§ 1. ON HEREDITARY SUCCESSION IN GENERAL

1069. DEFINITION. Hereditary succession is the acquisition of the right which the deceased had at the time of death, or in other words: it is the mode of acquiring ownership of the goods and rights of the deceased.

INHERITANCE, or the hereditary estate, is the whole right, or universality of goods, of the deceased, and comprises all his rights and burdens which are not merely personal. - Heir is called the one to whom belongs the right of entering upon the inheritance.

DIVISION. Hereditary succession is twofold. One is LEGAL, which is also called succession ab intestato; through this the goods and rights of the deceased are acquired from the disposition of law, without a testament. Another is TESTAMENTARY, and through this the goods and rights of the deceased are acquired from his last will, or legitimate testament. Of testamentary heirs, some are necessary: these cannot be excluded by the testator; others are voluntary, namely those who, from the free will of the testator, obtain hereditary right (III, 945).

In certain places, pactual succession is also admitted, through which the goods and rights of the deceased are acquired by a pact which he, while living, entered upon with the heir. To such succession what we are about to say concerning either legal or testamentary succession can easily be accommodated. Cf. German Code, 2274-2300; Austrian, 1217.

1070. PRINCIPLES. I. Hereditary succession is a mode of acquiring ownership which is rooted in Natural Law and is more distinctly defined in Positive Law. Thus the more common and more probable opinion. - The reason for the first is that domestic society cannot consist nor be perpetuated without the right of succession. For the perpetuity and vigor of families requires that children be able to perceive some benefit from the labors of their fathers. Now, when the right of succeeding is taken away, the principal stimulus which compels men to labor is taken away; every zeal for progressing in arts and in sciences is taken away; care for the family estate itself is taken away, since there is no one who would wish to treasure up for unknown persons. Similarly, when the right of making a testament is taken away, the father is reduced to the condition of a mere administrator, and his authority, so very necessary in his own family, decreases. - The reason for the second is that many things pertaining to successions are obscure or litigious, so that they can be defined by supreme authority alone. Likewise, there are many things which, on account of the common good, must be diverse for diverse circumstances of time, place, form of government, etc. But for the ordering of these, supreme power is required.

1071. II. Succession is opened at the very moment of death, in the place of the last domicile of the deceased; and possession of the goods is deferred immediately to the heir.⁰¹ Yet if the testator has appended a condition concerning the future, one must wait until it has been fulfilled, for example if a legacy has been made under this condition, that the legatee enter Religion.

In other places,⁰² the heir declaring the acceptance of the inheritance before a judge can immediately enter upon it. In others,⁰³ judicial immission is required. Let each one consult his own Law.

1072. III. When the inheritance has been opened, the heir is not held to accept it,⁰⁴ as the common axiom bears: NO ONE IS HEIR UNLESS HE WISHES. But acceptance, unless judicial immission is required, can also be made tacitly,⁰⁵ for example if the heir mixes himself in the affairs of the succession. But to decline the quality of heir, express renunciation is required, since this is never supposed.⁰⁶

So that the heir may be able freely to determine himself to acceptance or renunciation of the inheritance, a twofold benefit is conceded to him by law: 1. The RIGHT OF DELIBERATING for a certain time;⁰⁷ and when this has elapsed, from French, Italian, and Spanish Law, he can be compelled judicially by those whose interest it is, so that he may open his mind; but when no one contradicts, the time is prolonged to the years of the longest prescription.⁰⁸ From German Law, if the heir, after the six weeks conceded for deliberating, has not repudiated, he is considered to have accepted.⁰⁹ And here it must be noted that someone can renounce the quality of legitimate heir, and reserve to himself the quality of instituted heir; likewise, refuse a legacy offered under universal title and accept a legacy conceded under particular title. Renunciation effects that the quality renounced, and therefore the rights and burdens annexed to the same, are held as if they had never existed.¹⁰ - 2. The RIGHT OF INVENTORY, that is, the right of describing all the goods, credits and debts, of the deceased,¹¹ so that thus the state of the inheritance may be perfectly known. If among several heirs one demands an inventory, the others are held to consent;¹² indeed it must always be completed if the inheritance is deferred to an interdicted person, a minor, an absent person, or a moral body.¹³ Likewise, in Germany, it must be done if one of the creditors postulates this.¹⁴ Ordinarily nevertheless, in German law, there is no place for the use of inventory, since the heir can provide for himself in other ways. Cf. also what must be said n. 1084 ff.

1073. IV. The heir by entering upon the inheritance transfers into himself not only the benefits and rights of the deceased, but also his debts and real burdens. We say:

1. Benefits and rights, namely real rights; for personal rights, by which the deceased enjoyed, as usufruct, right of habitation, etc., are extinguished with him.

2. Debts and likewise real burdens, which each of the heirs is held to bear pro rata, unless the testator has determined otherwise.¹⁵ St. Alph., III, 961.

Let it be noted: 1. He who uses the benefit of inventory and duly and without fraud completes it obtains: a) that he is not held to pay debts beyond the powers of the inheritance, and that he can cede all the goods to creditors; b) that his own goods are not confused with the goods of the inheritance, and therefore that he can, like any other creditor, reclaim his credit and the expenses of his administration from the inheritance; c) that he has power to sell the immovables of the inheritance at public auction. The heir, or executor of the testament, is held at the end of his administration to render account to creditors and legatees; but all expenses, even for funerals and for appending seals, belong to the inheritance itself.¹⁶

2. He who neglects the inventory is considered by Civil Law to enter upon the inheritance purely and absolutely; and therefore he is held, even beyond the powers of the inheritance, to pay debts.¹⁷ But whether he is held to this also in conscience is controverted. The more common and more probable opinion denies it (H. Ap., II, 26; Marres, n. 271). Indeed grave authors add that the heir is not held to this even after the sentence of a judge, because such a sentence is founded on presumption of fact, namely of fraud on the part of the heir, as if he had omitted the inventory in bad faith, so that he might better hide everything. Cf. Lehmkuhl, I, n. 1398. Yet the creditor can use the favor of the law.

1074. V. If there are several heirs, partition of the inheritance is made: 1. amicably among those of age, present, and concordant, either through a private act or through an authentic act before a notary; - 2. judicially, if minors, interdicted persons, absent persons, etc., are present, or if litigation concerning the inheritance is moved.

On account of the excessive diversity of Laws it would be too long to explain each thing. We touch lightly on the more common things, referring to the Codes for fuller knowledge.¹⁸

The principal rule to be observed in partition is EQUALITY among the heirs. But equality would be injured in a threefold case: 1. in the case of anticipated acceptance, namely if one of the heirs had already accepted certain things from the deceased, by which his portion would increase beyond right; 2. in the case of lesion, namely if some object had not been estimated at a just price; 3. in the case of eviction, namely if one of the heirs were disturbed from the goods received in the partition. So that this threefold inequality may be excluded, against the first there is place for collation, against the second for rescission, against the third for assurance (Carriere, II, 535).

a) COLLATION is the act by which individual heirs refer to the sum of goods left to be divided those goods which they received from the deceased through donation between the living.

Hence, if a father has donated fields or a great sum of money to one or several children, for example by occasion of marriage, the other children, enriched by no similar gift, can demand that, in the division of the inheritance, account of donations of this kind be had (III, 954-960). Likewise it must be said if the father redeemed a son from military service, provided he did not do this for his own utility, that is, the father's, or for the family's utility.

Yet from collation are exempted: 1. Those things which the deceased gave by expressly exempting the heir from collation. 2. Ordinary expenses of education, that is, what was spent for food, clothing, instruction, books, academic degrees, benefice, nuptial costs, liberation from the penalty of prison or death, and customary little gifts. For these are considered less gifts than payment of a debt, since parents are held to supply these things to children. 3. Fruits of things to be referred which came to the donee before the death of the donor; for from the civil Code they are not owed except from the day of the opened succession. 4. An immovable good which perished by fortuitous chance without fault of the donee.¹⁹

b) RESCISSION is the act by which, on account of lesion of some party, a preceding partition is irritated, so that a new one may be instituted.²⁰ A simple passing over of some object in partition does not give place to rescission, but only to a new partition.

In the forum of conscience, every damage culpably inflicted must be repaired; but in the external forum, only that which is beyond the fourth part, if it is a question of mere lesion, force or deceit being excluded. But if force or deceit was present, any lesion of some moment suffices for obtaining rescission.

c) ASSURANCE is the obligation which lies upon all the heirs pro rata and in solidum, of making unharmed the coheir who has suffered eviction in the portion obtained. Yet it is required that the cause of eviction existed before the divided inheritance.²¹