Section — Konings, Theologia Moralis
§ I. On Hereditary Succession in General, or on Those Dispositions of Our Law Which Are Common to Every Succession, Both LEGAL and TESTAMENTARY
- What is generally required so that someone can be an heir. - It is required 1° That he be at least conceived at that moment at which he dies whose heir or legatee he is. Yet by substitution even one not conceived can be called to an inheritance or legacy. Thus, for example, a disposition is valid by which someone leaves his goods or some good of his to someone with the burden that someone from the descendants of this one inherit them.
2° That he not be incapable by law.
- Rights of heirs. - 1° They acquire dominion of all goods, rights, and actions of the deceased by the very moment in which the latter dies, and without its being necessary that they declare that they wish to acquire that dominion, and even if they are ignorant that they are heirs. Yet this acquisition of dominion is not to be confounded a) with actual possession of the same, which is procured through the executor or administrator of the inheritance; b) with acceptance of the inheritance; for it can be repudiated.
2° They have the right to seek the inheritance (i.e. to recover the goods and rights of the deceased) from all who detain it or part of it.
- On the adition and repudiation of inheritance. - According to the axiom of law: "No one is an heir unless he wills it." Therefore no one is bound to enter upon or accept an inheritance. Among us, with common law considered,1 no act is required by which someone repudiates an inheritance; it suffices that he neither seek nor enter upon the inheritance within the time established for the prescription of his right; and when this time has elapsed he falls from his right, even if he did not know that he was an heir.2
- What pertains to the inheritance. - To the inheritance pertain:
As burdens: a) debts and real burdens of the deceased; expenses of burial and funerals; and also those which are joined with the execution of the testament or administration of the inheritance. b) Legacies.
As goods: a) goods and rights of the deceased; b) all things which are subjected to collation. But collation is the act by which one of the heirs brings back to the sum of goods which the testator left to be divided among the heirs those goods which he received from the deceased by donation inter vivos, so that they may be divided equally among all. "If therefore a father handed over to a daughter, on the occasion of marriage, fields, or houses, or a great abundance of money," or a dowry sufficiently notable so that she might enter a monastery; "or if he conferred gifts of this kind on a son, in order to provide for him; the children who remained with him, increased by no gift, can require that account be had of them in dividing the inheritance. Those who received those things from the father will indeed be able, by renouncing every right, to abstain from entering upon the division; but if they wish to claim anything beyond for themselves, only that will be owed which must be added so that the portion of all may be equal."1
Yet from collation are exempted a) those things which the deceased gave, by expressly exempting the heir from collation, or by title of special right (by benefit); b) expenses of nourishment, education, nuptials (wedding), learning an art or science, and similar things, unless the contrary intention of the deceased is clearly established; c) manual donations, unless they are of greater moment; d) fruits of things to be brought back, which the donee perceived before the death of the testator up to the day on which the succession was opened; e) money used for redeeming a son from military service; for since this has place among us only in time of war, and it would be hard for a son to be exposed to the dangers of war before the other co-heirs, as if at his own expense, the father must be presumed, unless the contrary is clearly established, to have exempted this money from collation; f) those things which the son dishonorably spent from paternal goods, for example in games, drinking-bouts, etc., if he did not spend more than the father would have been content that he expend on honorable recreations. L. IV. 954-959.
For Louisiana see, if you wish, Civil Code of Louisiana.2
- Original force of hereditary succession. - Much agitated among Authors is the question concerning the original force of hereditary succession; namely whether succession, whether from intestacy or from testament, repeats its force of transferring dominion originally from natural right; or rather from positive human law, so that, this law being excluded, the goods and rights of the deceased would of themselves become things of no one. - It suffices for us here to explain in a few words what seems more probably to be held about this matter.
A) As to succession from intestacy. - With attention both to the nature of property, and to the character of parental society and family, and also to the exigency of public order, we judge that it must altogether be resolved that this succession borrows its original force from the law of nature, especially indeed where it is a question of succession by which the nearest blood-relatives succeed to deceased blood-relatives, say, by which children succeed to deceased parents.1 - Yet, since the law of nature directs succession from intestacy only in general and as it were indefinitely, and consequently leaves many things in this matter to be more specified and determined by positive law; hence you will also rightly say: succession from intestacy repeats its force of transferring dominion principally from the law of nature, and secondarily from positive human law, as that by which the natural force of succession seems to have become better ordered and much more valid.
B) As to succession from testament. - We defend with Grotius,2 whose opinion is called by many the more common and more probable, that any man, not legitimately impeded, can by natural right validly dispose of his goods through testament, and consequently also that testamentary succession borrows its force of transferring dominion principally from the law of nature, and not from human law alone; although nevertheless it belongs again to the human legislator in this matter to order those things which are necessary so that affairs may be carried out in the due mode and order. "Although," says Grotius in the place cited, "a testament, like other acts, can receive a certain form from civil right; yet its very substance is cognate to dominion, and, this being given, is of natural right. For I can alienate my thing not only in a pure manner, but also under a condition; and not only irrevocably, but also revocably, and also with possession and the fullest right of enjoying retained meanwhile. But an alienation for the event of death, revocable before it, with the right of possessing and enjoying retained meanwhile, is a testament.... By this right Abraham, if he had died without children, would have left his things to Eliezer, as the place of Genesis indicates.3 But that in some places it is not conceded to foreigners to make a testament is not from the law of nations; but from the proper law of that state, and, unless I am deceived, coming from that age in which foreigners were held almost as enemies: and thus among the more civilized peoples it has deservedly fallen out of use."
- Indeed it is necessary to confess that the proposed opinion concerning the natural force of testamentary disposition is not admitted by some Theologians and Jurists, who on the contrary contend that a testament, or last will, does not have the force and efficacy of transferring dominion from natural law, but only from positive human law; and they strive to prove their assertion by the following argument, sufficiently celebrated today:
For the translation of dominion, by natural right, it is required that the owner will and be able to transfer his thing into another;
But a testament, from its character, excludes this requisite, since the testator does not will to transfer his thing into another before death, and after death he is not able;
Therefore a testament, by natural right, is inept for the translation of dominion; and therefore if any force is to be ascribed to a testament, it must be repeated from positive law alone.
But in truth these Authors seem to effect nothing by aphorisms of this kind, since they do not at all attend to the nature of donation under a suspensive condition, concerning which Grotius speaks in the place cited; for when this is attended to, it would rather be necessary to argue thus in favor of our opinion:
For the translation of dominion, by natural right, it is required that the owner be able and willing to transfer his thing into another, either absolutely and actually, or under a condition;
But a testament, from its character, includes this requisite, since the testator at that very moment at which he makes the testament is able to transfer his thing into another and in fact also wills it, namely: under the suspensive condition of death.
Therefore a testament by natural right is not inept for the translation of dominion.
But the aforesaid Authors insist by producing this other argument:
At least, for the translation of dominion, by natural right, it is required that the will of the one accepting be united with the will of the one transferring;
But, in the case of testament, the will of the one accepting is not united with the will of the one transferring, who, at the time of acceptance, is dead;
Therefore, in the case of testament, by natural right there is no translation of dominion.
But this argumentation also seems very weak, as not distinguishing between actual and virtual union of wills. For suppose that in the case of testament an actual union of wills is not given; certainly, nevertheless, a virtual union is given, since the will of the one transferring, in the testament itself, according to common estimation (which I think is founded in faith in the immortality of the soul) is judged to persevere at least virtually. But it can by no means be proved that such a virtual union, in the case of testament, does not suffice by natural right; indeed, that this union in reality suffices is sufficiently established from the fact, most worthy of note here, that the usage of Nations and the very natural inclination of all men have always judged the last will of the deceased to be sacred and to be pursued with special honor.
Moreover, whatever may be the value of the opinion impugned by us, this still deserves to be noted at least for history:
All supporters of Communism have eagerly embraced the doctrine of deriving the force of succession from human law alone, as favoring their system more. For once this doctrine has been admitted, they seem to demand for themselves by so much greater right that the Civil Power at last take away from succession the force and efficacy which it previously attributed to it, and thus finally at some point recognize and promote the desired community of all goods. But what, I ask, would be the voice of all Theologians, as many as there are, if the civil power were to satisfy this wish of the Communists? Would not all with one mouth declare that an indulgence of this kind of the civil power is utterly to be condemned and injurious to citizens? But by what reason could that indulgence be called injurious, unless it is admitted that the force of succession is principally derived from the law of nature!
Thus acutely the distinguished Van Egeren, from whose illustrious Notes I have copied almost word for word these and many other things concerning Donations, Hereditary Succession, and Buying-Selling.