Section — Prümmer, Manuale Theologiae Moralis
4. On Presumed Donation, or Intestate Succession
280. The right of succeeding. From natural law itself, which institutes the family, is derived the right of succession between parents and children, unless in a particular case that right is derogated for a legitimate cause. Therefore Sacred Scripture calls a son by that very fact an heir: "But if a son, then also an heir."66 Concerning intestate succession, almost the same thing is to be said as was proposed above, n. 4, concerning private ownership. Just as private ownership is necessary in the present order of things, since otherwise the public welfare could not be preserved, so also is intestate succession; for if children did not succeed their parents in the goods of the family, the bond and perpetuity of the family would be most greatly endangered. Therefore parents sin if without a just reason they disinherit a child or leave him only the legitimate portion. Nevertheless, some freedom is to be granted to parents concerning the disposition of their goods, especially in a case in which the children are disobedient and bring dishonor upon the family. This freedom is limited by civil laws in different ways for different regions. It is complete in England and in several States of the United States of America, where parents can dispose freely of all their goods.67 In Germany,68 Italy,69 and Austria,70 one half is disposable. In Spain71 parents are permitted to dispose at will of one third of their goods. In France the disposable part depends upon the number of children: if there is one child, the parents can dispose of one half; if two children survive, of one third; if three or more children are present, of one fourth of their goods.
Neither jurists nor theologians agree concerning the social utility and moral obligation of legal limitation in hereditary succession, some defending complete freedom of making a testament and others defending a legal reservation. There is no leisure to dispute which mode is better for social utility.72
A strict right of succeeding indeed does not seem to exist either among collateral blood relatives or between spouses, but from filial or familial duty they must often be assisted. Hence the following can be held as a general rule: almost the same obligation presses in life and in death. Therefore, just as in life we are gravely bound from filial or familial duty to assist near collateral relatives living in true need, so in death we ought to designate goods for relieving their need, insofar as this is possible while other obligations are preserved. This applies much more to the support of the surviving spouse, who is wont to be numbered among necessary heirs by modern laws.73
66 Gal. 4:7.
67 Cf. Tanquerey, De iust. n. 617; Slater, De iust. c. 6, a. 3; Stephen, Commentaries on the Laws of England II, 194.
68 Civil Code § 2203.
69 Civil Code art. 805.
70 Civil Code § 765.
71 Civil Code art. 2303.
72 Tanquerey, l.c., n. 719.
73 Cf. St. Alphonsus, Theol. mor. l. 3, n. 946.
281. Obligations of the testator and of the heirs.
1. Obligations of the testator.
a) By natural law itself the testator is bound to leave a suitable part of his fortune to children, spouse, and other relatives living in need. For this is demanded by the virtue both of filial or familial duty and of charity. For although neither children nor others have a strict right to the entire inheritance, nevertheless a fortune or private ownership pertains not only to the possessor but, after his death, in some manner also to his family. Well-ordered filial or familial duty and charity demand that a man have care for those of his household, especially the needy. Consequently the testator sins both against charity, against filial or familial duty, and against just civil law if, without a sufficient reason, he withdraws the inheritance due to necessary heirs, or if he makes an "inofficious testament."74
b) Sufficient reasons for withdrawing the legitimate portion from necessary heirs are not only those determined in the different civil codes,75 but also any other reasonable cause; e.g., if some necessary heir is disobedient and does not have so much need of the inheritance, the testator can distribute his legitimate portion otherwise.
c) More probably, the testator is not bound to restitution if by donations, squandering, etc., he has withdrawn the legitimate portion of necessary heirs. The reason is that, by disposing of his own things, he has not injured commutative justice.76
d) Unless truly grave reasons are present, it is highly expedient that the testator exclude no legitimate heir and withdraw nothing from the inheritance. Otherwise, great quarrels and enmities are wont to arise.
74 A testament contrary to duty and devoid of affection (pflichtwidriges, liebloses Testament).
75 German Civil Code § 2339ff.; Swiss Civil Code art. 477; French Civil Code art. 725ff.
76 Thus also Marc, Instit. theol. mor. n. 1083; Tanquerey, l.c., n. 725. Noldin, De praec. n. 562, teaches the contrary.
282. 2. Obligations of the heirs.
a) Necessary heirs cannot employ hidden compensation if their legitimate portion has been diminished by the testator. The reason is that they do not have a strict right to this legitimate portion, as has already been said. These heirs can, however, approach a judge, and then after a favorable sentence of the judge they obtain a strict right to the legitimate portion, in whatever manner it may have been injured, even by pious legacies.
b) Necessary heirs are bound to bring into the mass of the inheritance those goods which they already received during the life of the testator, unless, however, they received those goods by title of an entirely gratuitous donation. In practice, account must be taken both of the laws of the country,77 of legitimate customs, and of the intention of the testator. Hence it cannot be determined by a general rule whether expenses for studies, military service, marriages, and dowries must be brought into the mass of the inheritance or not. It is very fitting that heirs joined to the testator in an equal degree of relationship also obtain an equal part of the inheritance, unless the expressed will of the testator stands in the way.
77 Cf. German Civil Code § 2050; Swiss Civil Code art. 626ff.; French Civil Code art. 829ff.