« PreviousContinue »
renouncing, although he himself have not accepted it, and even in case he was ignorant that the succession was opened in his favour.
ART. 939.-The second effect of this right is to authorize the heir to institute all the actions, even possessory ones, which the deceased had a right to institute, and to prosecute those already commenced. For the heir, in every thing, represents the deceased, and is of full right in his place as well for his rights as his obligations.
ART. 940. — Though the succession be acquired by the heir from the moment of the death of the deceased, his right is in suspense, until he decide whether he accepts or rejects it.
If the heir accept, he is considered as having succeeded to the deceased from the moment of his death; if he rejects it, he is considered as never having received it.
ART. 941.—The heir, who accepts, is considered as having succeeded to the deceased from the moment of his death, not only for the part of the succession belonging to him in his own right, but for the parts accruing to him by the renunciation of his co-heirs in the succession of the deceased.
ART. 942.--When all the heirs in the nearest degree renounce the succession, which is accepted by those in the next degree, these last are considered as having succeeded directly and immediately to the rights and effects of the succession from the moment of the death of the deceased.
Therefore the heirs, thus succeeding by the renunciation of relations nearer in degree, transmit the succession to their own heirs, if they die before having accepted it, in the same manner as if they had succeeded in the first degree to the deceased.
ART. 943.-Natural children and the surviving husband or wife, before being put into possession of the
estate left to them, are not considered as having succeeded to the deceased from the instant of his death; but they do not the less transmit their rights their heirs, if they die before having made their demand to be put into possession. The reason is, that this sort of heirs having only a right of action to cause themselves to be put into possession of successions thus falling to them, this right and this action form a part of the succession, which they transmit to their heirs.
Of the Incapacity and Unworthiness of Heirs.
ART. 944.—The incapacity of heirs is the absence of those qualities required in order to inherit at the moment the succession is opened. He who wants these qualities at this time cannot be the heir.
It is at the moment of the opening of the succession that the capacity or incapacity of the heir, who presents himself to claim an intestate succession, is considered.
ART. 945.-All free persons, even minors, lunatics, persons of insane mind and the like, may transmit their estales ab intestato and inherit from others.
Slaves alone are incapable of either.
ART. 946.-The incapacity of heirs is not presumed. He who alleges it must prove it.
ART. 947.-In order to be able to inherit, the heir must exist at the moment that the succession becomes open.
ART. 948.-The child in its mother's womb is considered as born for all purposes of its own interest; it takes all successions opened in its favour since its conception, provided it be capable of succeeding at the moment of its birth.
And the child legitimated by a marriage posterior to its conception, only takes those successions which are opened since the marriage of the father and mother.
ART. 949. Nevertheless, if the child conceived is reputed born, it is only in the hope of its birth; it is necessary then that the child be born alive, for it cannot be said those who are born dead, have ever inherited.
ART. 950.-When the child is born alive, though it may have been extracted by force from its mother's womb, and may have lived but an instant, provided the fact of its living be ascertained, it inherits the successions opened in its favour since its conception, and transmits them accordingly.
ART. 951.-There are two things to be proved in order to vest the child with the right of inheriting; one, that the child be conceived at the moment of the opening of the succession; the other, that the child be born alive.
ART. 952.-In order to ascertain if the child has been conceived in marriage, and can inherit from the husband deceased after its conception, reference must be had to the rules concerning the filiation of legitimate children established in the title of father and child.
ÅRT. 953.-In all cases, in which the husband cannot, by law, contest the legitimacy of the child, born before the hundred and eightieth day of marriage, he will have a right to the succession of this child and to those successions which fall to the child, in the same manner as if the child had been regularly legitimated.
ART. 954.-If the mother marry again within two months after the death of her husband, and a child is born five months after the second marriage, if the child be born capable of living, it is considered the issue of the first marriage, and is admitted to the succession of the first husband.
ART. 955.-In the calculation of the number of months necessary for a child to be considered as born capable of living, thirty days are counted for each month, and the day begun is counted for a whole day, because it is for the interest of the child.
ART. 956.-Though in general it is incumbent on those who allege incapacity to inherit to prove it, nevertheless, those who claim rights under the child, on account of its having survived, are bound to prove that it was conceived at the time the succession was opened, and that it came into the world alive.
ART. 957.-With regard to the proofs necessary to establish the existence of the child at the moment of its birth, it must not be determined that it was born alive by the simple palpitation of its members, but by its respiration, or by other signs which demonstrate its existence.
ART. 958.—They are called unworthy, in matters of succession, who, by the failure in some duty towards a person, have not deserved to inherit from him, and are in consequence deprived of his succession: - ART. 959.There is this difference between being unworthy and incapable of inheriting, that he who is declared incapable of inheriting, has never been heir, whilst he who is declared unworthy, is not the less heir on that account, if he has the other qualities required by law to inherit. Thus a person unworthy of inheriting remains seized of the succession, until he is deprived of it by a judgment, which declares him divested of it for cause of unworthiness.
ART. 960.-Persons unworthy of inheriting, and, as such, deprived of the successions to which they are called, are the following:
1. Those who are convicted of having killed, or attempted to kill the deceased; and in this respect they will not be the less unworthy, though they may
have been pardoned after their conviction ;
2. Those who have brought against the deceased some accusation found calumnious, which tended to subject the deceased to an infamous or capital punishment; 3. Those who, being apprized of the murder of the deceased, have not taken measures to bring the murderer to justice.
ART. 961. — The unworthiness is never incurred by the act itself; it must be pronounced by the court in a suit instituted against the heir accused of unworthiness, after he has been duly cited.
ART. 962.-Not denouncing the murder of the deceased shall not be opposed as a cause of unworthiness in the heir, if such heir is the husband or wife or the murderer, or his relation in the ascending, descending or collateral line, down to the third degree inclusively.
ART. 963.-If the heir be declared unworthy of inheriting by a definitive judgment, he shall be condemned to deliver to the relations succeeding on his default, or those who have succeeded jointly with him, not only the effects of the succession of which he has had the use since its opening, but all the fruits, revenues and interest he has derived from such effects, since the opening of the succession.
ART. 964.—The heir being legally seized of the succession, until a definitive judgment be pronounced declaring that he is unworthy, and that he be divested of the succession, all sales, which he may have made of the property of the succession, are valid, provided they have been made without fraud on the part of the purchasers.
The sales are also valid, though they may have been made since the institution of the suit to determine the unworthiness of the heir, if the purchasers had not and could not have been informed of its being instituted.
But in all cases the heir, thus divesled of the succession, shall be condemned to restore the price of these sales, with interest from the day of the demand, and the relations who succeed on his default, after his destitution is pronounced, shall alone have the right to exact and receive the sums remaining due on the price of these sales, from the purchasers.