francesca macino Since the monastery had become so poor that it was unable to provide for the maintenance of its nuns, whose status also prevented them from begging, they could undoubtedly be counted among thepauperes towhom the testamentary bequest was destined. Petrus furthermore argues that the abbess had been granted arbitral discretion (arbitrium boni viri) by the words “prout videbitur et placebit suis commissariis” (as will seem appropriate to the executors) in the testament, which allowed her to operate on the basis of equity. The effectiveness of this expression is reaffirmed by Petrus also to address the second main doubt, namely whether the abbess as executor was entitled to attribute the remainder to her monastery; thearbitrium boni viri granted by the formula freed the executors from the most restrictive legal formalities – it may be noted incidentally that the emphasis on the element of arbitriumplaces the application of the clausula in the sphere of aequitas and highlights its equitative potential from the very beginning. If the state of things had remained as it was at the time of the testament (“rebus sic stantibus prout stabant tempore testamenti”), Petrus concludes, it would have been very doubtful that the executors could allocate the rest of the legacy to the nuns; but since the situation had changed for the worse, the principle applies that when faced with the occurrence of an unforeseen case, one can withdraw from anyordinatio, according to the testatrix’s verisimilar will. If Azolina could have fathomed the possibility of such a change in the monastery’s predicament, she would certainly have disposed in favour of the nuns, even though she had had in mind not them but other persons as beneficiaries of the legacy. He also adds that, since the testatrix had already planned to enter the monastery, if she had foreseen its impoverishment (“si cogitasset de dicta inopia superveniente”) she would have been more likely to allocate the remainder of her inheritance to herself than to others. It is important to point out that the rationale of consilium84 consists precisely in the monastery’s supervening poverty; in another consilium, n.282,20 to a similar request – based on other grounds than a change in 229 20 Petri de AncharanoConsilia (ed. 1585), fol. 149r–v.
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