§ II. On Testators and Heirs

I say, 1st. All who have the use of reason can be testators, except those who are invalidated by positive law. Moreover, the following are invalidated:

1st. From Roman law: deaf-mutes from birth, the non-pubescent, prodigals, those condemned to civil or natural death, and also professed religious.

2nd. From our law: only minors and wives. Nevertheless, as regards minors, it must be noted that they can make a testament concerning movables if they are pubescent, although in some States a restriction has been placed in this matter by the addition of four years, so that males can make a testament concerning movables only in the eighteenth year and females in the sixteenth year. Besides, the restriction by which wives are held has been greatly diminished in some States, provided nevertheless that certain formalities be observed. - Cf. Kenrick, n. 36. - Kent, Comment. vol. 4, nn. 505 and 506. - Devereux, lect. 68, nn. 6 and 8. - Wells, Every Man, etc., p. 93.

In several States the age for making a testament is the twenty-first year. Males and females of eighteen years can make a testament in the States: California, Connecticut, Idaho, Montana, Nevada, Oklahoma, North Dakota, South Dakota, Utah, Hawaiian Islands. Females only at the same age, that is, eighteen years, in Colorado, Illinois, Maryland, Missouri, Washington, Wisconsin, District of Columbia. Concerning property, as it is commonly called, personal, and concerning this only, persons of eighteen years can dispose in West Virginia, Virginia, Rhode Island, Oregon, Missouri, Arkansas, Alabama; in Georgia a person who is in the fourteenth year; in Louisiana a person who has completed the sixteenth year is competent to make a testament. In Colorado persons of seventeen years, and in New York males of eighteen and females of sixteen years, can dispose concerning personal property. Most States require two witnesses, but Connecticut three, Massachusetts three, Maine three, New Hampshire three, South Carolina three, Vermont three. The World Almanac, 1914.

I say, 2nd. All human beings who are endowed with life can be instituted heirs, provided they are not excepted by positive law. Moreover, the following are excepted:

1st. From Roman law, those condemned to death, both natural and civil, traitors, and their spurious children under certain restrictions.

2nd. From our law, witnesses of the testament itself, unless they are creditors; aliens as regards immovable goods; and colleges (corporations), unless they have a special faculty as regards this matter. Cf. Kent, Comment. vol. 4, nn. 506 and 508. Devereux, loc. cit. nn. 12 and 14.

Question 1. Of how many kinds are heirs distinguished according to the diverse laws?

Resp. There are three kinds of heirs: 1st, necessary, who cannot be excluded by the testator; 2nd, legitimate, who by law succeed from intestacy; 3rd, voluntary, who namely are called to the inheritance from the free will of the testator. - Heirs by testament are also distinguished, who namely have been designated by testament, and heirs from intestacy, if by law they succeed to the deceased who made no testament or an imperfect one.

Question 2. Who are necessary heirs, and who are legitimate?

Resp. 1st. Necessary heirs, from natural law, are the nearer blood-relatives and especially children, not however so that a father is bound to leave all his goods to children or to other nearer blood-relatives, even those not needy or disorderly, but insofar as by force of the piety with which he ought to regard them he is held to turn away their need and other evils. But from Roman law necessary heirs are all relatives in the direct line, namely: 1st, descendants in the nearer degree; 2nd, in their default, ascendants both on the part of the father and on the part of the mother in a likewise nearer degree. Finally, from our law, except the wife, to whom the legitimate portion or third part of immovable goods is owed, none are recognized as necessary heirs. Cf. Kent, Comment. vol. 4, n. 537, note (a). - Devereux, lect. 68, n. 36.

Resp. 2nd. Legitimate heirs are all blood-relatives of the nearer degree, even in the collateral line up to the 10th degree from Roman law, that is, the 5th as regards canonical computation. But from our law there is great variety in this matter, and each State has its own laws; these nevertheless agree as regards substance. Several rules are handed down by Kent, of which the sum is this: that the inheritance first descends to the children and their descendants even to the more remote degree, then comes to the parents, then to brothers and sisters and those who represent them, afterwards to grandparents, finally to the brothers and sisters of the parents of him who has died from intestacy. - But you may see those rules, if you please, in Kent, Comment. vol. 4, throughout the whole lect. 65, or a compendium of this at Devereux.

Question 3. What are the rights and obligations of heirs?

Resp. Any heirs whatever can renounce an inheritance according to the axiom: No one is heir unless he wishes, and as Kenrick says: "No act is required by which someone renounces an inheritance." - But with the inheritance now accepted, heirs succeed into all the rights and burdens of the deceased, because they represent his person, except only those things which, by their nature or by pact, were affixed to the person of the deceased. Hence they acquire by full right the dominion of the goods of the deceased, take upon themselves his obligations and debts, and ought to fulfill his will in legacies. - As regards the manner of paying debts left by the deceased, let each pay according to the proportion of his hereditary portion. Moreover, an heir can accept an inheritance under benefit of inventory, namely so that, once an inventory of goods has been made according to legal form, he is not obliged beyond the resources of the inheritance. - Cf. Kenrick, tract. 10, nn. 89 and following. - Kent, Comment. vol. 2, part 6, lect. 65, n. 422.

Question 4. Can necessary heirs be disinherited?

Resp. From Roman law, according to which children are admitted as necessary heirs, they can be disinherited by the authority of the father alone in the following cases: 1st, if a son lays hands upon his father or treats him contemptuously; 2nd, if he is his accuser or witness in criminal causes; 3rd, if he has relations with his father's wife; 4th, if he is unwilling to furnish surety for liberating his father from prison; 5th, if he has prohibited his father from making a testament; 6th, if a daughter, after refusing honorable marriage, lives wantonly. But among us, where children are necessary heirs only from natural law, the aforesaid causes and several others of the same kind seem a fortiori to suffice for disinheriting them.