Point II. On Testators and Heirs

820. • I. Those can be testators: From Roman Law, all having the use of reason, except deaf-mutes from birth, impuberes ¹, prodigals, those condemned to civil or natural death, and also professed Religious. But from Gallic Law: 1. all who can make donations among the living; 2. wives, who, although they cannot pay out donations among the living without the special consent of the husband or the authority of the judge, nevertheless need neither of these in order to be able to dispose freely by testament (art. 905); 3. minors from the sixteenth year can testate only concerning half the part of their goods concerning which majors are able to dispose (art. 904); but interdicted persons cannot testate.

¹ According to the Institutes (book 2, title 12), add all those who are subject to another's law..., and indeed to such an extent that, even if their parents have permitted it, they can by no means testate by law. These indeed (ibid., sect. 1) are openly distinguished from impuberes.

821. • II. As regards heirs: 1. Those can be instituted as heirs who are not specially prohibited by positive law, although they lack the use of reason, as was said concerning donation, n. 802.

2. But from Roman Law there are prohibited those condemned to death, both natural and civil, traitors, and their spurious children, according to the restrictions to be placed below. But from Gallic Law, those are prohibited who cannot receive donations. - See above, n. 804.

3. Any heir can renounce an opened inheritance according to the axiom: No one is heir unless he wills. Thus from any law whatsoever. The reason is that no one is held to accept a benefit, of which sort especially is a testament, which is often burdened with great burdens. But renunciation is not presumed, but must be made with juridical form. From Gallic Law it is to be made in the record office of the tribunal of the territory in which the succession has occurred, and in the special codex of acts which is preserved there for this end.

822. Questions. - It is asked, 1. Of how many kinds is an heir distinguished?

I reply. 1. Legitimate, who succeeds by law from intestacy;

2. Necessary, who cannot be excluded by the testator;

3. Voluntary, who is called as heir from the free will of the testator.

Hence it is clear that one must also distinguish an heir from testament, if he has been designated by testament, and an heir from intestacy, if by law he succeeds the deceased who made no testament or an imperfect testament.

It is asked, 2. Who are necessary and legitimate heirs?

I reply, 1. In each law necessary heirs are all relatives in the direct line, namely: 1. descendants in the nearer degree; 2. in their absence, ascendants, both on the part of the father and on the part of the mother, likewise in the nearer degree. I reply, 2. Legitimate heirs are besides all blood relatives of the nearer degree also in the collateral line up to the tenth degree in Roman Law, that is, the fifth as regards canonical computation, and the twelfth from Gallic Law.

823. • It is asked, 3. What are the rights and obligations of heirs?

I reply. Generally heirs succeed to all the rights and burdens of the deceased, because they represent his person; only those things are excepted which by their nature or by pact were affixed to the person of the deceased. Hence they acquire the dominion of the goods of the deceased by full right, they take upon themselves his obligations and debts, and they must fulfill his will in legacies.

As regards the mode of paying debts left by the deceased, each pays in proportion to his hereditary portion, and if because of a hypothec they are compelled to pay more, they have recourse against the rest. - C.C. 873.

An heir can accept an inheritance under benefit of inventory, namely so that, once an inventory of goods has been made according to legal form, he is not obliged beyond the resources of the inheritance. If he has not accepted in that way, in the external forum he is held to pay all debts, even if they exceed the resources of the inheritance. But it is controverted among Theologians whether in this case the heir is held in the forum of conscience to pay debts as regards the excess beyond the goods accepted. - But more probably and more commonly this is denied. - Salmant. - Reuter. - Gousset, Code commente, art. 302.

824. • It is asked, 4. Whether necessary heirs can be disinherited?

I reply, 1. From Roman Law, sons can be disinherited by the sole authority of the father in the following cases: 1. if a son lays hands on a parent, or treats him contumeliously; 2. if he is his accuser or witness in criminal causes; 3. if he has relations with his wife; 4. if he refuses to stand surety for freeing the father from prison; 5. if he has prohibited the father from making a testament; 6. if a daughter, an honorable marriage having been refused, lives luxuriously ². - St. Lig., n. 948 and following.

² The Author enumerates only certain principal causes of disinheritance, and those more frequent in practice. But Roman law has altogether more (Novell. 115 and 22), since it enumerates fourteen in children, eight in parents, finally three in brothers, to whom otherwise the complaint of an undutiful testament would belong. These indeed you have comprised in these little verses (see Ferraris, Biblioth. Can. Iur. Mor., v. Exheredatio):

As regards children -

For fourteen causes let the son be disinherited: If he strikes his father, or speaks evil to him. If he neglects him thrust into prison, or mad, Accuses him of a crime, or prepares snares. If he has given grave damage, if he has not redeemed him from the enemy, And forbids him to testate, and associates himself with evil persons. If he follows actors, and violates the bed of his parents, If he changes the faith, if the daughter is a prostitute.

As regards parents -

If the father accuses of a capital crime, or Joins himself to his daughter-in-law, he has plotted against life, He forbids the son to testate, and prepares poison for the mother, Neglects one enclosed in prison or mad, And contemns the true Religion.

I reply, 2. From Gallic Law heirs can never be disinherited by private authority. Nevertheless, by law they are excluded from the inheritance as unworthy in a threefold case, namely: 1. if they plotted against the life of the testator; 2. if they denied him aliments; 3. if they gravely reviled his memory. - See art. Cod. 727, 955, 1046, 1047.

825. • It is asked, 5. What is the reservation or legitimate portion owed to necessary heirs?

I reply. It is diverse according to diverse laws. From Roman Law: 1. As regards ascendants, a third, or third part, is reserved if descendants are lacking.

2. As regards legitimate children, a third, if there are not more than four children; and a half, or half part, if there are more.

3. As regards natural children, they succeed to the mother by equal right with legitimate children. But they do not succeed to a father having legitimate children, although they can receive from him a twelfth part of the inheritance. But if the father lacks legitimate children, natural children can succeed to him in all goods ³. - See St. Lig., nn. 947-951.

³ The Author, as is clear, in this third paragraph mixes in certain things which do not pertain to the proposed question concerning the legitimate part. But the things which he has you will understand more clearly from Cardinal De Lugo (De Iust. et Iur., disp. 24, nn. 88-90) thus: First, it must be said that a natural son, legitimate descendants and ascendants being lacking, can receive from his parents (namely, by testament) all goods.... But by the same common law, when legitimate descendants exist, only a twelfth part of the goods can be given to natural children and their mother together by the father (by testament); but to the mother alone surviving can be given half of the twelfth part. Whence Covarruvias, whom Molina brings forward and follows, disp. 166, infers that to natural children, when their mother has died, the whole twelfth part can be given by the father. But when legitimate descendants are lacking, and legitimate ascendants exist, to whom by common law a third part of the goods is owed, the remainder can be given (by testament) to natural children.

Second, it must be said that natural children by the same common law, legitimate descendants being lacking, and no legitimate wife surviving, succeed by intestacy to the father in a sixth part of the goods, to be divided by equal parts among themselves and their mother, if she is surviving; but as regards the rest, the other heirs by intestacy succeed. If nevertheless either legitimate children or a legitimate wife remain, they succeed in nothing, but competent aliments are owed to them. But whether the same thing must be said when there are legitimate ascendants, that even then natural children succeed by intestacy in that sixth part of the goods, some deny; but Molina better affirms it in the said disp. 166. And these things which have been said concerning the succession of natural children by testament or by intestacy have place also in grandsons and great-grandsons with respect to grandfather and great-grandfather, and proportionally also have place in natural ascendants themselves, who succeed in the same way to descendants in the absence of descendants who are preferred to ascendants; which is true in the same way as regards aliments.

Third, it must be said: by the same common law natural children not only can succeed to the mother by testament, but also by intestacy in equal portions with legitimate children...; and the same must be said of the mother with respect to a natural son, succeeding in the same portion to a son who does not have descendants.

As regards brothers -

For three causes he may drive away an ungrateful brother: If he brings snares and destruction to his brother. If he invents crimes to be expiated by sword and fire, Or if he attempts to destroy his brother's wealth.

From Gallic Law, whether for a testament or for a donation among the living: 1. As regards the reservation owed to legitimate children, if there is one, half the goods is reserved; if two, two thirds; if three or more, three fourths.

2. As regards the reservation to be attributed to illegitimate children legally recognized, if other legitimate children are present, there is reserved to the illegitimate children a third part of the portion which they would have reserved if they were legitimate; if, children lacking, there are ascendants, brothers, or sisters, half of the aforesaid portion; but if there are only other blood relatives, three fourths of the said portion are reserved; if there are no blood relatives, they have the same reservation as if they were legitimate.

3. As regards the reservation owed to ascendants, if legitimate children are present, they have no right; if brothers or sisters are present, father and mother each have a right to a fourth part ⁴; the remaining ascendants are excluded by brothers. In the remaining cases they have a right to a second or fourth part, according as they are from each side or from one only ⁵.

⁴ These things seem to pertain to succession ab intestato according to articles 748-751. For in the hypothesis of a testament, the portion of which the son may not dispose is sometimes reserved to the father and mother alone, the brothers being excluded. See art. 915.

⁵ Perhaps the Author, following Art. 915, wished to signify here that if the father and mother are lacking, the other ascendants also have a right to the legitime, so that this portion is a half, or the moiety (and not a second part), if they survive from both lines at once; but a quadrant, or fourth part, if they survive from one only.

A wife does not come among necessary or legitimate heirs by intestacy, unless the remaining legitimate heirs within the degrees established by law are lacking. Thus from each law, namely Roman and Gallic. Nevertheless, on account of the very close bond between husband and wife, by natural law the testator must assign some part to the surviving spouse if that spouse does not have sufficient goods of his or her own. - Scavini. When even the wife is lacking, the State enters upon the inheritance by law. Hence the axiom: The fisc after all. Thus also in each law.

A natural son from Gallic Law must be recognized by an authentic act, unless he has been recognized in the very act of birth; but adulterine and incestuous children cannot be recognized.

826. • It is asked, 6. Whether by natural law a testator is held under grave sin to leave goods to relatives who are not necessary heirs?

I reply, 1. As regards brothers, affirmatively, if they are in grave necessity; otherwise, there will be only venial sin; indeed no sin, if the motive is reasonable. - Thus commonly. - St. Lig., n. 946. - Laymann. - Lugo..., etc.

I reply, 2. As regards other more remote blood relatives, according to the more common sentence there is not a grave obligation of preferring them to the rest, even if they are poor; nevertheless venial sin will not be lacking if they are passed over altogether without reasonable cause. - St. Lig., etc.

827. • It is asked, 7. Whether parents sin in the forum of conscience against justice if they injure the legitimate portion of children by testament, or donations among the living, or simulated contracts?

I reply affirmatively, of itself, with the more common sentence. The reason is that the law enjoys all the conditions required for obliging in the forum of conscience, namely, it is just, useful to the public good, and invalidating ipso facto. - Reuter, n. 286. - Gousset. - Bouvier.

I said, of itself, because parents do not seem to sin in any way who for a just cause partially injure the legitimate portion of children in some particular case. For then the end of the law ceases, which does not intend to touch those particular cases which profit the family and do not harm the common good; e.g. if a father were to bestow certain donations on an upright son by reason of remuneration, whence less would come to a dissipating son. - Gousset, n. 794.

After the fact, children who have accepted a greater part of the paternal inheritance, not without detriment to another heir, are not easily to be disturbed, when from the circumstances of things it can be conjectured that the parents favored them from some just cause; especially if they are in good faith, and it can deservedly be feared that they would refuse to fulfill the obligation. Indeed it seems to not a few theologians that civil law cannot so oblige parents to preserve equality among children. And so they of themselves exempt them from fault, if otherwise they have sufficiently provided for the honorable support of the children, and are not moved by a depraved end.

828. • It is asked, 8. Whether parents can pay out manual donations to some one of the children, or to outsiders, or to pious causes?

I reply. Parents can licitly make the following donations: 1. donations which are accustomed to be made among relatives and friends of equal condition, as little gifts, etc.; 2. remunerative donations according to the quantity and quality of merit, according to the estimation of prudent persons, because these ought rather to be called payment of some debt than a gratuitous donation; 3. any donations whatever, of themselves, from mere revenues, the capitals intact, which constitute the patrimony properly so called ⁶, because parents of themselves are held by no right to increase the patrimony from revenues or labor.

⁶ It by no means appears why a donation cannot also be made from those things which constitute the patrimony, provided the legitimate portion of the children is not injured. Lugo (disp. 23, n. 147) writes thus concerning this matter: "Parents, if they have donated undutifully, that is, to the prejudice of the legitimate portion of the children, their donations can be revoked by the children. Nevertheless the donation is not invalid, but can be annulled." And surely who would contend that a father of a family, having several farms, cannot give, for example, part of a garden (which surely is not computed among the revenues of the patrimony) or even a whole garden to the Capuchins, if this donation leaves the legitimate portion of the children intact?