§ 2. Moral Exposition

I. Obligation of the Laws. Laws by which the order of succession is defined oblige conscience even before the sentence of the judge.

II. On the Wife and Children of a Merely Civil Marriage. Since civil laws not rarely estimate legitimacy from civil marriage alone, the question arises whether children born from a merely civil marriage can accept an inheritance, especially if other children were born from a merely religious marriage. They seem able to accept the goods, but they succeed into the obligations of piety by which the parents were held toward their truly legitimate children: to these they owed at least support according to their condition. Cf. d'Annibale, II, 342, 22; Piscetta-Gennaro, III, 930-932. The reason is that legitimate children from the law of nature do not have a strict right except to such support, and in present-day society, that public peace may be secure, it is tolerated that temporal affairs be ordered according to the institution of civil marriage, while the right which natural law has conferred remains certainly intact.

But if a child who is legitimate only civilly has rendered juridically ineffective a testament by which a parent wished to favor his truly legitimate children, Piscetta-Gennaro, III, 932, rightly, as it seems, recognize for these children the right of occult compensation. Nor do they dare to condemn the same children if, even without a testament, they secretly take the portion which civil law has reserved for legitimate children.

More difficult to us seems the solution of Card. Gennari (Consultazioni morali, t. 1, Cons. XXIV, al quarto) by which he denies to a merely civil wife the faculty of accepting and keeping from intestacy what the civil law attributes to a widow, and wishes that the inheritance from intestacy be divided according to true legitimacy. Namely, what civil law attributes to legitimate wife and children, the Most Eminent man adjudges to the woman and children who, according to the same civil law, are not legitimate. Will this half-use of civil law, against the will of the legislator, be accepted by all? This certainly was not admitted by C. d'Annibale, l.c.

III. On Collation of Goods. Since this obligation of bringing goods into collation rests upon the presumed will of the donor, as often as the donee is certain concerning an absolute will of donating, he can accept the goods, not report them, and dissemble. And in French law collation is not to be made unless it is sought by the other heirs.

V. On Debts to Be Paid. From the law of nature, heirs are not bound to pay debts beyond the powers of the inheritance.

Indeed, there are those who, judging the stricter disposition of law to be founded in the presumption of fraud or of voluntary consent, pronounce heirs immune from this obligation, even after the sentence of the judge. Yet at the same time they are accustomed to permit creditors to urge their civil right. Therefore occult compensation to him who had to pay more does not seem able to be permitted.