I. On Hereditary Succession Generally

I. Notion. Hereditary succession is a mode of acquiring the strict rights of some deceased person, by way of succession into them.

II. Division. Hereditary succession is distinguished as twofold: testamentary and legal. It is testamentary when someone is constituted heir by the deceased himself, namely through a testament. It is legal, or ab intestato, when someone is called to the inheritance by law, no testament having been made, or the testament being void, or made void.

Note. Anyone who succeeds to some good of the deceased can be called an heir; but, with laws considered, he is called an heir who, whether from testament or from law, acquires either the whole inheritance or some quota part of the inheritance, for example half or a third. An heir is said to succeed to the deceased by universal title. A legatee is called one who from a testament receives some particular thing or things, or all things of a certain species, for example a sum of money, a house, all movable goods, all immovable goods, the usufruct of all goods, and so forth.

Heirs are distinguished as legal and testamentary, according as they receive goods by force of law or by force of testament; necessary and voluntary, according as they cannot or can be excluded from the testament by the testator.

III. Origin of hereditary succession; concerning this we establish two things, of which one regards children, and the other is more universal.

1. The succession of children into the goods of deceased parents is of natural law. The reason is that private ownership was instituted not only for the good of the individual, but also and no less for the good of the family; in other words, it was instituted so that a man might provide for himself and for his family (n. 762). But that end is not fully obtained if children do not succeed into the goods of deceased parents.

St. Thomas says thus: "It must be said that marriage from the intention of nature is ordered to the education of offspring, not only for some time, but for the whole life of the offspring; hence it is of natural law that parents lay up treasure for children, and that children be heirs of their parents" (IV Sent., dist. 33, q. 2).¹

Corollary I. When no testament has been made, children by force of natural law are the heirs of their parents; in other words, children by force of natural law succeed ab intestato.

Corollary II. Parents per se cannot disinherit children; nevertheless they are not bound to leave all goods to them, for the good of the family per se does not require this.

2. Testamentary succession is a mode of acquiring ownership; in other words, the owner of goods can transfer ownership of them to another by testament. This is clear first from these words of Sacred Scripture, which manifestly suppose the faculty of making a testament: "For where there is a testament, the death of the testator must of necessity come in. For a testament is confirmed among the dead: otherwise it is not yet of force, while he who made the testament lives."² Then it is deduced from the notion of ownership, which imports the faculty of disposing of a thing for as long as someone is its owner. But the testator disposes of his own thing while he still enjoys ownership, namely at the departure of life. Nor should it be objected that the union of wills is lacking, namely of the one testating and the one accepting, because the testator at the time of acceptance is already dead; since the will of the testator juridically persists in the disposition itself that has been made, just as the will of the legislator persists in legislation that has been enacted, even if he has died or has been deprived of power.³

3. Although both the succession of children into the goods of parents, and the faculty of disposing of one's own things by testament, are of natural law, nevertheless, on account of the common good, they can be more determined by positive laws, circumscribed by certain limits, and subjected to certain norms, and indeed in such a way that, if the norms have not been observed, the disposition made is invalid (n. 764).

¹ Leo XIII in the encyclical Rerum novarum, May 15, 1891, says thus: "It is a most sacred law of nature that the father of a family should protect, with food and every provision, those whom he has begotten; and he is led to this by nature itself, that he should wish to acquire and prepare for his children, since they represent and in a certain way continue the father's person, that by which they may honorably defend themselves from miserable fortune in the uncertain course of life."

² Heb. 9:16-17.

³ Pius XI in the encyclical Quadragesimo anno, May 15, 1931, says thus: "Always... the natural right itself... of transmitting goods by inheritance must remain intact and inviolate, since the State cannot take it away."

IV. Subject of hereditary succession. All human beings can be heirs who are not excluded by law, even infants and the perpetually insane (n. 757). Who are excluded, see in the code of one's country.

V. Use of hereditary succession. Each person can either accept or repudiate an inheritance; if there are several heirs, one can accept it and another repudiate it. It can be accepted either simply or under the benefit of inventory, as it is called.

VI. Effects of an accepted inheritance. 1. The effect of simple acceptance is that the heir, on the one hand, acquires all the rights of the deceased, and, on the other hand, is bound to pay his debts insofar as the resources of the inheritance permit this. If there are several heirs, each is bound to pay debts for his proportionate part, but not beyond the part which he has received. If one fails, another must supply, insofar as the part received by him permits this. Thus, abstraction being made from civil law, which is accustomed to modify the aforesaid things (St. Alphonsus, III, 790). Hence:

Question 1. Whether the disposition of law, if it exists, has force in conscience, by which individual heirs are bound only for a proportionate part to pay debts and legacies, so that if one fails another is not bound to supply.

Response. Affirmatively; since the law, as one which justly divides burdens among the heirs, is altogether just. Moreover, laws establishing this commonly leave to creditors, who suffer damage from that disposition of law, other means of providing for themselves, for example by requiring payment of the debt before the division of the inheritance, etc.; concerning this, consult the civil code (St. Alphonsus, III, 790).

Question 2. Whether the disposition of law, if it exists, has force in conscience, by which an heir who has accepted an inheritance simply is bound to pay beyond the resources of the inheritance.

Response. It seems one must answer affirmatively, because the law seems to rest upon the danger that heirs might fraudulently conceal goods; and a law of this kind obliges even if in a particular case the danger is absent (n. 152). Many indeed teach the contrary and judge that the law rests upon a presumption of fact, either of fraud committed, or of the heir's intention to hold as ratified all debts contracted by the deceased and all legacies imposed by him. But the legislator must not be judged to presume what is undeservedly presumed. There are also some who hold the disposition of the law as a penalty for the neglect of the benefit of inventory; if this is admitted, the obligation is not had except after the sentence of a judge. But there can be no discussion of a penalty, since the law leaves to the heir full liberty of accepting the inheritance without the benefit of inventory.

2. The effect of acceptance under the benefit of inventory is that the heir is not bound beyond the resources of the inheritance to pay the debts, legacies, and burdens incumbent upon the inheritance. Other effects also are commonly established by civil law.

3. The effect of any acceptance, with civil law considered, is customarily collation, as it is called; that is, the obligation by which heirs are bound, for the favor of co-heirs, to bring back into the inheritance to be divided the donations inter vivos which they received from the deceased. Concerning this obligation consult the law of one's country and its approved interpretation.