Legal Succession or Succession Ab Intestato

I. When the owner of goods has died without a legitimate testament, de facto those can be heirs whom civil law assigns.

II. Who come in the first place, who in the second, etc., likewise learn from the law of one's country; likewise in what manner and in what order blood-relatives are called to the inheritance; likewise what the law is in a case in which, with or without legitimate heirs, illegitimate persons are present; likewise how succession is made to illegitimate persons; likewise what part falls to each. Moreover, observe:

1. As regards the manner in which blood-relatives are called to an inheritance, note that they can be called per capita, per stirpes, or per lines.

a) Succession is made per capita when several heirs, distant from the deceased by an equal degree, divide the inheritance equally among themselves.

b) Succession is made per stirpes when one or another of the heirs is dead, and his descendants are called to the inheritance by representation; it is called by representation because they represent the deceased heir.

c) Succession is made per lines when the inheritance is divided into two parts, of which one falls to paternal blood-relatives, the other to maternal blood-relatives.

2. As regards legitimacy and illegitimacy, observe:

a) A child who, considered according to ecclesiastical law, is legitimate, but considered according to civil law is illegitimate, cannot vindicate for himself the rights of legitimate persons, except insofar as natural law itself attributes them to him. The reason is that the legislator, though to be reprehended, nevertheless de facto does not admit canonical legitimation for his own forum, and therefore de facto does not grant to a child who is only canonically legitimate the rights of the civilly legitimate.

Objection. A canonically legitimate child has the right that he be held as legitimate also in the civil forum, and so that he participate in the rights of legitimate persons.

Response. That the child has a strict right, I deny; a broad right, so that the State violates distributive justice, let it pass.

b) A child who, considered according to ecclesiastical law, is illegitimate, but considered according to civil law is legitimate, cannot use the rights granted to him by civil law, except insofar as natural law itself grants them to him. The reason is that the disposition of civil law, since it ought to follow Canon Law, is dishonest and therefore destitute of force.

It is disputed whether parents act unjustly or not when they falsely recognize and legitimate illegitimate offspring, namely offspring of only one of the two, and thus bring it about that the legitimate portion of legitimate heirs is diminished. Now it seems one must distinguish thus:

1. If the parents, with civil law considered, by injuring the legitimate portion do not act unjustly with respect to the legitimate heirs, neither do they act unjustly with respect to the same by falsely recognizing the offspring. For in the posited hypothesis they have the right of bringing it about that goods come to the illegitimate child; with this posited, recognition - granted that it is a lie - does not become unjust with respect to the legitimate heirs, so that they do not impede them by an unjust means from obtaining a good.

2. If the parents, with civil law considered, by injuring the legitimate portion act unjustly with respect to the legitimate heirs, they also act unjustly with respect to the same by falsely recognizing the offspring. For, once this hypothesis is admitted, recognition becomes an unjust means by which they impede the legitimate heirs from obtaining a good.

727. 1. Certain persons are excluded from the inheritance:²

² Cod. civ., art. 725-730, in Supplem., p. 123*; Planiol, II, n. 1705-1759.

(A) By reason of incapacity: (a) those not yet conceived (n. 710); (b) those who, being born, are not capable of life (non viables); (c) those who, at the time when the succession begins, are already dead. - All these are excluded by the fact itself.

(B) By reason of indignity: (a) those who were condemned because of the murder of the deceased committed or attempted; (b) those who brought against the deceased a calumnious capital accusation, which has been judicially declared as such; (c) persons of majority age who did not denounce to the judges the murder of the deceased known to them, unless however they are excused from denunciation as relatives or connections by marriage of the murderer. - These, however, are disinherited not by the fact itself, but after the sentence of the judge.

728. 2. On the order of succession.¹ Heirs are of a twofold kind: regular, who by the fact itself succeed to the person of the deceased, and immediately acquire all his rights, provided they take upon themselves the burdens of the succession; irregular, who are put into possession of the goods by the judge.

¹ Cod. civ., art. 731-773, Supplem., p. 124*; Planiol, III, n. 1780-1925.

(A) There are five orders of regular heirs; nor is there a transition from one order to another unless the heirs of the prior order are altogether lacking. - Now the following are called to succession: (a) descendants of the deceased, namely legitimate or legitimated children, or recognized natural children, or adoptive children; then grandchildren (petits-fils), etc.

Legitimate children divide the inheritance equally among themselves. If one of them has died, his posterity divide among themselves the portion which would have fallen to the father. - Recognized illegitimate children obtain only a part of the inheritance determined by law (art. 756-761), if legitimate descendants, or ascendants, or brothers or sisters or their children survive; otherwise, they obtain the whole inheritance.

(b) Descendants being lacking, the father and mother of the deceased are called together with his brothers and sisters or their children, according to the proportion determined by law (art. 746-752).

(c) But if descendants and parents of the deceased are lacking, brothers and sisters divide the whole inheritance among themselves in the manner defined by the Code (art. 752).

(d) If descendants, brothers and sisters, and also parents of the deceased are lacking, the succession is devolved to ascendants: the nearer paternal ascendants divide half the part among themselves; but the nearer maternal ascendants divide the other among themselves (art. 746-749). - But if one of the two lines of ascendants has been extinguished, half the part is divided among ascendants, but the other among collaterals of the other line.

(e) If descendants, brothers and sisters, and ascendants are lacking, the inheritance passes to the children of brothers or sisters up to the twelfth degree (art. 750-755), and to other collaterals up to the sixth.

729. (B) There are two irregular successors: (a) the surviving spouse who, the aforesaid heirs being lacking, obtains the whole inheritance, provided he or she has not been judicially separated from the other spouse. - Moreover, when the surviving spouse does not obtain the whole inheritance of the other, and is not judicially separated, he or she acquires the usufruct of a certain portion of the goods of the deceased, according to art. 767; (b) the State, or fisc, which, in default of other heirs, obtains all the goods (art. 768).

280. The right of succeeding. From natural law itself, which institutes the family, is derived the right of succession between parents and children, unless in a particular case that right is derogated for a legitimate cause. Therefore Sacred Scripture calls a son by that very fact an heir: "But if a son, then also an heir."⁶⁶ Concerning intestate succession, almost the same thing is to be said as was proposed above, n. 4, concerning private ownership. Just as private ownership is necessary in the present order of things, since otherwise the public welfare could not be preserved, so also is intestate succession; for if children did not succeed their parents in the goods of the family, the bond and perpetuity of the family would be most greatly endangered. Therefore parents sin if without a just reason they disinherit a child or leave him only the legitimate portion. Nevertheless, some freedom is to be granted to parents concerning the disposition of their goods, especially in a case in which the children are disobedient and bring dishonor upon the family. This freedom is limited by civil laws in different ways for different regions. It is complete in England and in several States of the United States of America, where parents can dispose freely of all their goods.⁶⁷ In Germany,⁶⁸ Italy,⁶⁹ and Austria,⁷⁰ one half is disposable. In Spain⁷¹ parents are permitted to dispose at will of one third of their goods. In France the disposable part depends upon the number of children: if there is one child, the parents can dispose of one half; if two children survive, of one third; if three or more children are present, of one fourth of their goods.

Neither jurists nor theologians agree concerning the social utility and moral obligation of legal limitation in hereditary succession, some defending complete freedom of making a testament and others defending a legal reservation. There is no leisure to dispute which mode is better for social utility.⁷²

A strict right of succeeding indeed does not seem to exist either among collateral blood relatives or between spouses, but from filial or familial duty they must often be assisted. Hence the following can be held as a general rule: almost the same obligation presses in life and in death. Therefore, just as in life we are gravely bound from filial or familial duty to assist near collateral relatives living in true need, so in death we ought to designate goods for relieving their need, insofar as this is possible while other obligations are preserved. This applies much more to the support of the surviving spouse, who is wont to be numbered among necessary heirs by modern laws.⁷³

⁶⁶ Gal. 4:7.

⁶⁷ Cf. Tanquerey, De iust. n. 617; Slater, De iust. c. 6, a. 3; Stephen, Commentaries on the Laws of England II, 194.

⁶⁸ Civil Code § 2203.

⁶⁹ Civil Code art. 805.

⁷⁰ Civil Code § 765.

⁷¹ Civil Code art. 2303.

⁷² Tanquerey, l.c., n. 719.

⁷³ Cf. St. Alphonsus, Theol. mor. l. 3, n. 946.

281. Obligations of the testator and of the heirs.

1. Obligations of the testator.

a) By natural law itself the testator is bound to leave a suitable part of his fortune to children, spouse, and other relatives living in need. For this is demanded by the virtue both of filial or familial duty and of charity. For although neither children nor others have a strict right to the entire inheritance, nevertheless a fortune or private ownership pertains not only to the possessor but, after his death, in some manner also to his family. Well-ordered filial or familial duty and charity demand that a man have care for those of his household, especially the needy. Consequently the testator sins both against charity, against filial or familial duty, and against just civil law if, without a sufficient reason, he withdraws the inheritance due to necessary heirs, or if he makes an "inofficious testament."⁷⁴

b) Sufficient reasons for withdrawing the legitimate portion from necessary heirs are not only those determined in the different civil codes,⁷⁵ but also any other reasonable cause; e.g., if some necessary heir is disobedient and does not have so much need of the inheritance, the testator can distribute his legitimate portion otherwise.

c) More probably, the testator is not bound to restitution if by donations, squandering, etc., he has withdrawn the legitimate portion of necessary heirs. The reason is that, by disposing of his own things, he has not injured commutative justice.⁷⁶

d) Unless truly grave reasons are present, it is highly expedient that the testator exclude no legitimate heir and withdraw nothing from the inheritance. Otherwise, great quarrels and enmities are wont to arise.

⁷⁴ A testament contrary to duty and devoid of affection (pflichtwidriges, liebloses Testament).

⁷⁵ German Civil Code § 2339ff.; Swiss Civil Code art. 477; French Civil Code art. 725ff.

⁷⁶ Thus also Marc, Instit. theol. mor. n. 1083; Tanquerey, l.c., n. 725. Noldin, De praec. n. 562, teaches the contrary.

282. 2. Obligations of the heirs.

a) Necessary heirs cannot employ hidden compensation if their legitimate portion has been diminished by the testator. The reason is that they do not have a strict right to this legitimate portion, as has already been said. These heirs can, however, approach a judge, and then after a favorable sentence of the judge they obtain a strict right to the legitimate portion, in whatever manner it may have been injured, even by pious legacies.

b) Necessary heirs are bound to bring into the mass of the inheritance those goods which they already received during the life of the testator, unless, however, they received those goods by title of an entirely gratuitous donation. In practice, account must be taken both of the laws of the country,⁷⁷ of legitimate customs, and of the intention of the testator. Hence it cannot be determined by a general rule whether expenses for studies, military service, marriages, and dowries must be brought into the mass of the inheritance or not. It is very fitting that heirs joined to the testator in an equal degree of relationship also obtain an equal part of the inheritance, unless the expressed will of the testator stands in the way.

⁷⁷ Cf. German Civil Code § 2050; Swiss Civil Code art. 626ff.; French Civil Code art. 829ff.

504. Legal succession, or succession ab intestato, is the transmission of the goods of the deceased to one or several persons according to the order defined by law. For when someone does not dispose integrally of his things by donation or testament, the goods which remain pass to natural heirs by way of succession confirmed or established by law. Yet this succession is reduced to donation and testament: for there is present in itself a presumed donation which the law supposes and recognizes.

505. Legal successors are called to the inheritance in a certain order. - First there must be distinguished regular heirs, who by the fact itself succeed to the person of the deceased and immediately acquire all his rights, provided they take upon themselves the burdens of succession; and irregular heirs, who are placed in possession of the goods by a judge.

Regulars, however, can succeed in a threefold way: by heads (par tête; hoofdsgemijze), by stocks (par souche; staaksgewijze), and by lines (par ligne; stamsgewijze). They succeed either by their own right, that is, on account of a personal degree of consanguinity, or by right of representation, because they have obtained the right of their deceased parent. Now there are five orders of regular heirs, so that there is no transition from one order to another unless the heirs of the prior order are entirely lacking.

A. As regular successors there are called to the succession:

1. Descendants of the deceased, namely: legitimate or legitimated children (a. 331-333), or recognized natural children (a. 756), or adoptive children (a. 350), and indeed by heads; then grandchildren, etc., but by stocks (a. 745).

By French and Belgian law, legitimate children divide the inheritance equally among themselves, because they succeed by heads. If one of them has died, his posterity are called to the inheritance by representation and succeed by stocks (a. 745). Recognized illegitimate children obtain only the part of the inheritance determined by law (a. 756-761), if legitimate heirs survive, as was said in n. 501. An adoptive child receives the part of a legitimate child (a. 350).

2. In default of descendants, the father and mother of the deceased are called together with his brothers and sisters, according to the proportion defined by law.

By French and Belgian law, 1/2 part yields to the parents, the other to the brothers and sisters; if only the father or mother survives, 1/4 part yields to this one, 3/4 to the brothers and sisters (a. 748-752).

3. In default of descendants and parents, the brothers and sisters of the deceased divide the whole inheritance among themselves in the way defined by law.

By French and Belgian law they succeed by heads if they are of the same bed; otherwise by lines, so that full siblings participate from both lines (a. 750 and 752).

4. If descendants, parents, and brothers and sisters are lacking, the succession devolves to ascendants, and indeed by lines, so that the nearer paternal ascendants divide one half part among themselves, but the nearer maternal ascendants divide the other among themselves (a. 746-749).

But if one of the two lines of ascendants has become extinct, 1/2 part is divided among ascendants, the other among collaterals of the other line (a. 753).

5. If descendants, brothers and sisters, and also ascendants are lacking, the inheritance passes to collaterals (a. 750 and 755) up to the degree defined by law.¹

¹ The orders are distinguished somewhat otherwise in German law (a. 1924 sq.), namely: 1. descendants of the deceased; - 2. parents, so that the descendants of the deceased parents or of one deceased parent hold their place; - 3. grandfathers and grandmothers, or likewise their descendants, to whom, however, the surviving spouse is preferred; - 4. great-grandfathers and great-grandmothers, in the same way as was said in 3; or in their default those nearest in kinship to the deceased; - 5. great-great-grandfathers and great-great-grandmothers, in the same way as was said in 4.

From the Belgian law of October 11, 1919, a. 47, blood relatives beyond the 4th degree do not succeed, unless they are called by representation; but representation is admitted in the direct line indefinitely, while in the collateral line it is admitted for the descendants both of the brothers and sisters of the deceased, and of his paternal or maternal uncle, paternal aunt or maternal aunt (Civil Code, a. 742 modified). - The French law of December 31, 1919, excludes collaterals beyond the sixth degree from succession, unless they are descendants of a brother or sister: then succession reaches as far as the 12th degree. The Dutch law of February 17, 1923, establishes almost the same. By Italian law collaterals are not admitted beyond the 10th degree.

B. There are two irregular successors:

1. The surviving spouse, provided he or she has not been judicially separated from bed from the other spouse, obtains the whole inheritance in default of the above-mentioned heirs; but if he or she does not obtain the whole inheritance, he or she acquires the usufruct of a certain portion of the goods (a. 767), as was said in n. 501.

By Italian law, the spouse, in default of children, has the right to a fourth or third part of the inheritance; if parents, ascendants, brothers and sisters also are lacking, to 2/3 parts, indeed to the whole if the relatives are more remote than the sixth degree (a. 754). By English law, the wife receives 1/3 part of the goods of the intestate husband, if he leaves descendants; otherwise as stated below.² By German law (a. 1924-1931), the surviving spouse in the first case receives only 1/4 part, in the second 1/2 of the inheritance and household goods; in default of ascendants, the whole.

² In the individual States of the United States of America the law is diverse. By English law, immovable and movable properties are distinguished. An immovable, if there is no offspring, is deferred to the nearest male heir; but if there is offspring, it is attributed to the eldest son or, if he has died, to his son; in default of all male offspring, dominion is assigned jointly to all the daughters. - Movables, in default of testament, are so divided that the third part falls to the widow, and both remaining 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 progeny.

2. The State or public treasury (the fisc), which, in default of other heirs, natural or instituted, obtains all the goods (a. 768).

506. The following are excluded from the inheritance:

1. by reason of incapacity, and indeed by the fact itself, provided it exists at the moment when the succession begins: a) those not yet conceived; b) those who are born not viable; c) those who at the time when the succession began were already dead (a. 725);

2. by reason of unworthiness: a) those who were condemned for the perpetrated or attempted killing of the deceased; b) those who brought against the deceased a calumnious capital accusation, which was judicially declared as such; c) those of age who did not report to the judges the killing of the deceased known to them (not the killer), unless nevertheless they are excused from reporting as relatives or relatives by marriage of the killer (a. 727-728). Yet the children of the unworthy are not excluded, unless they succeed by representation (a. 730).

All the aforesaid are disinherited not by the fact itself, but only after the sentence of a judge.

507. Option of accepting and repudiating succession. - No one is bound to accept a succession, but he can repudiate it: for no one is an heir unless willing; whence no one succeeds except after he has accepted. But he can accept the succession either simply, or under benefit of inventory, or repudiate it (a. 774).

A. He who accepts simply, whether explicitly, by assuming the name of heir in an authentic or even private act, yet in such a way that it clearly stands that he accepted the succession; or implicitly, by placing an act which necessarily imports the will of accepting (a. 778-780):

1. immediately acquires all the rights of the deceased and can dispose of them (a. 777);

2. takes upon himself all burdens, even beyond the powers of the inheritance, so that he is bound to pay debts not only from the goods of the succession but also from his own. This last, however, does not seem to have force in the forum of conscience, at least before the sentence of a judge, which in the case rests upon a false presumption of fraud;

3. he accepts irrevocably, except in cases excepted by law, namely, when the acceptance was obtained by fraud, or when the inheritance is diminished by more than one half because of the discovery of a testament unknown at the time of acceptance (a. 783).

B. He who accepts under benefit of inventory must expressly declare this and have the declaration inscribed in the register of the tribunal (a. 793):

1. he receives only the administration of the goods, until the matter has been placed in a clear state and the burdens have been satisfied (a. 803);

2. he must take care that an inventory be made (a. 794); for making it three months are conceded, and besides 40 days for deliberating for acceptance or not (a. 795);

3. once the inventory has been made, he is not bound to pay burdens beyond the powers of the inheritance; indeed, he can free himself from every obligation by leaving all the goods to creditors and legatees, and he has the right of exacting payment of all things which are owed to him by the succession (a. 802).

C. He who repudiates the succession, which is not presumed but must be expressly declared in the same way as acceptance under benefit of inventory (a. 784):

1. is considered never to have been heir, whence his portion accrues to co-heirs of the same order, and, these lacking, devolves to the subsequent degree (a. 785-786);

2. is freed from paying debts, but creditors thereby injured can obtain from the judge that they accept the succession in his place; in which case the renunciation is invalidated only in favor of the creditors and for that sole end, that the things owed to them be paid (a. 788);

3. can retain gifts and legacies made to him, if they do not exceed the disposable part (a. 845).

Sometimes it is expedient to accept simply, when it is morally certain that the succession is not burdened beyond the powers of the inheritance: for thus many expenses are avoided. In doubt, it is better to accept under benefit of inventory. Finally, it is fitting to repudiate if it is morally certain that the inheritance is burdened with burdens which exceed the resources, or if a donation of great value previously made would have to be lost or notably diminished because it would have to be brought back to the common mass.

508. Partition of inheritance and collation of goods. Partition, in order to avoid lawsuits, can be made by the ascendants themselves in their life, under the form of donation or testament (a. 1075-1080), provided the rules of law concerning reservation and succession are observed. But if no partition has been made by the parents themselves, it must be instituted after their death, unless the co-heirs agree that it be deferred for a time; according to French law, this cannot exceed a five-year period, yet in such a way that, once this has elapsed, the agreement can be renewed. But lacking such an agreement, no co-heir can be compelled to remain in undivided possession (a. 815).

But in order that relative equality be preserved among heirs, sometimes it is prescribed by law that a collation of goods be made (a. 843 sq.: rapport; wederinbreng). It consists in this, that each one must bring back to the common mass of the inheritance whatever he himself has received from the deceased by donation or testament, unless, however, the donor explicitly said that these things were not to be brought back, and at the same time they do not exceed the disposable part (a. 844 and 846), or the law itself has otherwise disposed.

Therefore it is the heir or legatee himself who is bound to collation, not his son, not his father, not his spouse, unless these act by representation (a. 847-849). But the law exempts from collation: 1. expenses of education (a. 852), namely those necessary for learning an art or trade, or nuptial expenses or customary gifts; but not expenses made for procuring some office or state of life (frais d'etablissement, a. 851), or for paying debts (a. 851); - 2. fruits and interest of the donated thing, which were received before the death of the donor (a. 856); - 3. immovable things which perished without fault of the donee (a. 855).

509. Whether the obligation of collation which is imposed by civil law has force in conscience? - It is answered: