In the case of devises to the church, would-be testators -- with ecclesiastical assistance -- found various ways to circumvent the prohibition. One was the gift of land to a religious corporation with reservation of a life estate in the donor. This was, in form, an inter vivos gift, which was at that time permitted, but it had the same effect as a will. The secular authorities eventually responded with statutes of mortmain ("dead hand") prohibiting all gifts of land to religious bodies. Other schemes were then tried. The landholder would not give the land but would surrender it to the religious corporation to be held by it as feudal lord, the transferor to continue to occupy it as vassal; after his death there was no one to enter and claim it but the religious corporation. Or the landholder would lease the land to the religious corporation for a thousand years, reserving the right to remain on it until his death. These devices, too, were eventually struck down. Finally, the church hit upon the device of the trust ("use"). Title to the land was conveyed to a lay person to be held by him as trustee for the religious corporation, which, after the donor's death, would have the use of the land and the right to all profits derived from it; and provision was made for a new trustee to succeed a trustee who died. Such "uses" had been widely utilized since the twelfth century for the benefit of religious orders that were forbidden to "own" property. Eventually they became a means not only of conveying land for charitable purposes during the landholders's lifetime but also of establishing what was in effect a charitable bequest or devise.

The story of the early development of the law of charitable trusts tells a great deal about the formation of the Western legal tradition. Even more clearly than in the case of family law, the canon law of inheritance was shaped by the need to take into account the secular law, which, by its emphasis on the political significance of land tenure, drove the church to focus its law of wills on chattels and to find other means of obtaining gifts of land. In England, at least, the ecclesiastical courts established a virtually exclusive jurisdiction over succession to chattels, both testate and intestate; this continued even after the English Reformation, and it has given the English and American law of inheritance a character

-235

different from that of the countries of continental Europe. In all the countries of the West, however, including England, ecclesiastical jurisdiction over succession to land was subordinated to secular jurisdiction. In fighting for gifts of land, the church made use of new legal concepts and new legal instruments. These included the modern concept and instrument of the trust, which passed over into English secular law through the equitable jurisdiction of the chancellor, but which between the twelfth and the fifteenth centuries was part of the law of all the countries of Europe, insofar as all were subject to ecclesiastical jurisdiction. Both the charitable bequest of chattels and the gift of land for the use of religious bodies in perpetuity involved the obligation of executors or trustees to effectuate the desires of donors in the interest of beneficiaries. And they both involved the enforcement and supervision of such obligation by the ecclesiastical courts.

The law that came out of the ecclesiastical jurisdiction over inheritance had not only its own structural elements but also some of the structural elements of the canon law as a whole. The wishes of the testator were sacred, since in making a will he was performing a religious act; by the same token, however, they were subject to the moral standards of the church as interpreted by the ecclesiastical authorities. A bequest for an immoral purpose -- for example, a bequest to a heretic -- was void. Yet a bequest that would normally have been void for vagueness -- for example, because of the uncertainty of the beneficiary, or of the amount of the legacy, or of the purpose of the testator, or of the means of carrying out his intention -- was enforced if it was a charitable bequest. A bequest "for the poor" or "for the worship of God" or merely "to charity" was valid. If a trustee was not named, the ecclesiastical court would appoint one. If an unincorporated association or a corporation incapable of holding property was named as legatee, the court would appoint a trustee to administer the bequest in its behalf. These are still rules of the law of trusts in the United States.

Where the wishes of the testator could not be fulfilled because of physical impossibility (for example, if the legatee was no longer alive), or because of illegality (for example, if the legatee was a heretic, or the devise was illegal under the secular law), the ecclesiastical court would carry out the testator's intention "as near as may be possible" (in Norman French, cypres, "as near as"). Another legatee, similar to the one named, would be found. Some equivalent of the land, or some rights in it, would be given to the legatee. The doctrine of cy pres still prevails in the United States.

The canon law of wills was founded on the jurisdiction of the church and of church courts over the religious act of making a will. Freedom of testation was conceived essentially as the freedom to contribute to religious and charitable causes, although it inevitably involved also the

-236-

freedom to bequeath one's belongings to relatives and friends. The welfare of the decedent's soul was at stake in every bequest. In addition, the welfare of the beneficiaries of the bequest was at stake, especially in the case of religious and charitable bequests. The canon law of intestate succession, however, though founded partly on the jurisdiction of the church and of church courts over the welfare of the decedent's soul, was also founded partly on their jurisdiction over widows and orphans. On these two jurisdictional foundations the canon law reintegrated the surviving Germanic and Roman legal institutions into a new body of inheritance law. There was a dialectical tension__________________________________________________________

which remains to this day __ between the law of wills (inherited only in part from Roman law) and the law of intestate succession (inherited only in part from Germanic folklaw).

Thus to speak of the canon law of inheritance as a subsystem within the system of canon law as a whole is to recognize that its structural unity, like that of the whole canon law, was founded on the conscious concordance of discordant elements.