Chapter VII — On necessary heirs, and their substitution

I. There is a threefold kind of heirs. Some are necessary, who without lawful cause cannot be deprived of the inheritance. If a testator pass these over unnamed, the testament by common law is null. Others are heirs ab intestato, who succeed a deceased person without a testament. In the third place are extraneous heirs, who are freely instituted heirs by the testator.

II. QUESTION I. How do sons succeed parents, and parents sons? ANSWER. Lawful sons succeed necessarily to their parents in the lawful portion, which comprehends a third part of the goods, if the sons be four or fewer. If more than four, the lawful portion includes the half of the goods. Of the remaining goods the father can freely dispose. In this also various laws of nations obtain.

III. The order to be observed in succession is that the nearer succeed to the stock: therefore, sons being alive, grandsons do not succeed. Among sons the inheritance is divided by heads. A father has three sons, one of whom dies, leaving several sons. These sons succeed to the inheritance of the grandfather or grandmother not by heads, but by stock, because all together represent one father; and therefore they succeed to the portion which was owed to their father, to be divided among the brothers. Parents cannot deny the lawful portion owed. Similarly ascendants succeed to sons when these lack descendants, the order of nearness being preserved. Brothers and sisters, ascendants and descendants being removed, are not necessary heirs, and much less the other blood-relations.

IV. QUESTION II. For what causes can sons be disinherited by parents, and parents by sons? ANSWER. First, if a son lay impious hands upon his parents, a mortal fault intervening. Otherwise if he did it that he might defend himself or his country. Second, a grave contumely inflicted upon a father by words or deeds. Third, if a son accuse a parent of a crime for which the penalty of death is to be inflicted, heresy or the crime of treason or the betrayal of his country excepted. Fourth, if a son be a sorcerer, or a partner of sorceries. Fifth, if a son have plotted his father's death, even the effect not following. Sixth, if a son knowingly have known his father's wife or concubine. Seventh, if, his father being held in prison, the son were unwilling to go surety for him. Eighth, if a son hindered his father from drawing up a testament, or from revoking one drawn up. Ninth, if a daughter repudiated a dowry that she might live lasciviously. Tenth, if a daughter married a slave not free. Eleventh, if sons were unwilling to care for demented parents. Twelfth, if sons were unwilling to free captive parents. Thirteenth, if Catholic sons apostatized from religion. Similarly sons can disinherit ungrateful and wicked parents.

V. QUESTION III. What is to be said of heirs ab intestato? ANSWER. He is called an heir ab intestato who by reason of nearness of blood succeeds the deceased. And these are sons, grandsons, great-grandsons, and so forth. If they be sons, they succeed by heads; if grandsons, by stock. Descendants being removed, ascendants succeed, the order of nearness being always preserved. Ascendants and descendants being removed, collateral blood-relations succeed, whether they be agnates or cognates. If you desire more, see Vol. VII, Book 9, dissertation 5.

VI. QUESTION IV. What is vulgar substitution, pupillary substitution, and so forth? ANSWER. Vulgar substitution is that by which a man substitutes for an heir instituted by himself some other who is capable of testamentary succession. Pupillary substitution is that by which a father substitutes another heir for a son dying before puberty. Exemplary substitution imitates pupillary substitution, inasmuch as a father can draw up a testament for a demented son. Fiduciary substitution burdens the heir, who is called the fiduciary, that he render the inheritance either entire or in part to another person, who is called the trustee. Reciprocal substitution is that by which instituted heirs succeed one another. Compendious substitution is that which comprehends several substitutions as regards diverse times.

VII. QUESTION V. How can valid testaments be revoked? ANSWER. A testator can at his pleasure revoke his own testament. Some contend that a testator who has sworn that he will not revoke his testament can lawfully revoke it without the fault of perjury. But this opinion is false, as authors commonly teach. For an oath concerning a lawful thing is to be observed. Many nevertheless contend that the revocation of the testament is valid, because the perjury affects the testator himself, but by no means makes the revocation invalid. But the more probable opinion to me is that the revocation is invalid, because by means of the oath the testator took from himself the power of revoking the testament drawn up.

VIII. A second testament furnished with all the solemnities by that very fact revokes the first. When two together draw up a testament in a single writing, one being dead, the survivor can revoke the testament as regards that which touches his own part of the goods. Since although the writing be materially one, there are nevertheless two testators. When a lord grants a faculty to another — say a wife to her husband — that he draw up a testament for her, this testator being dead, the wife cannot revoke the testament, because a testament is confirmed by the testator's death; if nevertheless the testator drew up the testament in his own name, as lord. For if he draw it up as a minister or commissary, not in his own name but in his lord's, then the lord can revoke the testament. The faculty granted by the lord to the one drawing up the testament is therefore to be looked to in these cases.

IX. QUESTION VI. What obligation have heirs? ANSWER. They are bound to pay all the debts of the deceased testator, unless they accept the inheritance with the benefit of law, that is, of an inventory: whereby it comes about that the heir is not bound to pay beyond the strength of the inheritance. While the inventory is being drawn up, the creditors cannot vex the heir. But if the heir within the interval prescribed by law has not made an inventory, or has not repudiated the inheritance, he is bound to pay all the testator's debts, even if they exceed the inheritance. Real debts, which accompany the inheritance, the heir is bound to pay; not so personal ones, which attach to the person. Besides the real debts, the heir ought also to fulfil the legacies.

X. QUESTION VII. What is the obligation of a testamentary executor? ANSWER. Testamentary executors are some universal, others particular. Those are they who are chosen when in the testament no institution of an heir has been made, that they may pay the testator's debts and distribute all the goods. These are to execute the testament as valid.