Question Five: On Legal Succession

504. Legal succession, or succession ab intestato, is the transmission of the goods of the deceased to one or several persons according to the order defined by law. For when someone does not dispose integrally of his things by donation or testament, the goods which remain pass to natural heirs by way of succession confirmed or established by law. Yet this succession is reduced to donation and testament: for there is present in itself a presumed donation which the law supposes and recognizes.

505. Legal successors are called to the inheritance in a certain order. - First there must be distinguished regular heirs, who by the fact itself succeed to the person of the deceased and immediately acquire all his rights, provided they take upon themselves the burdens of succession; and irregular heirs, who are placed in possession of the goods by a judge.

Regulars, however, can succeed in a threefold way: by heads (par tête; hoofdsgemijze), by stocks (par souche; staaksgewijze), and by lines (par ligne; stamsgewijze). They succeed either by their own right, that is, on account of a personal degree of consanguinity, or by right of representation, because they have obtained the right of their deceased parent. Now there are five orders of regular heirs, so that there is no transition from one order to another unless the heirs of the prior order are entirely lacking.

A. As regular successors there are called to the succession:

1. Descendants of the deceased, namely: legitimate or legitimated children (a. 331-333), or recognized natural children (a. 756), or adoptive children (a. 350), and indeed by heads; then grandchildren, etc., but by stocks (a. 745).

By French and Belgian law, legitimate children divide the inheritance equally among themselves, because they succeed by heads. If one of them has died, his posterity are called to the inheritance by representation and succeed by stocks (a. 745). Recognized illegitimate children obtain only the part of the inheritance determined by law (a. 756-761), if legitimate heirs survive, as was said in n. 501. An adoptive child receives the part of a legitimate child (a. 350).

2. In default of descendants, the father and mother of the deceased are called together with his brothers and sisters, according to the proportion defined by law.

By French and Belgian law, 1/2 part yields to the parents, the other to the brothers and sisters; if only the father or mother survives, 1/4 part yields to this one, 3/4 to the brothers and sisters (a. 748-752).

3. In default of descendants and parents, the brothers and sisters of the deceased divide the whole inheritance among themselves in the way defined by law.

By French and Belgian law they succeed by heads if they are of the same bed; otherwise by lines, so that full siblings participate from both lines (a. 750 and 752).

4. If descendants, parents, and brothers and sisters are lacking, the succession devolves to ascendants, and indeed by lines, so that the nearer paternal ascendants divide one half part among themselves, but the nearer maternal ascendants divide the other among themselves (a. 746-749).

But if one of the two lines of ascendants has become extinct, 1/2 part is divided among ascendants, the other among collaterals of the other line (a. 753).

5. If descendants, brothers and sisters, and also ascendants are lacking, the inheritance passes to collaterals (a. 750 and 755) up to the degree defined by law.¹

¹ The orders are distinguished somewhat otherwise in German law (a. 1924 sq.), namely: 1. descendants of the deceased; - 2. parents, so that the descendants of the deceased parents or of one deceased parent hold their place; - 3. grandfathers and grandmothers, or likewise their descendants, to whom, however, the surviving spouse is preferred; - 4. great-grandfathers and great-grandmothers, in the same way as was said in 3; or in their default those nearest in kinship to the deceased; - 5. great-great-grandfathers and great-great-grandmothers, in the same way as was said in 4.

From the Belgian law of October 11, 1919, a. 47, blood relatives beyond the 4th degree do not succeed, unless they are called by representation; but representation is admitted in the direct line indefinitely, while in the collateral line it is admitted for the descendants both of the brothers and sisters of the deceased, and of his paternal or maternal uncle, paternal aunt or maternal aunt (Civil Code, a. 742 modified). - The French law of December 31, 1919, excludes collaterals beyond the sixth degree from succession, unless they are descendants of a brother or sister: then succession reaches as far as the 12th degree. The Dutch law of February 17, 1923, establishes almost the same. By Italian law collaterals are not admitted beyond the 10th degree.

B. There are two irregular successors:

1. The surviving spouse, provided he or she has not been judicially separated from bed from the other spouse, obtains the whole inheritance in default of the above-mentioned heirs; but if he or she does not obtain the whole inheritance, he or she acquires the usufruct of a certain portion of the goods (a. 767), as was said in n. 501.

By Italian law, the spouse, in default of children, has the right to a fourth or third part of the inheritance; if parents, ascendants, brothers and sisters also are lacking, to 2/3 parts, indeed to the whole if the relatives are more remote than the sixth degree (a. 754). By English law, the wife receives 1/3 part of the goods of the intestate husband, if he leaves descendants; otherwise as stated below.² By German law (a. 1924-1931), the surviving spouse in the first case receives only 1/4 part, in the second 1/2 of the inheritance and household goods; in default of ascendants, the whole.

² In the individual States of the United States of America the law is diverse. By English law, immovable and movable properties are distinguished. An immovable, if there is no offspring, is deferred to the nearest male heir; but if there is offspring, it is attributed to the eldest son or, if he has died, to his son; in default of all male offspring, dominion is assigned jointly to all the daughters. - Movables, in default of testament, are so divided that the third part falls to the widow, and both remaining parts to the children without distinction of sex. - If the wife herself dies without testament, her patrimony is attributed to the husband, or if he has died, to the progeny.

2. The State or public treasury (the fisc), which, in default of other heirs, natural or instituted, obtains all the goods (a. 768).

506. The following are excluded from the inheritance:

1. by reason of incapacity, and indeed by the fact itself, provided it exists at the moment when the succession begins: a) those not yet conceived; b) those who are born not viable; c) those who at the time when the succession began were already dead (a. 725);

2. by reason of unworthiness: a) those who were condemned for the perpetrated or attempted killing of the deceased; b) those who brought against the deceased a calumnious capital accusation, which was judicially declared as such; c) those of age who did not report to the judges the killing of the deceased known to them (not the killer), unless nevertheless they are excused from reporting as relatives or relatives by marriage of the killer (a. 727-728). Yet the children of the unworthy are not excluded, unless they succeed by representation (a. 730).

All the aforesaid are disinherited not by the fact itself, but only after the sentence of a judge.

507. Option of accepting and repudiating succession. - No one is bound to accept a succession, but he can repudiate it: for no one is an heir unless willing; whence no one succeeds except after he has accepted. But he can accept the succession either simply, or under benefit of inventory, or repudiate it (a. 774).

A. He who accepts simply, whether explicitly, by assuming the name of heir in an authentic or even private act, yet in such a way that it clearly stands that he accepted the succession; or implicitly, by placing an act which necessarily imports the will of accepting (a. 778-780):

1. immediately acquires all the rights of the deceased and can dispose of them (a. 777);

2. takes upon himself all burdens, even beyond the powers of the inheritance, so that he is bound to pay debts not only from the goods of the succession but also from his own. This last, however, does not seem to have force in the forum of conscience, at least before the sentence of a judge, which in the case rests upon a false presumption of fraud;

3. he accepts irrevocably, except in cases excepted by law, namely, when the acceptance was obtained by fraud, or when the inheritance is diminished by more than one half because of the discovery of a testament unknown at the time of acceptance (a. 783).

B. He who accepts under benefit of inventory must expressly declare this and have the declaration inscribed in the register of the tribunal (a. 793):

1. he receives only the administration of the goods, until the matter has been placed in a clear state and the burdens have been satisfied (a. 803);

2. he must take care that an inventory be made (a. 794); for making it three months are conceded, and besides 40 days for deliberating for acceptance or not (a. 795);

3. once the inventory has been made, he is not bound to pay burdens beyond the powers of the inheritance; indeed, he can free himself from every obligation by leaving all the goods to creditors and legatees, and he has the right of exacting payment of all things which are owed to him by the succession (a. 802).

C. He who repudiates the succession, which is not presumed but must be expressly declared in the same way as acceptance under benefit of inventory (a. 784):

1. is considered never to have been heir, whence his portion accrues to co-heirs of the same order, and, these lacking, devolves to the subsequent degree (a. 785-786);

2. is freed from paying debts, but creditors thereby injured can obtain from the judge that they accept the succession in his place; in which case the renunciation is invalidated only in favor of the creditors and for that sole end, that the things owed to them be paid (a. 788);

3. can retain gifts and legacies made to him, if they do not exceed the disposable part (a. 845).

Sometimes it is expedient to accept simply, when it is morally certain that the succession is not burdened beyond the powers of the inheritance: for thus many expenses are avoided. In doubt, it is better to accept under benefit of inventory. Finally, it is fitting to repudiate if it is morally certain that the inheritance is burdened with burdens which exceed the resources, or if a donation of great value previously made would have to be lost or notably diminished because it would have to be brought back to the common mass.

508. Partition of inheritance and collation of goods. Partition, in order to avoid lawsuits, can be made by the ascendants themselves in their life, under the form of donation or testament (a. 1075-1080), provided the rules of law concerning reservation and succession are observed. But if no partition has been made by the parents themselves, it must be instituted after their death, unless the co-heirs agree that it be deferred for a time; according to French law, this cannot exceed a five-year period, yet in such a way that, once this has elapsed, the agreement can be renewed. But lacking such an agreement, no co-heir can be compelled to remain in undivided possession (a. 815).

But in order that relative equality be preserved among heirs, sometimes it is prescribed by law that a collation of goods be made (a. 843 sq.: rapport; wederinbreng). It consists in this, that each one must bring back to the common mass of the inheritance whatever he himself has received from the deceased by donation or testament, unless, however, the donor explicitly said that these things were not to be brought back, and at the same time they do not exceed the disposable part (a. 844 and 846), or the law itself has otherwise disposed.

Therefore it is the heir or legatee himself who is bound to collation, not his son, not his father, not his spouse, unless these act by representation (a. 847-849). But the law exempts from collation: 1. expenses of education (a. 852), namely those necessary for learning an art or trade, or nuptial expenses or customary gifts; but not expenses made for procuring some office or state of life (frais d'etablissement, a. 851), or for paying debts (a. 851); - 2. fruits and interest of the donated thing, which were received before the death of the donor (a. 856); - 3. immovable things which perished without fault of the donee (a. 855).

509. Whether the obligation of collation which is imposed by civil law has force in conscience? - It is answered:

1. For those things which the donor wished to give absolutely, the obligation of collation having been remitted explicitly or implicitly and the legitimate portion of necessary heirs being preserved, there does not exist an obligation of collation before the sentence of a judge; for example, if the deceased attributed a great sum of money but with the recommendation that this donation never be manifested to the other members of the family. After a sentence of the judge by which collation of such goods is imposed, there is an obligation of justice even in the forum of conscience, because the donation is declared invalid.

2. If the donor's will of remitting the obligation of collation is clear by no probable reason, collation must be made, at the petition of the heirs, even before the sentence of a judge: for civil law attributes this right; if the heirs do not petition, collation need not be made, unless nevertheless the donee has expressly obligated himself to making it.

3. Sometimes parents enter into a contract with their children that there be subjected to collation that which by force of civil law alone does not fall under it, for example, expenses for education which are truly extraordinary in comparison with the other children. A contract of this kind is in itself valid; nevertheless minors are not definitively bound by it unless, after attaining majority, they have ratified it. Thus, for example, concerning expenses for studies in a Seminary or University.

510. Remarks. - 1. Rescission of partition (verbreking). A partition once made can be rescinded: a) on account of force and fraud; 2) when one part is at least notably injured: according to the French code it is required that the injury exceed the fourth part of the portion which ought to have been attributed, according to the value at the time of partition (a. 887).

In the forum of conscience, every unjust injury must be repaired.

2. Guarantee of partition (garantie des lots; vrijwaring). To preserve equality, law establishes that if one of the heirs suffers total or partial eviction of the goods which had fallen to him, or is disturbed in their enjoyment, the other heirs are bound to hold him harmless, provided that a) the cause of eviction was prior to the partition, and is not to be attributed to the fault of the evicted heir; b) this eviction was not exempted from guarantee by an explicit clause of the act of partition (a. 884).

3. Proportion to be observed in the payment of debts. From natural and civil law, every heir must concur in the payment of the debts of the deceased according to the proportion of those things which he received from the inheritance (a. 870).

In the case in which one has received an estate subject to mortgage, creditors can compel him to pay the whole debt by which the estate is burdened; but then he himself has recourse against the other heirs for recovering the part owed by them (a. 874).