Section — Noldin, Summa of Moral Theology
Section 1. On Hereditary Succession
552. Preliminary notions. 1. Hereditary succession is the right of succeeding to the goods and rights of some deceased person.
Hereditary succession is twofold: one is legal, or from intestacy, by which the right of succeeding to the goods and rights of the deceased arises from the disposition of law; the other is testamentary, by which the right of succeeding to the goods and rights of the deceased is acquired from the last will of the deceased himself.
Inheritance signifies the universality of the goods and rights of some deceased person.
Heir is said of the person representing the deceased, to whom belongs the right of succeeding to his goods and rights.
An heir can succeed to the goods of the deceased either wholly or in part; the former is an heir to the whole, the latter an heir in part; but each is said to succeed by universal title (n. 403, 3).
The legitimate portion is called that part of the inheritance which must be left to necessary heirs. Its quantity is diverse according to diverse codes.
- Modes of acquiring an inheritance. The right of inheritance can be acquired in a threefold mode: a. by hereditary pact (Erbvertrag), by which someone confers on another, for example, on a wife, a right of inheritance; b. by testament, by which someone declares whom he wishes to succeed him after death in his goods and rights; c. by succession from intestacy, which happens to children or relatives according to the order established by law, if someone dies without a testamentary disposition.
553. On heirs. A twofold heir is distinguished: an heir from intestacy, who, when no testamentary disposition exists, succeeds to the goods of the deceased from the disposition of law; and an heir from testament, who by force of the testament succeeds to his goods from the will of the deceased.
Some laws, for example Roman and French law, do not admit that an heir be instituted only for part of the goods and the remaining part come to heirs from intestacy; but others, for example Austrian, German, and English law, admit this.
Some heirs from testament are necessary, who by force of positive law must be instituted, except in a few cases in which they can be deprived of inheritance;1 others are arbitrary, who can be instituted heirs, but by force of law do not have to be instituted.
Necessary heirs are diverse in diverse laws, generally only legitimate descendants, sometimes also the wife.2
Some heirs are legitimate, who from law have the right of succeeding him who did not institute an heir but died intestate; others are extraneous, who do not have this right.
Therefore necessary heirs are also legitimate; but not all legitimate heirs are also necessary; but extraneous heirs are neither legitimate nor necessary.
1 Cf. C.A. Section 768 ss.; C.G. Section 2339, in which causes are enumerated on account of which someone can be deprived of inheritance.
2 C.A. Sections 765, 766; C.G. Section 2303 ss.
554. On the right of succeeding. By natural law there belongs to descendants the right of succeeding to the goods of the deceased, unless they have been legitimately excluded; therefore Sacred Scripture, from the persuasion of all nations, calls a son by that very fact also an heir: But if a son, also an heir.1
a. The several families out of which civil society comes together, by the disposition of nature itself, are conserved and propagated through an indefinite series of generations; but the conservation and propagation of families would be impossible unless the goods of the family, at least as to the greatest part, were transmitted from one generation to another, and did not either become the property of the first occupier or be occupied by political power; therefore, nature itself demanding it, descendants succeed to the proper goods of the family.2 Therefore all civil laws establish that members of a family succeed to the goods of a deceased person who died without a testament, and authors almost concede that this is demanded by natural law.
b. Therefore the same reason by which the necessity of private property is constructed also proves that children of the family by natural law succeed to the goods of their parents. Yet since by natural law only the right of succeeding is certain, it pertains to civil authority to determine more accurately those things which are indeterminate from natural law, for example, to establish the mode of succession, the quantity of the inheritance, the degree of kinship beyond which the family is considered extinct and therefore the goods of the deceased are no longer devolved to descendants, etc.
1 Gal. 4:7.
2 Cf. Theod. Meyer, Die Arbeiterfrage etc.^3 (Freiburg: Herder, 1895), who in chapter 8, Das Erbrecht und die Familie, developed this argument diffusely and learnedly. The same author, Institutiones iuris naturalis (Freiburg: Herder, 1900), II, n. 203 ss.; Carriere, l.c., II, n. 502 ss.
555. On acceptance of the inheritance and the obligation of the heir. 1. When the testator has died, the heir does not yet acquire the inheritance, but his acceptance is still required for acquiring it; nor is he bound to accept the inheritance, but he can also repudiate it.
- An inheritance can be accepted in a twofold mode: purely and simply, or under benefit of inventory (mit Vorbehalt der Rechtswohltat des Inventars).
He who accepts the inheritance in the former mode must pay by law all debts and legacies of the deceased; he who accepts the inheritance in the latter mode is not bound to pay the debts and legacies of the deceased beyond the powers of the inheritance.
a. Whether he who accepted it simply, without inventory, is bound in conscience to pay the debts and legacies of the deceased even beyond the powers of the inheritance is disputed. The opinion which denies that the heir is bound beyond the powers of the inheritance, not even after the sentence of the judge, is probable. Practically therefore the heir cannot be obligated in conscience to pay debts and legacies which exceed the inheritance; yet since this opinion is not certain, creditors and legatees are not prohibited from petitioning payment and retaining what has been paid.
b. In order that the reason of the controversy may appear, it must be noted that here there is question of a law which is founded on a presumption: for the law presumes that the heir who entered upon the inheritance without inventory accepted more goods than are required for satisfying debts. Now whether a law which is founded on a false presumption obliges in conscience depends on whether the false presumption is a presumption of fact or of law. Those who in our case release the heir from paying debts contend that the law is founded on a false presumption of fact, namely that the goods accepted in the inheritance in reality exceed the debts to be paid; but those who obligate the heir to paying debts judge that the law is founded on a presumption of law, namely on the common danger of deceit and fraud.1
- He who accepts an inheritance by that very fact assumes both the goods and rights and also the real burdens and debts of the deceased, provided they do not exceed the powers of the inheritance; but the personal rights and burdens of the deceased are extinguished with him.
Hence the heir is bound: a. to fulfill as soon as possible both pious and profane legacies; b. to pay the debts of the deceased as soon as possible. But if there are several heirs, each one is bound for that part which he accepted in the inheritance; wherefore if one afterward becomes unable to pay, the others are not obligated.
1 Cf. Bucceroni, Casus consc.^4, n. 17, 1.