A Précis of the Law of Intestate Successions
consisting of
A “Golden Chain” of French & Spanish Commentary
of the 17th-19th Centuries
by
J-Randal Trahan
Associate Professor of Law
Paul M. Hebert Law Center
Louisiana State University
2nd ed.
2001
PREFACE
The reference in the title is to St. Thomas Aquinas, who pieced together the writings of the early Church Fathers on the synoptic Gospels (Mark, Matthew, and Luke) to form a single, comprehensive patristic commentary, which he called the catena aurea, literally, the “golden chain.” Modeled on that commentary, the commentary I present here, far from being an original work, consists of excerpts from the writings of many of the leading civil law scholars in France and Spain during the 17th, 18th, and 19th centuries. To be sure, I have on occasion found it necessary, as did St. Thomas, to supplement or even to modify the ancient texts for various reasons. But these supplements and modifications (which I’ve indicated by the use of Roman-faced type) are few and far between.
The translations, unless otherwise indicated, are my own. As is true of all of my other translations of foreign legal materials, these may be used, in whole or in part, by anyone who may find them useful. There’s no charge and no need for attribution.
-1-
IIn general
ATheoretical foundations
1The "presumed will" theory
1. - Which heirs should the legislation call to successions ab intestat? Simple natural reason responds that the goods of which the deceased has not disposed ought to devolve to the members of his family. To transport his goods to families unrelated to the deceased would be to violate the rights of blood and the desire of nature. Thus, in all civilized nations, legislation has established that, as a general rule, the members of each family have the right to succeed from each other.
2. - Among these diverse relations, should the legislation arbitrarily govern the order in which some are called to succeed in preference to others? Should the legislation not, to the contrary, govern the order in conformity to the very order of natural and legitimate affections of the deceased whose goods it transmits? Should the legislation not dispose of the property as the deceased himself presumably would have disposed of them, if he had expressed his will?
3. - In presenting [to the legislature], in the name of the government, the title [of the French Civil Code] that now concerns us, Counsellor of State Treilhard said, "The legislation on successions is the presumed testament of every person who dies without having validly expressed a different will. It is important [for the legislator] to penetrate into all the natural and legitimate affections when [he] traces the order of succession: [by fixing that order, he] disposes of property for all those who die without having disposed of that property. The legislation presumes that the deceased had no other will than his own; the legislation must, then, dictate as the deceased himself would have dictated at the last instant of his life, if he had been able and willing to express himself. Such is the mindset within which one ought to reflect upon good legislation on this matter. Let each descend into his own heart: he will find engraved there in ineffable characters the true order of succession."[1]
4. - Upon presenting the legislation on successions to the French legislature, Counsellor of State Treilhard told the legislators that it is "the presumed will of every person who dies without having expressed a contrary will." This principle is at the foundation of all the dispositions of the [French Civil] Code that constitute the order of successions.
5. - In the case of death ab intestat, the legislation presumes that the deceased's affections have followed the direction of nature, that they were fixed on those to whom he was most closely tied by blood, and it calls them to his succession. Thus, whether it's in a testamentary succession or in a succession ab intestat, it is always the will of the deceased that disposes of property and that calls his heirs. In the former case, it is express; in the second, it is only tacit or presumed. That's the only difference.[2]
2The "natural duty" theory
6. - It is true that there is an order of successions founded on natural law and that reason teaches us that it would be unjust to deprive children, fathers and mothers, brothers and sisters, uncles and nephews of the reciprocal right of succession that they have by nature. Even so, families in civil society are exposed to the risk of becoming so dispersed and their interests to becoming so complicated that the principles which govern the order of successions in the simple mores of the primitive age of society become insufficient . . . . In any event, it is necessary to fix, by means of constant rules, the consequences of the natural law, which are difficult to seize hold of in the details.
7. - These rules proceed from the positive law. Public law scholars have sought to determine the principle that the legislature ought to follow so as not to wander off the right path as it establishes the order of successions.
8. - Grotius contended that the right to succeed ought to be founded on the presumed will of the deceased. He based this contention on a false principle, which he had also advanced, that the faculty of disposing of property by testament or instituting an heir is of the natural law. According to him, every transmission of property depends on the will of man. The will is express in contracts and testaments. It is presumed in successions ab intestat, for, since the deceased did not propose to leave his goods to the first owner or to the government after his death, those goods ought naturally to belong to him to whom it appears more likely the deceased wanted them to belong after his death.
9. - But in the manner in which this celebrated author [Grotius] develops this thought, one sees that he founded the right of succession less on the true will of the deceased that on that which he ought to want--on the deceased's duty rather than on his affections. Thus, as Puffendorf puts it, the will of the deceased in this matter is less presumed such as it was than such as it ought to have been, in conformity with the duties of man.
10. - From tracing the thought of these public law sages, it follows that, with respect to the transmission of the goods of the deceased after his death, there are certain principles of justice that must be followed independently of his will. A wise legislator should, no doubt, consider the different degrees of affection of the deceased. But he must not conclude from it, as have some authors who have written on the [French Civil] Code, that the legislation has no other responsibility to fulfill than to supplement the will of the man who dies without having expressed it. That would be to enslave the legislature to the will of particular persons, when what the legislature ought to do is to command their actions, to regulate the acts of their will, and to punish the deviations of that will.
11. - If the legislation serves only to supplement the will of the man who dies without having expressed it, then the legislation ought not to limit the faculty of disposition, to reduce excessive donations, or to annul those that are founded on disordered affections [all of which the legislation does]. Thus, it is not the affections or the presumed will of the deceased that the legislator ought to take as the rule. It is rather the deceased's will such as it ought to be--his will conformed to his duty.
12. - In the final analysis, then, it is on the duties of the deceased, rather than on his affections, that the order of successions ought to be regulated. . . . Here is the principle that ought to guide the legislator and that he ought not to push aside without the most pressing reasons. . . .[3]
BHistory
1Roman law[4]
13. - Justinian established a system of succession in Novella 118. This legislation took into consideration, for the transmission of goods, only the family relations between the deceased and the person capable of succeeding. It did not take into account either the nature or the origin of the goods; it gave no preference either to gender or to primogeniture; it did not allocate certain goods to the relatives of the paternal line rather than those of the maternal line. All that the deceased possessed, movables and immovables, formed a single mass, a single heredity, a single patrimony, regardless whether he acquired them by particular title or received them by universal title and regardless whether they proceeded from the succession of his father or his grandfather, from that of his mother or his grandmother, or from that of a collateral relative. As soon as these goods reached the deceased, they ceased to be paternal or maternal and were mixed up in such a fashion that their old origin was altogether forgotten or put aside.
14. - The mass of all these goods, movables as well as immovables, was deferred in its entirety, first, to the children and descendants of the deceased and, in default of descendants, to his ascendants, among whom the closest, be he paternal or maternal and without distinction of sex or of line, excluded the more remote. The only exception was in case of concourse between paternal and maternal grandparents, that is to say, between ascendants of the same degree, but of different lines. The succession was then partitioned by halves between the two lines, and an ascendant who found himself alone in one line took as much as several ascendants who found themselves in the other.
15. - The . . . siblings concurred with the ascendants, and shared the succession with them . . . . In default of descendants and ascendants of the deceased, his brothers and sisters and their children succeeded to him . . . .
16. - Finally, in default of brothers and sisters of the deceased, his succession devolved in its entirety to the nearest collateral relative, whether paternal or maternal, whether male or female, and whether united to the deceased by [full blood] or by [half blood] . . . .[5]
2Medieval customary law
17. - The mode of succession established by Justinian, which was followed in le pays de droit écrit[6], was very simple. To the contrary the customs, both in France and in a large part of the rest of Europe, followed altogether different principles. There it was admitted, as a fundamental maxim, that goods should always return whence they had come. It is that which was expressed by the rule known as paterna paternis, materna maternis[7], diversely interpreted in the different customs and followed in Brittany to its fullest extent.
18. - Thus, goods were especially affected to the family whence they had proceeded, be it from the side of the father, of the grandfather, etc. or from the side of the mother, grandmother, etc. Goods were distinguished into [i] goods of one's own [propres] and [ii] acquisitions [acquêts].[8] A succession formed different patrimonies and a person could have several sorts of heirs. There were nearly as many successions as there were natures of goods. One who died left an heir of movables and acquisitions, an heir of paternal goods of one's own, another of maternal goods of one's own; and, in order to determine those who were to receive the goods of one's own, one went all the way back to the most ancient common author from whom they had originally proceeded. A collateral relative, often very remote from and unknown to the deceased, received goods in preference to his father or his mother, according to the maxim propres ne remontent point[9] . . . .
19. - Movables and acquisitions ordinarily were divided between the two lines and subdivided to infinity among the different branches . . . of each line. The rule paterna paternis, materna maternis had caused the introduction into the customs of representation to infinity in the collateral as well as the direct line.
20. - From these maxims . . . there resulted a system of succession that was as tangled up as it is possible to imagine. This system had infinite variations in the details, in such a fashion that the legislation on successions was not the same under the different customs nor even under the extent of each general custom.
21. - The majority of these rules took their source in the feudal law . . . .
22. - However troubled the system of succession adopted by the customs may have been, it had the great advantage of keeping goods within the families from which they had come. It perpetuated families by maintaining their members in the affluence necessary for them to aid each other and to give their children a generous education. This was the wish of the ancient legislators, that of our customs, that of all good family fathers; and it is a natural and laudable desire provided it is contained within proper limits. And though the allocation of goods to the families from which they had proceeded was derived from the feudal law, the feudal law, one can say, found the principle of this institution in the natural law. If my brother had not existed, I alone would have received the estate of my father . . . . [I]f my brother happens to die without children, is it not just that the portion that he would have received from the goods of our common father come back to me by right of return? If my brother had not been born or if he had died before my father, I would have received those that formed his portion. By retaking them after his death, it is not a collateral succession that I receive; it is a portion of the succession of my father that comes back to me; it is a true right of return, as the ancient authors, profound observers of nature, qualified it. Lege redeunt hæreditates.[10] It is the expression consecrated by the jurisconsults and the classic authors who were the most conscientious about the propriety of words.
23. - If my brother leaves a child who dies without posterity, is it not again just that the goods that his father had shared with me in the succession of our common author return to me by the same right of return, rather than to give them to a "foreign" family? That family has no cause to complain, since it should receive the goods of the wife, as I receive those of the husband. The only things that remain to be partitioned between the two families are the fruits of the common collaboration of the husband and the wife or those that the common support of the two families would have been able to acquire itself by its industry.[11]
CBasic concepts
1Relations
aClasses: descendants, ascendants, collaterals, surviving spouse (CC art. 880)
24. - There are [four] orders of legitimate successions, corresponding to the [four] orders of persons that the laws call to successions. The first is that of children and other descendants; the second, of fathers, mothers, and other ascendants; . . .the third, of brothers and sisters and other relatives who are called collaterals;[12] and the fourth, the surviving spouse.
25. - Included under the name of . . . “descendants” are sons and daughters, grandsons and granddaughters, without distinction of sex or degree . . . .[13]
26. - The name[ ] . . . "ascendants" [is] used . . . to signify indistinctly all the persons from whom each draws his birth. In this sense the father and the mother are numbered among the ascendants . . . and this name is . . . appropriate for the grandparents and the others who are above them.[14]
27. - One calls "collaterals" all those who, though neither ascendants nor descendants of each other, descend either from the same father or the same mother of from another ascendant who is common to them. Thus, brothers and sisters are collaterals to each other; uncle [or aunt] and nephew [or niece] are collaterals to each other; and the same [is true] of cousins.[15]
28bis. The following chart represents these various relationships graphically:
PGGGPMGGGP
______|______|
|||
GGUPGGPMGGP
|____|______|
||||
1stC2RGAPGPMGP
||____|______|_____
||| |||
2ndC1R 1stC1RA F********MU
||____|_____|
|||||
3rdC2ndCX (dc)B1stC
|||||
3rdC1R2ndC1RSN 1stC1R
|||||
3rdC2R2ndC2RGSGN 1stC2R
|||||
3rdC3R2ndC3RGGSGGN 1stC3R
Key: A=aunt, B=brother, C=cousin, F=father, G=grand, GG=great-grand, M=mother, N=niece, P=parent, R=removed, S=son, U=uncle, 1=once, 2=twice, 3=thrice
Descendants:S, GS, GGS
Ascendants: F, M, PGP, MGP, PGGP, MGGP, PGGGP, MGGGP
Collaterals: B, U, A, N, GA, GN, GGU, GGN, 1stC, 1stC1R (both), 1stC2R (both), 1stC3R, 2ndC, 2ndC1R, 2ndC2R, 2ndC3R, 3rdC, 3rdC1R, 3rdC2R
28. - The surviving spouse is an heir only if the marriage, having endured up until the date of the deceased’s death, is dissolved only by virtue of that death. . . . The surviving spouse does not inherit when, at the moment of the death, the marriage had already been dissolved by divorce [or, in the case of a covenant marriage, by a judgment of separation]. . . . Finally, in the case of a null marriage, the survivor of the two spouses has no right in the succession of the spouse who dies first. It matters not, in principle, whether the annulment occurs prior to or after the death: because the nullity operates retroactively, the survivor is reputed never to have been the spouse of the deceased. Thus, if the annulment occurred before the death, the survivor can get nothing, whereas if the annulment has followed the death, the survivor must restore that which she had received. Nevertheless, this latter proposition is not always true. When the null marriage amounts to a putative marriage, its annulment is not retroactive, with the result that its past effects are maintained, including the successorial vocation that it had conferred. Thus, a surviving spouse who, by reason of her good faith, is entitled to the benefit of putativity completely retains the succession rights that she had acquired prior to the annulment.[16]
bDegrees & lines
29. - It is necessary to explain . . . what are the degrees of proximity and the lines that compose these degrees, for it is by these lines and these degrees that one sees what the proximity between two persons is . . . .
30. - As the proximity between two persons comes either from their having descended from each other, which creates the relation of ascendants and descendants, or from their having descended from the same person, which creates the relation of collaterals, the proximity between two persons is judged by the number of generations that one or the other of these relations [entails]. And one calls these generations "degrees": by means of them, one goes from one person to the other to make the calculation of their relatedness, in the manner that will be explained in the articles that follows.