Читать книгу A Methodical System of Universal Law - Johann Gottlieb Heineccius - Страница 25
ОглавлениеOf derivative acquisitions by succession to last-will and to intestates.
SECTION CCLXXXVI
How a testament is defined by the Roman lawyers.
A Testament, in the notion of Civilians, is a solemn declaration of one’s will concerning the transition of his inheritance and all his rights to <216> another after his demise. And therefore, while the testator is alive, no right passes to his heirs; nay, not so much as any certain hopes of which they may not be frustrated; but the testator, while he lives, may alter his intention, and tearing or destroying his former will, make a new disposition, or die without a will.*
SECTION CCLXXXVII
Such a testament is not of the law of nature. First argument.
But that such a testament is not known to the law of nature is evident. For tho’ right reason easily admits that solemnities should be added to so serious an action, which is obnoxious to so many frauds; yet it implies a contradiction, to suppose a person to will when he cannot will, and to desire his dominion to pass to another, then, when he himself has no longer any dominion. This is so absurd, that the Romans owned the contradiction could not be removed but by mere fictions.* <217>
SECTION CCLXXXVIII
Another argument.
Add to this, that no reason can be imagined why the survivers should hold the will of the defunct for a law, especially when it very little concerns one, whatever his condition be, after death, whether Dion or Thion enjoys his goods:† yea, the last judgments of dying persons often proceed rather from hatred and envy than from true benevolence; and in such cases, it seems rather to be the interest of the deceased that his will should not take effect, than that his survivers should religiously fulfil it. See our dissertation de testam. jure Germ. arct. limit. circumscript. §5. <218>
SECTION CCLXXXIX
What with regard to the testaments in other nations.
Since therefore the law of nature scarcely approves of testament-making, as described by the Roman laws, i.e. as Ulpian elegantly defines it, tit. 20. “A declaration of our mind solemnly made to this end, that it may take place validly after our decease,” (§286); the consequence is, 1. That it no more approves like customs of other nations; and therefore, 2. That testaments of the same kind among Greeks or Barbarians, are no more of the law of nature and nations than those* of the Romans; and for the same reason, 3. No nation hath accommodated their manners in this respect more to the simplicity of the law of nature than the Germans where there was no testament; (heredes successoresque sui cuique liberi, & nullum testamentum; Tacitus de mor. Germ. c. 20).1 <219>
SECTION CCXC
What with regard to Grotius’s definition.
This being the case, Grotius gave a new definition of a testament, (of the rights of war and peace, 2. 6. § ult.) he defines it thus; “Alienation to take place at the event of death, before that revocable, with retention of the right of use and possession.” But as this definition does not quadrate with what we commonly call testament, and is faulty in several respects; (Ziegler. ad Grotium, 2. 6. Pufend. de jure nat. & gent. 4. 10. 2. and the illustrious Jo. Gottfr. de Coccei. ibid. §4. & seq.) so it does not follow that testament-making is of the law of nature, because that law does not disallow of alienation at the event of death, revocable before that event, with retention of the right of possessing and using.
SECTION CCXCI
What disposition with regard to succession after death is lawful by the law of nature.
But tho’ the arguments above-mentioned plainly shew, that testament-making, according to the Roman law, is not of the law of nature, yet they are by no means repugnant to all dispositions with respect to future succession (§268).* Let us therefore enquire what these are which are approved by the law of nature. And I answer, they are nothing else but pacts, by which dying persons transfer a possession itself, with the dominion to others; or men in good health give others the right of succeeding to them at the event of their death. For since we can dispose of our own, not only for the present, but for the future (§268), we may certainly make a pact for transferring to another what belongs to us, either to take place at present, or at our death.* <220>
SECTION CCXCII
What successory pacts are valid.
Since every one therefore hath a right to transfer his goods for the present or for the future, at the event of his death (§291); the consequence is, that there is no reason why pacts about succession may not be pronounced agreeable to the law of nature.† But, on the contrary, they ought to be deemed valid by the best right, whether they be reciprocal, or obligatory on one side only; and whether they be acquisitive, preservative, or remunerative; for as to dispositive pacts, that they bind the contracters, but not him whose heritage is disposed of, is evident, because he hath made no pact about his own. <221>
SECTION CCXCIII
How one may dispose of his inheritance.
Besides, since such is the nature of all transfers of property, that any one may except or secure to himself any part of, or any right in his own he pleases, in which case, so much only is transmitted as the owner willed to transmit (§279); it is evident, that it is at the option of the owner to transfer the possession to his heir by pact at once; or the right only of succeeding to his estate after his death; to transfer either revocably or irrevocably;* with or without any condition; in whole or in part; so that there is no natural opposition between testate and intestate, as Pomponius seems to have imagined, l. 7. D. de reg. juris.
SECTION CCXCIV
Whether an heir be obliged to accept of the heritage destined for him.
But because a thing may be accepted, not only actually but presumptively, when from the nature of the thing it cannot but be concluded, that one will not refuse what another designs to transfer to him (§284); it must therefore be the same in effect by the law of nature, whether one be present and declares his consent, or being absent, so that he cannot accept verbally, there is no ground to apprehend that the liberality of another will be disagreeable to him;† especially, if the inheritance designed for him be very profitable. There is however this difference between these cases, that in the former the heir acquires a valid and irrevocable <222> right, unless the owner hath expresly reserved to himself the faculty of revoking; whereas in the latter, there is liberty to revoke till acceptation be made: And whereas an heir having declared his consent, cannot renounce the heritage he hath accepted, he whose consent is presumed, may enter upon or refuse the heritage transferred to him, as he thinks proper.
SECTION CCXCV
The foundation of succession to one who dies intestate.
But if an owner can really and truly will that his goods may be transferred to one after his death (§291), there is no reason why as much should not be attributed to one’s will, presumed from his end and intention, as to one’s will expressed by words or signs (§268). Now we have already shewn, that it is not the end and intention of those who acquire any thing, and take care of their acquisitions, that they should after their death be held for things relinquished to the first occupant; but that they should be advantageous to those whom they love and wish well to (§284). But hence we may justly conclude the succession to belong to them, preferably to all others, for whose sake chiefly the defunct acquired and took care of his acquisitions with so much concern and sollicitude.* <223>
SECTION CCXCVI
Axioms relating to it.
But because this is not a duty of perfect obligation, but rather a species of humanity, which pays regard to persons and ties or connexions, and therefore prefers relatives to strangers (§220); hence we have reason to infer, that relatives exclude all strangers from succession, and that among relatives those of the nearer degrees are preferable; and that many of the same line and degree have equal rights to succession.* <224>
SECTION CCXCVII
The succession of children.
Since of relatives the more remote are excluded by the nearer (§296), but none can be reckoned nearer to one than children are to their parents; therefore they are justly preferred in succession to their parents before all others, and that without distinction of sex or age:† For as to the preference given in some countries to males, and to the first-born, that, because it is making an unequal division among equals, proceeds from civil law, pact, or some other disposition; and so it is not of the law of nature (§271).
SECTION CCXCVIII
Legitimate children only succeed to the father, but to the mother even illegitimate children succeed.
But if in succession to parents children be justly preferable to all others (§297), and this may be concluded from the presumed will of parents, (§295); the consequence is, that it ought to be <225> certainly known who is the child. But because that cannot be ascertained except in the case of lawful marriage; hence we infer, that legitimate children only, even posthumous ones, and not illegitimate ones, or bastards, succeed to a father; but that all children succeed promiscuously to a mother; tho’ none will deny that a father may take care of his illegitimate children in his disposition.
SECTION CCXCIX
How grandchildren succeed.
Besides, it may be inferred from the same will of parents (§295), that the succession of descendents extends not only to children of the nearest, but of the more remote degrees; and therefore that grandsons and grandaughters are admitted to inherit, as well as sons and daughters; and that not only if there be no children of the first degree, but if they concur with them; so that the right of representation, by which children of the remoter degrees succeed into the room of their parents, and receive their portion, is most agreeable to the law of nature.* <226>
SECTION CCC
What if none other exist?
From the same rule, that the nearest of many relatives are to be preferred (§296), it follows, that grandchildren are to be preferred both to the parents of the grandfather, tho’ nearer in degree, and to his brothers and sisters, tho’ equal in degree. For one is to be judged nearer, not only in respect of degree, but chiefly in regard to line (§296).* But whether natural equity in this case calls grandchildren to succession by heads, or by descent, may be easily understood from what hath been said in the preceding scholium.
SECTION CCCI
Succession in the ascendent line.
Since, failing the line of descendents the nearest is the ascendent (§296), hence it is plain, that the mournful succession to their children is due to the progenitors,† and in such a manner, that <227> the nearer in degree excludes the more remote, and those of the same degree come in equally. Nor does the law of nature in this case suggest any reason why the inheritance of children should be divided among many of the same degree according to lines; so that these, and like cases, must rather be left to the determination of civil laws.
SECTION CCCII
Succession of collaterals.
It follows from the same principle (§296), that failing both the ascending and descending line, the succession to intestates devolves on the collateral kindred, according to the degree of nearness in which they stand; nor is there any reason why the right of representation should take place among collaterals;* much less is there any reason why duplicity of ties, or the origine of the goods should <228> make any difference. In this case, many of the same degree equally divide the inheritance: nor is there any difference how far they may be removed from the defunct, seeing it was in his power to appoint another heir, if he had no mind they should be made happy by his estate.
SECTION CCCIII
Much is here left to civil legislators.
So far does right reason acknowledge the right of succession in kindred. But because it is obvious to every one, that all these things belong rather to the permissive than to the preceptive part of the law of nature, much must here be left to civil legislature, to fix and determine by their laws, as the end and interest of their states may require (§18). And hence it is easy to give a good reason why legislators have thought the surviving wife should be taken care of; and why there is no branch of law almost in which civil laws and statutes so much differ, as with regard to succession to intestates.
SECTION CCCIV
Whether any heirs be necessary?
Seeing this whole right of succession proceeds from presumed will (§285); but he, whose consent is presumed, may enter upon an inheritance, <229> or renounce it as he pleases (§294), it must be evident to every one, that necessary heirs are unknown to the law of nature.* And therefore that no person is heir to an intestate by unalterable right, but becomes such by his consent, declared by words or deeds.
SECTION CCCV
How heirs succeed to the rights and obligations of the deceased.
Now, when one determines to succeed to another, nothing is more equal, than that he should be adjudged to succeed to all his rights and burdens (§267); whence it follows, that an heir, whether by the real disposition of the deceased, or by his presumed will, acquires all his rights, which are not extinguished by his death; and that he has no reason to complain, if he be bound to satisfy all his obligations, as far as the inheritance is sufficient.* <230>
