Chapter IX: On Inheritance

Utility. Although many particulars concerning entering upon and dividing an inheritance must be permitted to jurists, it is altogether opportune, indeed necessary, that the moral theologian possess accurately in mind certain more general things concerning this broad argument. Instructed by these notions, he will be able more easily to think rightly concerning positive law and prudently to solve cases or give counsels.

I. Definition. Inheritance is a mixed mode of acquiring by the law of nature and by positive law, by force of which one succeeds into the universality or a determined part of the patrimony or goods of another deceased person.

We call it a mixed mode, because by a certain natural right connected persons occupy the place of the deceased in goods which, by reason of the very connection, already seemed to pertain to them; but again the possessor himself of the goods or patrimony chooses and designates for himself a successor in his affairs; at the same time, however, many things concerning the persons who succeed and concerning the goods which they obtain and concerning the reason by which the peculiar will of the possessor is to be composed with the connatural right of the family would remain uncertain unless they were accurately defined by positive law.

Moreover in the definition we mention only universal succession or succession by universal title, because although, as we shall see, not in every law are all successors by universal title at the same time heirs, nevertheless it is certain that those who obtain only definite goods of the inheritance are not heirs but merely legatees.

II. The Twofold Proximate Source of Inheritance. One inheritance is legitimate, or from intestacy, but the other from testament. This will be better understood after a certain historical notion has been handed down.

Historical. 1. For, in the regions of Western culture, the right of inheritance is historically conceived according to a twofold reason. By Roman law, by which dominion and patrimony are considered more as something personal, individual, the heir properly comes to be from the will of the deceased, so that institution of the heir is the head and foundation of a testament. The legal ordering of succession then is judged merely to supply the testament and is established according to the presumed will of the deceased. In that law a twofold inheritance is distinguished: testamentary and legitimate or legal or from intestacy; but the principal one is testamentary.

2. On the contrary, by ancient Germanic law, and hence by Frankish law, by which patrimony is possessed rather as familial, God alone is said to make heirs; "heirs are begotten, not written." Wherefore Tacitus (Germanicus, 20) noted that there was no testament among the Germans. When afterwards, especially by the authority of the Church, testaments were introduced, these regarded the division and a certain attribution of goods, but not immediately the institution of an heir, so that there was one inheritance, i.e. the legitimate.

3. But by present-day laws a certain composition of each reason has been made. By French law, the more important inheritance, and the one more properly so called, is from intestacy; by testament legatees are made, yet in such a way that gradually, by the help of tribunals, their condition has become similar to that of heirs, at least when they are called by universal title. Likewise in the U.S.A., only heirs from intestacy are called heirs, while those who succeed from testament are called devisees and legatees. Yet by the full liberty of disposing which it recognizes for parents, the law of England imitates Roman law, while most Latin laws, by establishing a legitimate portion, have in part adopted Germanic principles. Nevertheless the order of succession in Latin law is made according to the presumed will of the deceased, with equality therefore observed among children, whom the father is presumed to affect with equal love; while in the law of England the solicitude of preserving the familial patrimony seems drawn from Germanic law.

An heir, in Latin law, continues the person of the deceased and therefore receives the goods and is held beyond the powers of the inheritance, just as, in Roman law, independently of the goods, he assumed the obligations of the deceased; while in the Code of Germany and the U.S.A. (except Louisiana, which, as was said, uses the Latin regime) the heir receives the goods immediately and is not bound to pay debts beyond the powers.

4. By international agreements the mode is defined by which laws concerning successions are applied to citizens in another region and to foreigners in one's own region. Frequent commerce among nations has made agreements of this kind necessary. Thus personal statutes are distinguished, which hold a citizen everywhere, and real statutes, which govern goods from the place where they exist.

III. Composition of the Inheritance. 1. In more than one law there has been instituted, in favor of heirs but not of creditors and legatees, the so-called collation of goods. By this institution, an heir who wishes to enter upon the inheritance (not therefore if he renounces the inheritance) is obliged by law to bring into the lying inheritance whatever, as capital, he has received from the author while living, by direct or indirect donation. And legacies themselves made to an heir are imputed to the hereditary part. This is done from the presumed will of the donor or testator, who is judged to have wished to preserve equality among the heirs. Wherefore, after signifying his will, the donor can, within the limits of his faculty of disposing, exempt the donee or legatee from this obligation. It is enough, for example, that in the testament he say: I bequeath beyond or outside the legal part (par préciput et hors part). And of themselves, on account of a different presumption recognized by the law itself, some things, such as support and gifts customarily made, moderate donations from hand to hand, are exempted from collation to be made.

But in the forum of conscience, a tacit remission of collation, provided it is certain, can suffice.

2. The goods of the deceased either are judged to constitute one patrimony, as in Latin law, or, on the contrary, several masses are distinguished, either from origin or from nature. Thus, in England and in the U.S.A., goods are distinguished which constitute real property and goods which are personal estate or personality. Social considerations have now tempered Latin law by exempting, under certain laws, the family house or homestead from necessary division among the heirs.

IV. Acquisition of the Inheritance. 1. Possession, in several present-day laws, belongs to the legitimate heir from the first moment at which their author died, and without any apprehension of goods; nor does there exist of itself that lying inheritance of Roman law, the very possession of which had to be acquired. Thus in Italian and French law, and something similar in most Federated States of North America, is had. Therefore the possession of the deceased continues in the heir, sometimes also in the universal legatee. This possession is called in French la saisine héréditaire.

2. Perfect acquisition nevertheless does not happen without acceptance. Entry upon the inheritance can be made by an express or tacit act: as if the heir performs those things which only an accepting heir can legitimately do. He who dies before he has pronounced his will concerning the inheritance transfers the faculty of accepting to his heirs. Acceptance must be made absolutely. Yet in Italian, French, and generally in Latin law, the inheritance can be accepted either simply or with an inventory reserved (con beneficio d'inventario). This is the force of that clause, that if the inventory has been duly made within the stated time, the heir can accept the succession without the obligation of paying debts beyond the powers of the inheritance. But because simple repudiation is judged to honor the deceased little, acceptance with reservation of inventory is a mode of reconciling the honor of the deceased with one's own economic utility.

3. Renunciation of the inheritance is made, in the law which we use, by declaration before the conciliating judge or praetor. It admits no condition or limitation. But by Italian and French law someone can refuse to succeed from testament and accept the inheritance as legitimate heir; while German and Swiss law prohibits him from rendering various wills and legacies of the testator ineffective by an option of this kind.

But what if the heir neither positively accepts nor positively repudiates the inheritance? For the most part there will be another, for example a creditor, who will compel him to do something definite. But if he has had to do nothing, it is not clear in our law whether, after thirty years, the faculty of renouncing or the faculty of accepting has been prescribed. In Italy rather the faculty of accepting is thought to have been extinguished.

4. As to the mode of acquiring, there is to be distinguished an acquisition made in one's own name and the acquisition of one who enters upon the inheritance as representing a deceased parent. If the inheritance is entered upon in one's own name, division is made into individual heads, or man by man; but if the heirs come as representing the author, division is made into stocks, i.e. they receive together, afterwards to be divided among themselves, the part which that parent would have obtained if he had lived. This case especially occurs when, in place of the deceased father, the children have to enter upon the inheritance of the grandfather or even of the uncle.

5. Renunciation of the inheritance of a living person is generally invalid; but agreements concerning future succession are admitted by one law and excluded by another.