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Conferences on the Virtues

By Fr. Bruno Cocuzzi, ocd

 

Number 56

 

The Subject of Donations…

 

A Donation or Gift may be defined as the free and gratuitous transfer of dominion over some thing to an accepting other.

 

In this definition, free and gratuitous have distinctly different meanings.

 

It is free because there is no coercion, whether physical or moral.  The donor is in no way forced to confer the gift.  He gives because he wants to.  He is moved so to act from within himself.

 

A gift or donation is gratuitous because the donor is not looking for any kind of compensation in return for having transferred the ownership in question freely.  The thought of getting something in return never enters the donor’s mind.  Neither does the donor nourish the slightest desire that something be given freely in return by the donee.  If the thought or desire for some token compensation were present, the transfer would cease to be gratuitous.  It would be neither gift nor donation.

 

Of course, it is impossible for the donor to be utterly free of compensation of a higher and nobler order.  And that is the joy and satisfaction the donor experiences at having been able to give tangible evidence of his love and esteem for the donee.  The nobility of this kind of compensation consists in the fact that it is analogous to the Infinite Eternal Joy and Happiness the Persons of the Most Holy Trinity “experience” by Loving One Another, and by Their Being One in Loving us their human children.

 

Transfer of dominion includes transfer of rights over something of value, whether a material or an immaterial good.  In most instances it is a transfer of full dominion, that is, of ownership in the fullest sense of the word.  As we saw many, many conferences ago, there are lesser rights that can be transferred, such as the right of possession, the right to enjoy, or the right to use, and one alone or any combination of these rights may exist in the person who is not the legal “owner” of the goods in question.

 

To an accepting other signifies that the donor’s “offer” of the gift does not become a unilateral contract until it is “accepted” by the donee.  As pointed out a conference or two ago, even unilateral contracts require the mutual consent of at least two distinct parties.

 

All of the above can be summarized in saying that three things are required to constitute a gift (donation).  Liberality, Proprietorship, and Acceptance.  Liberality includes both free and gratuitous.  Proprietorship includes the right to transfer the dominion with which one is vested to another.

 

Most of us are familiar with two kinds of gifts and donations.  They are:

 

(1)    Gifts we make to another on birthdays, at Christmas, or on any other occasion when we want to corroborate the verbal expressions of our love for those we love by means of some tangible gift, and

 

(2)    Charitable donations.  These latter most often take the form of monetary contributions, as, for example, when one gives to the representative of an Order or Congregation who comes to our parish Church and makes a Mission Appeal.  You are all familiar with many other examples as well.

 

Catholic moral theology, however, recognizes three distinct ways of making donations.  They are:

 

(1)    Transfer of dominion between living persons (Latin:  donatio inter vivos);

(2)    Transfers in view of death; and

(3)    Transfers by Last Will and Testament. 

 

The first of these is the gift or donation we are most familiar with.  The donor actually and irrevocably relinquishes dominion in favor of the accepting donee.

 

Actually means the immediate transfer here and now, and Irrevocably means the transfer cannot be nullified or invalidated.  The donor’s rights over the thing transferred are gone forever and cannot revive except by operation of Law.

 

Clearly then, a Gift differs from a Promise (of a future transfer), and from a lending (transfer of dominion) for a stated or open-ended interval of time.

 

By its very nature, certain elements are required for the validity of a gift between living persons.

 

(a)    Dominion over the gift to be given.  One cannot give what one does not have.

(b)    Capacity:  The donor must be capable of giving the gift, and the donee capable of receiving it.

 

Along with dominion, the donor must be able freely to administer his goods. 

 

The ability to receive includes the donee’s ability to have dominion and the ability to exercise it.

 

Because the definition of gift or donation is silent upon the “value” of the thing transferred, it applies irrespective of the value.  Nevertheless, when the good or goods transferred by gift is of substantial value, civil law may intervene to define the manner of accomplishing the giving of the gift, and thus require a formal and solemn contract of gift.  This is to guarantee the freedom and irrevocability of the gift.

 

After insisting upon the irrevocability of a gift by the very nature of things, my author states that there can arise circumstances in which the donor would have the right to appeal to lawful authority to have the gift revoked.  As an example he mentions the possibility that the donor, after having transferred goods of substantial value to the donee, falls into a state of want, lacking fundamental human necessities.  In the event the donee does not go to the donor’s aid in such need, the donor may seek a judicial revocation of the gift.

 

My author also asks the question:

 

“What sin does a bankrupt donor commit who injures the rights of creditors by giving away as a gift the few remaining goods out of which the creditors expected to receive at least partial payment of what is lawfully due to them?”

 

He answers by saying that the donor commits a serious sin of injustice by doing such a thing, even though, technically speaking, one may do whatever one will with what is his own.

 

In addition, he states that if the donee has knowledge that the donor’s creditors will be deprived of even a partial payment, and he does not return the goods, he would be a cooperator in the sin of injustice of the donor, although technically speaking, if the donee did nothing to induce the gift, he would not be obliged in justice to restore the gift.  In my opinion, though, the donee in this latter situation would surely be “seriously obliged” in Charity.

 

A Gift in View of Death

 

This topic is dealt with by the author of my textbook by means of a Comment:

 

It is a gratuitous [unilateral] contract that is concluded in view of and upon condition of the death of the donor.  The dominion is actually transferred, but it is understood that the gift may be revoked at any time prior to the death of the donor.

 

Hence it differs from the gift between living persons, which is irrevocable, and from a testamentary gift, dominion of which is transferred at the death of the Testator.  A gift in view of death lies, therefore, midway between the other two kinds of gifts.  The former achieves the immediate transfer of absolute rights of dominion; the latter, a future, contingent transfer; contingent, that is, upon the non-revocation by the testator prior to his death.

 

Nowadays [the second edition of the book was published in 1949] this kind of transfer is not recognized by the Civil Law of several nations.  France and Belgium, Italy and the Netherlands exclude it altogether.  Austria, Germany, Spain and Portugal treat it as a legacy [bequest] subject to the same conditions as a bequest.  Swiss law is completely silent about it.

 

On the other hand, both English and American laws do admit of such gifts.  [The old] Canon Law explicitly recognized this kind of gift for pious purposes in virtue of [former] Canon 1513.

 

Somewhat similar to a gift in view of death not dependent upon the will of the donor is one made upon the condition that the donee does not die before the donor.  The same is true of one made upon the condition that the donor does not survive a danger of death.  These are always valid.

 

Although the author of my textbook states that a gift in view of death is recognized by our Civil Law, the Federal Government and the States do not give it absolute recognition.  The IRS, for one, will acknowledge as having passed out of the estate of a deceased Testator only those gifts that were made prior to a stated number of years preceding the death of the Testator.  It used to be ten years for the purposes of Federal estate Tax liability.  Unless I am mistaken, most States track the Federal law when writing their own Estate Tax Laws.

 

Another type of transfer of goods “in view of…” occurs when folks going into business transfer certain assets to their spouses or children, so that they may not be reached by creditors in the event the business fails.

 

            Question Three:  Concerning Wills

 

Essentially, a Will is a revocable act by means of which a Testator disposes of his personal possessions, or a specified part of them, effective upon his death.

 

It is said to be an act and not a contract because it does not require the consent of the legatees under the Will, and thus is valid, upon the death of the Testator, independent of the will of the beneficiaries.

 

It is essentially revocable because the Testator remains free at all times prior to his death to use any and all of the testamentary assets when and how he wishes. 

 

By which a Testator:  More than one person cannot validly sign one and the same Will; nor can one validly delegate another to sign his will for him.  Though we talk about “joint wills” by Husband and Wife, they are really individual Wills that stand side by side.  They are both Wills that are conditioned upon future events.  What part of each Will admits of compliance by the Executor depends upon which of the Spouses dies first.

 

Disposes of all or part of his possessions.  It reflects the Will of the Testator concerning the future dominion, administration and use of his assets as of the time of signing the Will.

 

Effective upon his death.  Otherwise it would be a gift between living persons.

 

Even though a Testamentary transfer is not a unilateral contract, it still merits to be called a gift because of the gratuitous nature of the disposition of the assets.  Another reason could be that there is a presumption that the beneficiaries under the Will would undoubtedly accept the distribution of the bequests eventually made to them.

 

The conditions requisite for the validity of a Last Will and Testament are determined and prescribed by the Civil Law of the Nation or State in which one is living.

 

Some of you are probably wondering, in view of the fact that we are still talking about commutative Justice, where does the notion of morality in reference to the giving of gifts come into the picture?

 

With regards to gifts, we have already considered the morality of giving away goods to which creditors have a just claim.

 

With regards to Wills, it is clear that no one is obliged in Justice to make out a Last Will and Testament, so that it is not a sin of injustice to omit doing so.  Nevertheless, an individual possessed of substantial assets could easily be obliged in Charity to make a Will, if for no other reason, in order to prevent dissension and strife among the heirs.  Even so, when someone dies intestate, the Civil law does, in effect, fills in the gap by its Laws of Intestate Succession.  These imitate as closely as possible a plan of distribution among lawful heirs commonly and generally found in Wills that are presented to a Probate Court for allowance.

 

Thus any question of the morality that is associated with Will has to do chiefly with the executor of the Will. 

 

Natural Law requires only that the executor faithfully carry out the intentions and instructions of the Testator as spelled out in the Will itself, provided, of course, that the expenses of last illness and burial, together with outstanding just debts of the deceased, are first paid.  But because the matter of peaceful, harmonious and efficient succession to property and assets subsequent to the death of their owner is such an important component of the Common Good, the duties of the executor are carefully spelled out in detail by the Civil Law.

 

Because it may take many many, months before the Will of a Testator is finally carried out completely, and because some Wills postpone for several years the distribution of assets to certain [minor] beneficiaries, one other important duty of the executor would be to manage and administer the estate assets so that they are not only preserved intact, but perhaps may even increase through prudent management.  So, it seems to me, that the most fundamental obligation in justice binding the conscience of an executor is that he act at all times in sincere good faith and with prudent diligence.  Part of that prudent diligence usually includes the engagement of an attorney competent in the field of Probate Law.

 

The termination of Wills

 

There are two ways to understand the expression:  the termination of a Will.  One occurs before the death of the Testator, the other, after.

 

After the testator’s death, the Will is terminated only when it has been completely fulfilled to the extent circumstances permit.  If it has required Probate proceedings, it terminates when the Probate Judge has approved and allowed the final accounting of the Executor.  Before the death of the Testator a Will can terminate in several ways.  The first, most obvious and most effective of these is by simply destroying the Will. 

 

(Having stated that, the thought occurs to me that a natural heir might be so upset with the share of the estate set aside for him by a parent’s Will that he would seek to destroy it, and so get a larger share through Intestate Succession.  Not only an heir, but also every human being is bound in conscience to hold sacred the will of a Testator.

 

Another and more common means to terminate a Will is by Revocation.

 

For whatever reason, the Testator himself may change his mind [intentions] and explicitly declare his Will to be no longer valid and binding upon his death.  This is done most often by expressly declaring it null and void as a preface to the new Will that he draws up to replace the former.

 

In addition to the revocation of an entire Will, certain provisions of a Will may be, in effect “revoked” in virtue of how the Testator uses or administers the assets of his estate, or by force of circumstances.

 

It may happen that the testator spends or gives away assets bequeathed to certain legatees under the will, such that they are no longer in existence or otherwise not included in the estate assets at his death.  Clearly, that part of the will that concerns those particular legatees has been “revoked”.  Here in the United States, assets no longer in the estate at the death of the Testator are said to have been adeemed.

 

If assets in an estate are destroyed by some natural disaster, such as tornado, earthquake or flood, etc., the provisions concerning the distributions of those assets would also be effectively “revoked”.

 

Finally, a Will in toto, or specific provisions thereof, may be rescinded by Judicial Decree.

 

Reasons for seeking the rescission are manifold.  There could be a defect in the validating formalities.  There could have been unjust pressure brought to bear upon the Testator that compromised his freedom.  He may have been the victim of fraud or deceit on the part of one or more of the legatees.  Or perhaps it can be shown that the Will as drawn up does grave injustice to natural heirs by leaving them in state of penury, thus leaving to the State the obligation of satisfying their basic human needs.

 

Next time we will begin by stating several principles that apply equally to Gifts between Living persons and to Testamentary Gifts.  After that we will say something about Intestate Succession.

 

 

 

 

 

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