§ 2. ON LEGAL SUCCESSION

1075. Things to be noted beforehand. 1. A legitimate heir can succeed either by his own right, that is, on account of the right which the personal degree of consanguinity confers, for example when a son succeeds a father; or by right of representation, that is, on account of the right which he obtains because, substituted in the place of another, he is held as taking the place of that person's person with respect to the succession to be occupied. Thus grandchildren are called in place of a deceased father to the succession of the grandfather.²²

Commonly, the right of representation is admitted only in favor of descendants, both from the deceased himself and from his brothers.²³ In AUSTRIA, however, it is extended to all heirs;²⁴ in GERMANY to the first three orders.²⁵

2. Succession is either by heads, when namely the inheritance is divided equally according to the number of persons, or by stocks, when the division is made according to the number of stocks, which then happens when someone comes by right of representation; or finally by lines, when the inheritance is divided into two parts, one of which is allotted to the blood relatives of the paternal line, the other to the blood relatives of the maternal line.²⁶

1076. The RULES of legal succession are chiefly the following:

I. When a valid testament is lacking, the law itself determines the mode of succession, with consideration both of the common good and of the presumed will of the deceased.²⁷

II. Commonly the right of succeeding belongs to all who are joined to the deceased by a bond of kinship, not only natural, but also civil, that is, through adoption.²⁸

III. Those joined are divided into various orders,²⁹ of which the prior excludes the later, so that heirs of a subsequent order do not come unless any heir of a preceding order is lacking.

IV. Among heirs of the same order, division is made according to special rules, which among various peoples are established variously, just as the constitution of the orders itself is various.³⁰

Here are the more common rules:

1. Descendants³¹ constitute the first order; if they are lacking in the first degree, their children come by right of representation. Parents³² come in the second order, in some places alone, in others together with the brothers of the deceased, or the children of these, by right of representation. - Ascendants in a more remote degree³³ come in some places in the same order with parents, elsewhere in a subsequent order.

2. Brothers³⁴ are privileged among all collaterals: they come in a special order, and those who descend from them enjoy the right of representation. Full brothers,³⁵ or bilaterals, have broader privileges than consanguine or uterine brothers, or unilaterals.

3. The surviving spouse³⁶ is regularly computed among legitimate heirs, not in a determined order, but with heirs of any order, for his or her own part. Thus, for example, in ENGLAND a wife receives the third part of the goods of her intestate husband if he leaves descendants; otherwise half.³⁷ - In GERMANY she receives in the first case only the fourth part, in the second half.³⁸ In AUSTRIA a spouse, if there are three or more children, succeeds with them into an equal part, but only with respect to usufruct. If, in defect of descendants, a legitimate heir is present, the spouse receives the fourth part in ownership; if none, he or she succeeds into the whole inheritance.³⁹

4. Natural⁴⁰ and spurious children do not enjoy the same rights as legitimate or legitimated children. With respect to the father, they are either restricted to food alone or obtain a greater or lesser portion according to the diversity of the order in which heirs come from legitimate kinship. With respect to the mother, natural children succeed as legitimate, and spurious children can probably retain what they accepted from the mother.

5. Everywhere the treasury⁴¹ comes after all, that is, when any other heir is lacking (cf. n. 884).

6. As incapable, he who at the time of the opened succession was not conceived, or was not born viable, is excluded from legitimate succession; similarly he who is civilly dead. Cf. n. 1042, 3. A child whose parents are related in an indispensable degree likewise, by common Law, is not admitted to succession as incapable. Pruner, Moraltheol., p. 634 and 638.

7. As unworthy, he who is proved guilty of an enormous offense against the deceased is excluded.⁴²