§ 1. Juridical Exposition

I. Distinction of Heirs. Some heirs are simply legitimate, who are called unless they are excluded by testament; others are necessary (legitimari), who cannot be excluded wholly. Yet this distinction does not exist in every law. Necessary heirs are offspring, for the most part also parents and ascendants, rarely, but for example in the Swiss Code (470-471), brothers and sisters. Quite often today the surviving spouse cannot be excluded fully. Observe that, if you except the spouse, the rest are not called, much less are they necessary, unless the offspring of the deceased are lacking. Commonly some part is to be reserved to the illegitimate child himself.

The quantity to be reserved is either a determined part of the inheritance itself or a determined part of the portion which falls to them from intestacy.

Thus by Italian law (805 ff.) half the inheritance must be reserved for offspring, but a third for ascendants, if they are called because offspring are lacking. A portion of usufruct is reserved for the spouse. In French and Belgian law (913-914), and Swiss law (960 ff.), the part varies according to the number of children. For to one legitimate child half the inheritance is reserved, to two two-thirds, to three or more three-fourths. To ascendants a fourth or half part of the inheritance is to be reserved according as they survive in one line only or in both. - By the German Code (2303), half the portion assigned by law is to be reserved to offspring, to father and mother, and to the surviving spouse. - In more than one republic of Latin America, freedom of testating is restricted only by the obligation of support or suitable sustenance. Thus in Costa Rican law, 595; in Honduran law, 1118, 1119; in Mexican law, 3323, 3324; in Nicaraguan law, 1184 ff.; in Salvadorian law, 1153; while in the republic of Argentina (3627), the reservation can reach four-fifths. In England there is full freedom of testating, except for the regime of certain goods which are called entailed. Nor is freedom of testating limited by the Canadian Code Q. 831. In the U.S.A. certain States have restricted this freedom at least concerning pious legacies.

A twofold line of blood relatives is distinguished: direct, which is constituted by persons of whom one has origin from another immediately or mediately (lineal consanguinity), and transverse or collateral (collateral consanguinity), which embraces persons who have a common author with the deceased. Here there are to be distinguished the full-blood relatives (whole blood), who by reason of each parent are related by blood to the deceased, and others (half blood), who by reason of only one parent are related by blood; then more strictly those are called consanguinei who are such by reason of the father alone, while those who are joined by reason of the mother alone are called uterine.

While in canon law and also Anglo-American law, the degree is always estimated from the greater or lesser distance from the common author himself, so that if, in the collateral line, they are separated by unequal distance from that author, the degree is defined by the greater distance, in French, Italian, German law, etc., even in the collateral line, there are as many degrees as there are generations by which one is distant from the other.

II. General Rules. 1. Inheritance from intestacy is deferred to those proximately joined. Yet regard is had to consanguinity alone, with affinity neglected, if you except the spouse, whom recent laws have begun to favor more than formerly.

2. Descendants for the most part exclude all others; while proximate collaterals are accustomed to concur with ascendants.

3. Among brothers, the full-blood commonly obtain a greater part than those who have only the father or mother in common.

4. When the regime of community has prevailed between spouses, that community necessarily has an end by the death of one; and the surviving spouse obtains, as partner, half the common goods and burdens. If the survivor is the wife, since for the most part she has had no part in administering the community, there is also granted to her the option of reserving the inventory, for prudently defining whether it is expedient to accept or repudiate the part of the patrimony.

5. Natural children succeed from intestacy only to the parents by whom they have been acknowledged. If they concur with legitimate children, they can acquire nothing beyond the part assigned to them by law. Sometimes only support can be bequeathed to adulterine or spurious children.

6. As to professed religious, those professed of simple vows of themselves acquire for themselves inheritances deferred to them. Do they need, from the vow of poverty, the license of Superiors for acquiring or repudiating them? The Constitutions are to be seen. The obligation cannot be demonstrated from common law. Those professed of solemn vows cannot, from common law, acquire the same inheritances for themselves. But in an Order capable of possessing, they acquire them for the monastery (i.e. the convent or province); in an Order incapable, for the Holy See. Yet in either case, it must be seen whether before solemn profession they had disposed otherwise concerning these inheritances. For renunciation concerning present goods is commanded to be made by c. 581, but concerning future goods it is not prohibited.

III. Examples of Civil Regime. A. Sketch of the Italian Regime,. to which the French, Belgian, Dutch, and several others are similar. Observe, however, that by some recent laws the right of succession from intestacy in the collateral line has been more circumscribed. For by the Belgian fiscal law of 11 Oct. 1919, collaterals beyond the fourth degree are no longer called from intestacy unless they have origin from a brother or sister of the deceased and thus represent a brother or sister. The French law of 31 Dec. 1919 excluded collaterals beyond the sixth degree from succession from intestacy, unless they were the offspring of a brother or sister; in which case it is enough that they be joined within the twelfth degree. The Dutch law of 17 Feb. 1923 established almost the same.

Therefore, by Italian law four orders of heirs are distinguished: 1. those who are called by right of family: legitimate blood relatives; 2. those who are called by right of blood: natural blood relatives; 3. he who is called by right of marriage: the surviving spouse; 4. he who comes by right of sovereignty: the State. Those who precede in order must not rarely concur with a successor of an inferior order.

1. Legitimate descendants are preferred to all others, with a certain right of the natural child and of the surviving spouse nevertheless preserved. In the first degree, succession is made by heads; but by stocks when some represent a deceased father or ascendant. - 2. After legitimate descendants, the legitimate or natural father and mother come with equal right, or either one surviving. If both are lacking, the inheritance is devolved to the nearer ascendant. If there are several of equal degree, one half part yields to the ascendants of the paternal line, the other to the ascendants of the maternal line. At the same time the surviving spouse concurs, so that, according to the various case, he or she receives a third or fourth part of the inheritance (C. Ital. art. 751). - 3. After ascendants, or rather together with them, brothers and sisters or their descendants are called, and these indeed by right of representation. Full-blood brothers obtain twice as much as consanguine or uterine brothers. But the same collaterals concur with the parents or ascendants of the deceased, yet in such a way that a third part of the inheritance comes to the ascendants; and with the spouse, to whom a third part of the inheritance is owed. - 4. After them other nearer blood relatives are called, but not beyond the tenth degree. Yet the surviving spouse receives two-thirds of the inheritance; indeed the whole inheritance if the blood relatives are more remote than the sixth degree. - 5. If these are lacking, the treasury comes. - To natural children a certain portion is reserved in the inheritance of the parents alone. - But to the spouse there falls, according to the various case, usufruct or even dominion, in part or in whole, of the inheritance.

B. Sketch of the German Regime. By the Code of Germany (1924-1936), five successive orders are distinguished. The first order contains only descendants of the deceased, either in their own name, if they are immediate, or children, or as representing a parent (1924); but the inheritance is divided equally among the children. The second order embraces the father and mother of the deceased and their descendants. If both father and mother live, each obtains half the inheritance; if either one is dead, the descendants from that one divide among themselves half the part of the inheritance. If descendants are lacking, the whole is devolved to the surviving parent. If each parent has died, half the part is attributed to the offspring of the father, half to the offspring of the mother, so that full-blood brothers have a part in each line. The inheritance is divided equally among brothers and sisters; nephews and nieces, however, are called by right of representation (1925). The third order includes grandfathers and grandmothers and those descending from them, and the matter is disposed as for the second order. But if no one is found in that order, great-grandfathers and great-grandmothers or those descending from them are called to the inheritance in a similar manner. The fourth order retains great-great-grandfathers and great-great-grandmothers or those sprung from them. In this order division is made only by heads. Finally, the fifth order is composed of more remote ancestors and their posterity, without any right of representation.

Therefore the perpetual rule is that when the inheritance cannot be attributed to the children or posterity of the deceased, the parent is preferred to the posterity born from him.

The surviving spouse obtains a fourth part of the inheritance if there are heirs of the first order; half, if the inheritance is devolved to the second order. But he or she excludes the later orders, unless great-grandfathers or great-great-grandfathers are present: to these he or she must yield half the part. Besides, when he or she concurs with another order or with ancestors, he or she can take for himself or herself the household furniture beyond his or her portion.

If other heirs are lacking, the treasury can take the inheritance.

C. Sketch of the English Regime. In deferring inheritance from intestacy, that property which is called Personal Property and that which is named Real Property are to be distinguished (cf. above n. 353).

Real Property, if there is no offspring, is deferred to the nearest male heir. But if offspring is had, it is attributed to the eldest son or, if he has died, to his son. If all male offspring is lacking, dominion is adjudged jointly to all daughters.

Personal Property is divided in such a way that a third part falls to the widow, and the remaining two 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 offspring.

D. Sketch of the Regime of the U.S.A. (except Louisiana). The matter is committed to be ordered by the individual States. Everywhere the children or posterity of the deceased are called first, and in such a way that children or the posterity of children come by right of representation. If offspring is lacking, brothers, sisters, and parents of the deceased come; but in various ways the rights of parents are composed with the rights of brothers and sisters.

From common law, brothers not full-blood had a part in those goods alone which make up personality; but this law has been changed in many States, so that either all brothers are in an equal place, or the full-blood receive double.

In many States all the rights of children fall to adopted children.

From common law, illegitimate children were children of no one, without any right of inheritance. Now they succeed to the mother and for the most part also to the father if they have been acknowledged.

Almost everywhere a dower from the inheritance (dower) is attributed to the widow; in some States a similar right under the name curtesy subsists in favor of the surviving husband.

Besides, the surviving spouse obtains a place among the heirs themselves, which varies according to the various States, nor is it always the same for the husband as for the wife.