Case XXII: An Heir’s Duty to Pay a Testator’s Debts

A father dies heavily insured and heavily in debt. His children get the insurance, and could, with the money, pay the father’s debts. This they refuse to do, however, but instead they are enjoying themselves with the money. (1) Are they bound to pay the father’s debts? (2) If some of the children refuse, is one of them bound to pay the whole, or his pro rata share?

Answer.—Blackstone defines an heir to be “him upon whom the law casts the estate immediately on the death of the ancestor.” The term “heir” in the Roman law applied equally to him who took by will and by descent. The civil law, says Kent, held by a strange fiction, that the heir was the same person as the ancestor, eadem persona cum defuncto. The estate, instead of being changed by the descent, was deemed to continue in the heir, who succeeded to the person and place and estate of the ancestor, and to all his rights and obligations. The heir is, therefore, under the civil law said to represent the moral person of the intestate. The creditor could come upon the heir, not only to the extent of the assets, but to all the other property of the heir. Later on Justinian allows the heir to protect himself by giving him the benefit of an inventory. These provisions of the Roman law on the subject of succession have insinuated themselves into the Canon Law of the Church, as well as into the law of successions of the Continental nations of Europe. Thus the canonist not only uses the terminology of the Roman law in this particular matter of succession, but is often guided by the spirit of the Roman or civil law in rendering decisions in matters of justice. According to the law of the United States, an estate by descent renders the heir liable for the debts of his ancestors, to the value of the property descended. In New York State, and in most of the States of the Union, heirs are liable for the debts of the ancestor by simple contract, as well as by specialty, to the extent of the assets descended, on condition that the personal estate of the ancestor shall be insufficient and shall have been previously exhausted. The general rule of the English and American law is that the personal estate is the primary fund for the discharge of the debts, and is to be first applied and exhausted. “I assume,” says Kent, “that the rule prevails generally in these United States that the lands descended to the heirs are liable to the debts of the ancestor equally, in all cases, with the personal estate” (Comment iv, 422).

According to the Roman law, and therefore according to the Canon Law, heirs succeeded to an estate of an ancestor either titulo universals or titulo particulari. A universal heir is one who succeeds to the whole estate or property of the ancestor or testator, whether such heir be one person or several, and whether he inherit by virtue of a last will and testament, or succeed to the property and estate of an intestate. A particular heir is one who comes into possession of | specific property by particular title, whether of legacy or purchase or gift. The universal heir was, as has been said, considered by a fiction of the Roman law one and the same person as the ancestor. His substitution to the ancestor was a kind of continual succession, similar to that which is applied to a corporation.

If the heir succeeded to all the property, he was said to be heres ex asse, i. e., sole heir. If he received a fixed part, he was called heres ex parte, v. g., heres ex semisse received one half, heres ex dodrante received three-fourths of the inheritance, etc. All these heirs succeeded titulo universali. Since it is the tiulus untversalis, whether to all the property or to a specific part of it, as one-half, one-fourth, etc., that constitutes the heir one and the same person as the testator, eadem persona cum defuncto, as the civil law has it, all heirs who succeed to an inheritance titulo universali, vel ex asse, vel ex parte, are liable for the debts of the ancestor, at least to the extent of the property descended. If the universal heir be a sole heir and succeed with benefit of an inventory, he cannot be held liable in foro interno for the debts of his ancestors beyond the assets of the ancestor descended. If he succeeds without the benefit of an inventory, some theologians maintain that he may be liable not only to the extent of the assets descended, but to all his other property. Since this is not certain, an heir succeeding without inventory can not be compelled in conscience to pay his ancestor’s debts beyond the extent of the ancestor’s property descended, but if creditors or legatees have succeeded in recovering even out of the heir’s assets that did not descend from the ancestor, they could not be obliged in conscience to restore. If the heres universalis is not one person but several persons, then in conscience each one is liable for his ancestor’s debts in proportion to the amount of his share of the inheritance. Thus, if each heir received one-third of the estate, each one of them would be liable for one-third of the testator’s debts, even in case the other heirs refused to pay their pro rata share. “He who accepts an inheritance thereby assumes both the goods and rights and also the REAL burdens and debts of the deceased, provided they do not exceed the resources of the inheritance; but the PERSONAL rights and burdens of the deceased are extinguished with him.” (Noldin, de contr. 545.)

Therefore, the heirs are bound in conscience to pay: (1) the legacies willed by the testator, whether to private individuals or to public or religious bodies; (2) the testator’s lawful debts. All this to the extent of the property inherited. If some of the heirs refuse to pay, the others are bound pro rata, 1. e., if they received one-half of the testator’s property, they are liable in conscience for one-half of his debts. As a rule, there is no difficulty in this matter, as the civil law makes ample provision for the paying of a testator’s debts out of his assets.

A legatee, devisee, etc., being an heir titulo particulari, according to the civil law, is not liable for the debts of the devisor or testator. But by the admirable equity of the civil law, says Kent, donations of this nature were not allowed to defeat the just claims of creditors, and they were void as against them, even without a fraudulent intent. It is equally the language of the modern civilians, that donations cannot be sustained to the prejudice of existing creditors,

It is clear, therefore, that the children of the man in this case who died heavily insured and heavily in debt, are bound in conscience to pay their father’s debts out of his insurance which they inherited, nor may they be absolved until they are disposed to do so. If some of them refuse to pay, the others are bound to pay a rateable share, i. e., such share of the father’s debts as shall be a just pro- - portion of the insurance they received.