Article II. Conclusion and Supplements to the Doctrine

Nature itself requires that there be among men some right of inheritance.

Indeed, as regards their substance, both the right of making a testament and the hereditary succession of the family seem to be sanctioned by nature.

Regularly, however, the right of the family is subject to the will of the deceased.

224. I. State of the Question. 1. THE INTENTION OF THE THESIS is that the manner in which inheritances proceed from nature be accurately defined. Hence we have made the conclusion threefold. In the first part, which we hold as certain, we contend that it is owed to nature that there be some inheritances. In the second, we assent to the opinion of those who trace to nature itself both the efficacy of the last will and also the proper right of the family to succeed to the goods of the deceased. Yet lest one right appear contrary to the other, in the third part we shall endeavor to establish that the right of making a testament is the principal one, so that it can regularly annul the right of the family to take the inheritance.

2. THE TERMS ARE EXPLAINED.

Nature itself requires, and consequently confirms the institution by its authority.

That there be among men, after political society has been entered upon and even before it, as soon as the division of things is demanded by the multitude of men.

Some right of inheritance, that is, that there be those who, whether by testament or intestate, can claim as their own the goods of a deceased person. We do not define the matter further; nor do we here demand both modes of entering upon an inheritance at once, but we are content with either one.

Indeed: we now contend for more.

As regards their substance, for no one doubts that most determinations must be supplied by positive law.

Seem to be sanctioned by nature; we therefore propose these things as less certain.

Both the right of making a testament. We take testament broadly for every act by which someone's last will concerning his goods, whether all of them or only some, is signified, in such a way that no acceptance is required while the testator is alive and every effect is deferred to the first moment after death. Moreover, this definition sufficiently accords with the rationale of a testament in French law, art. 895, and German law, art. 1937; whereas in Roman law there was no testament unless someone instituted an heir and pronounced his judgment concerning the whole patrimony.

And the hereditary succession of the family. Therefore, we recognize in the family itself a title for entering upon the inheritance which, proceeding immediately from nature, rests upon no presumed will of the deceased. Moreover, by family we understand all persons closely joined by blood or marriage, especially those who are accustomed per se to dwell in the same house.

Regularly, however, unless positive law or a strict duty of piety stands in the way.

The right of the family is subject to the will of the deceased. Therefore, although the goods devolve upon the family even without the presumed will of the owner, nevertheless, by a contrary will of his—at least one which has been lawfully declared—it comes about that the goods pass to others or are to be employed for another end.

225. A. OF THE FIRST PART. Nature itself requires that there be among men some right of inheritance. For:

1) If this right were suppressed, the goods of the deceased would either be regarded as abandoned or be assigned to the fisc. The former, as is readily apparent, cannot stand with the peace and order which nature wills to flourish in the city. For there would be infinite desires, contentions, quarrels, and disturbances over occupying those vacant goods. Hence even modern law is accustomed to provide that immovable things which lack an owner should in reality pass to the fisc. But the latter, by which those goods would be assigned to the fisc, would soon introduce a community of goods such as, in the present circumstances of men, we have shown to be disapproved by nature itself. It remains, therefore, that nature sanctions some right of inheritance.

2) Furthermore, that form of property is sanctioned by nature which adds incentives to industry, labor, and thrift. But if there is no hope of leaving goods to one's relatives, who does not see that these pursuits will altogether languish?

226. B. OF THE SECOND PART. Indeed, as regards their substance, there seem to be sanctioned by nature:

1. Both the right of making a testament.

For, as Rev. Fr. Cathrein elegantly argues, if this right were suppressed, the good proper to the person, the family, and society, on account of which property is necessary, would not be sufficiently obtained. Individual persons—at least those who lack children—would scarcely be incited to a frugal and industrious life;—the suitable accommodation of goods to the needs of the family demands a varied distribution of the patrimony: how will this be accomplished except by the testament of the parents, by which a salutary confirmation and sanction of paternal authority is obtained at the same time?—finally, among the expenditures through which riches benefit the whole society, expenses for a pious end or for general utility hold no insignificant place: but who would wish to set aside money for uses of this kind unless he could define by testament upon what work it is to be expended?

2. And the hereditary succession of the family.

For although we readily grant to Rev. Fr. Cathrein that, while the father of the family is alive, not even the children possess per se some part of the patrimony together with their father, nevertheless we contend that there is a natural substitution of the family into the place of the deceased owner. For:

a) At least in children, who does not see a natural continuation of the person of the parents? But does not this continuation of the person per se demand the continuation of the possessions which were joined to the person as something accessory?

b) Indeed, all blood relatives represent a common ancestor. Hence the moral unity of the family, a certain community of praise and reproach, of guilt and merits. Is it not easy to conclude from these things that there exists a certain society of patrimony, by which it comes about that, when the owner has died, these goods are to be assigned to those same blood relatives who, while the owner was alive, were—as all acknowledge—to be assisted from them before strangers?

c) From one patrimony are supported those who are most closely joined to the owner; and by the same patrimony it is chiefly brought about that the family obtains a definite rank in society. These things being posited: α) If hereditary succession is suppressed, unless provision has been made for the family by testament, the family will of itself be cast down from its rank. But ruins of this kind, as adverse to the common good, cannot per se arise from an order established by nature. Therefore, nature demands such an order in which there is hereditary succession of the family. β) Nor, when the owner has died, can these goods be said to be referred no more to the family than to strangers. For in act they were for the use of the family. But to the subjection of an inferior thing there corresponds a certain precedence of the person, a certain intention of exercising dominion, which, from being imperfect, passes upon the death of the owner into an absolute intention. To state it briefly: the goods were already so joined to the family that nothing seemed to stand in the way of true occupation except the prevailing right of the one by whom they were properly possessed. When this obstacle is removed, the occupation itself is perfected. Hence it can also be argued in this manner:

For the reasons given, from the personal conjunction with the owner and the very use of the goods, it is known that nature has brought it about that the family is in the preferable position as regards the patrimony of its ancestor, since his goods are already bound to the family itself by a special bond.

Since these things are so, when the owner has died intestate:

Either that bond must be broken, or it must be confirmed by succession being granted.

But the former is violent, is opposed to an order already established, and is contrary to the common good. It remains, therefore, that the latter is instituted by nature. Moreover, this is confirmed by the fact that the use of a vacant thing, if the intention of an owner is added, is customarily a title of right (no. 215). Therefore, if, when the owner has died, those most closely joined to him wish to possess things already assigned to them in some manner, this will suffice for them to obtain a perfect title of right.

227. C. OF THE THIRD PART. Regularly, however, the right of the family is subject to the will of the owner.

This is readily evident, because he whose property the things are retains per se the complete faculty of disposing of his goods. It is also evident because, once the natural right of making a testament has been proved, in order that a contrariety of rights be avoided, one must be able to annul the other. But at first sight the right of the one to whom the things belonged is recognized as stronger than the right of those who manifestly held only the second place.

Yet we said regularly. For, by reason of the common good, most civil laws have circumscribed within certain limits this faculty of disinheriting; and nature itself already permits the most closely connected persons to set aside for themselves those goods which ought to have been left to them by a strict duty of piety. Cf. what was said in nos. 150-154.

228. III. Difficulties.

1. The right of inheritance is too indeterminate for it to be called a natural institution.

Reply. I deny. For although its perfect ordering is obtained only through positive law, per se, even before law, the right of making a testament, and also the right of children to enter upon the inheritance of their parents, is already sufficiently defined. According to these determinations, that right can, and indeed must, exist even before society has been constituted. For even if only the first part of the thesis stood, one could argue thus. An institution which is sanctioned by nature under a generic rationale truly has force, in the absence of positive ordering, in that sole mode in which it can be had per se.

But. In the absence of positive ordering, it cannot have force without testamentary attribution.

Therefore. In the absence of positive ordering, the right of inheritance certainly has force in this mode.

2. At least the right of making a testament is not per se necessary and consequently is not instituted by nature. For it is sufficient per se that someone can make a gift mortis causa, that is, make a donation which is confirmed only by death.

Reply. I distinguish the assertion: The right of making a testament is not so necessary that in many cases it cannot be supplied, at least in an imperfect manner, by a donation inter vivos, especially one made mortis causa, C.; it is not simply necessary in any case, nor is it per se required in order that the right of property be complete, N.

On account of this way of escape, we confess that something is perhaps lacking for a perfect proof of the second part, which for that reason we have presented only as more probable. Yet observe that a donation mortis causa requires that the will to give be manifested before death and that another person be present to accept the donation. Who does not see that these things sometimes cannot be done and are per se full of inconveniences and danger, both to the peace of the family and to the liberty of the donor? And since these many evils can be met by the easy remedy of a testament, must it be thought that only that incomplete and dangerous mode of disposing was granted by nature?

3. It is repugnant to the right of property as nature instituted it that a transfer of a right be made without the simultaneous consent of the one ceding and the one accepting; that a cession of a right should have force which is perfected only after someone has lost dominion over the thing. But. By a testament, the right is transferred and ceded only after death, that is, when the very will and power have simultaneously departed. (Thus Zallinger and several others.)

Reply. I distinguish the major. A transfer and cession of this kind is repugnant to the natural right of property if it is made in a peculiar mode which is directly shown to be necessary for the end of private property, N. If it is made in other ordinary modes, C.

The adversaries employ this as though it were their principal rationale, and it must be admitted that several patrons of our opinion labor greatly in resolving it. For some reply that the consent of the testator perseveres morally and as regards the effect of the right;¹ others that acceptance is already present before death by presumption;² both of which replies seem to have little validity; and in the former, unless we are mistaken, the question is begged.³ Leibniz has recourse to the very immortality of the soul in order to demonstrate the efficacy of the will even after death! But if dominion is taken away by death, that immortality is irrelevant.

¹ Rev. Fr. Cathrein, Moral Philosophy, no. 403.

² Rev. Fr. Castelein, Institutions of Moral and Social Philosophy, p. 310.

³ Unless, however, as Rev. Fr. Cathrein does, you afterward confirm the principle by appealing to the necessity of the social order. Then this mode of replying differs from ours only in that it is less immediate and direct.

Yet we confess that we are little moved by this difficulty. For we know that this power over goods which is required for the end of property is attributed by nature. Hence, if the common conditions of alienations have no force in a testament, it will be for us an alienation sui generis which, nevertheless, for the reasons given, the natural law could and ought to have sanctioned (cf. Rev. Fr. Lehmkuhl, vol. 1, no. 1144); nor do we judge it worth the effort to seek subtly for a way of assigning this species to the genus of an ordinary transfer of rights. We put this forward with a more confident mind because, if we attend well, every faculty of alienating rests upon a similar rationale. For it is said to be granted by nature so that the end of private property can be efficaciously attained. Cf. no. 222.

4. The natural right of making a testament conflicts with the natural right of intestate succession. Therefore. These cannot flow from nature at the same time.

Reply. Unless one right is subject to the other, C.; otherwise, N.

5. The succession of children must be founded upon the presumed will of the parents. Otherwise: a) a testament would be opposed to natural law, at least one by which a great part of the goods was assigned to strangers; b) from justice itself, the family would be bound to pay the debts of the deceased beyond the value of the inheritance received. Yet this is commonly denied by theologians.

Reply. Together with the assertion itself, we deny both of its proofs which Rev. Fr. Cathrein objects to us in the fourth edition of his Moral Philosophy, no. 403, objection 4.

The former argumentation, indeed, already seems to be cut off by the third part of our thesis, no. 227, by which we made the right of the family subject to the will of the owner.

But the latter difficulty would not lack weight: a) if we had made the succession of the family to the goods of the deceased necessary, and not subject to a free option; b) if in the continuation of the person of the deceased and the representation of the ancestor there were an adequately sufficient rationale. But now: a) no less than the will of the deceased, a contrary choice by the family itself can impede succession. b) From the continuation of the person and the ordinary use of the goods, we showed only that the privilege of occupying the unclaimed inheritance before others belongs to the family. Therefore, by its own act—that is, by perfecting the intention of an owner which before the death of the ancestor was only imperfect—the family will make the goods of the deceased its own, certainly burdened with real debts, if there are any, just as by its own act it could also assume upon itself the burden of all the debts. And nature itself, on account of the personal bond by which children are joined to their parents, will not infrequently counsel that it discharge all of them.

But again, on account of his opinion by which he holds that every right of the family must be traced to the will of the deceased, Rev. Fr. Cathrein will perhaps not easily explain: a) how civil law can have so much force that, even against the will of the parent, it is valid for assigning a legitimate portion to the children; b) how among the peoples of Germany there long prevailed this persuasion: that no one was held to be an heir properly so called except him whom God (nature) had designated, according to the proverb: God alone can make heirs, not man. Cf. no. 223, p. 294, N.B., and no. 230.

229. Concerning proper civil ordering. Besides those things which nature per se institutes in this matter, there are many things which it wills to be sanctioned by positive law. Hence, in those things which he establishes, the human legislator does not exercise free choice, but must take care that his decrees accord with the wishes of nature.

230. Disadvantages of the opinion of Grotius. Those who explain intestate succession only from a conjecture concerning the will of the deceased do not seem able to recognize that some portion to be allotted for the support of the family is reserved by nature itself. And in a matter of such importance, can a conjecture which is often uncertain and fallacious be sufficient? Cf. Taparelli, no. 779.