遗产继承相关法律文献xin

1、1918 Rudolpf Huebner, History of Germanic Private Law (1918)  Testamentary Succession (" Vertrauensmann ") of the testator endowed with independent rights, who exercises such rights in his own name although in the interest of the heirs. For this independent right is limited in the old

2、 way by the requirement that it must be exercised in accord with the will of the testator. In fact there is still visible in the modern executor a plain trace of the primitive idea of a representa- tion of the dead.' Whether an executor shall or shall not be named depends upon the testator's

3、 will; and his powers are also deter- mined in the same manner. Statutory rules take effect, in essen- tial matters, only in default of and as a supplement to the testa- tor's directions. The executor is responsible to the heirs and legatees for the performance of his obligations; but he is also

4、 subject to the continual oversight of the probate court. 1 Brunner, "Geschichte," I (2d ed.), 40. 遗嘱人赋予的独立权利,练习这些权利在自己的名字虽然继承人的利益。独立的权利是有限的老方法的要求必须执行协议遗嘱人的意愿。事实上,仍然是可见的现代执行者的平原跟踪原始想必死人的。“遗嘱执行人应当还是不得命名取决于遗嘱人的遗嘱,他的权力也阻止-以同样的方式开采。法定规则生效,在埃森-多弧离子镀问题,只有在违约和介壳作为一个补充tor的方向。负责继承人和遗嘱执行人人的表现他的义务;但他

5、也遗嘱检验法院的持续监督西洋的遗产继承“可以专凭立遗嘱人的意旨，而战前日本的只归长子长孙继承。” 而中国过去民间的遗产继承“却是兄弟之间平分，长子长孙虽多有一份，但不过是一点意思，乃至姊妹虽不分产，可是必定竭力办嫁妆，那所费亦与分产相差无几。此外还要留起茔田，虽是怎样的地主，经过一分再分亦都变成中小农了。” “西洋及战前日本的遗产制度是对产业负责，而中国则对人远比对产业看重。中国人亦羡门弟，亦爱产业，可是仍有人的洒脱，如说王侯将相本无种，如说穿的哪有穷到底，富的哪有富到底，毕竟气概不凡。” 的确，西方（包括西方式的日本）由于更看重产业的稳定，现在我们看到不少百年企业，做得很大很大。而中国却几乎

6、没看到。 但客观上，如 胡先生所说，“中国只是不堕产业竞争”，市场太大，中国人的欲望又不高。中国人更看重人本身，不偏不倚，家庭和谐、和睦才是根本。另一方面，中国历史都是一长制，如果老大是个弱者或是败家子，那就是整个家族的不幸了。反过来说，中小企业更有发展动力和活力，也未尝不是激励后代，毕竟未来靠的是自己。1 William Markby, An Introduction to Hindu and Mahommedan Law: For the Use of Students (1974) 关于印度的 CHAPTER II THE LAW OF SUCCESSION TO PROPERTY: T

7、ESTAMENTARY SUCCESSION AT first sight there appears to be the strongest possible contrast between the origin of the Mahommedan law and that of the Hindu law as regards succession to property.（在印度这个法起源） The Hindu law of succession begins, as one may say, nowhere. Its origin is lost in obscurity, and

8、it has been gradually developed by the modification of the joint family, from which it is not as yet completely separated. The Mahommedan law seems to begin with a few dry precepts in the Koran, not very unlike those which might be found in an Act of Parliament., Yet even in the Mahommedan law we fi

9、nd traces of an earlier stage which bears a strong resemblance to the more primitive forms of succession which we meet with nearly every- where, both in Europe and in India. This I shall examine presently. Under the Mahommedan law the power of a man to dispose of his property by will is and always h

10、as been recognized, but this power is not unlimited.2 One limita- tion is that whatever a Mahommedan disposes of by will must be given to a stranger. A bequest to an heir is void. A second limitation is that the portion of the property disposed of by will must not exceed one-third of MAHOMMEDAN LAW

11、the whole estate, after paying the debts and funeral expenses. The rule that a man cannot make a bequest to his heir is peculiar to the Mahommedan law. The other rule, restricting the power of disposition to a portion of his property, is a very usual one. We find a similar restriction in the Roman l

12、aw, the French law, and the law of most continental countries in Europe. It is, in fact, the general rule that the heirs may claim their pars legitima. The rule in England that a man may totally disinherit his own relations is peculiar. A bequest which would be otherwise invalid as exceed- ing the t

13、estamentary power is rendered valid by the assent of the heirs., If a Mahommedan dies leaving a will, first, the debts and funeral expenses must be paid, and then the be- quests, or legacies as they are called, so far as they are valid. The residue is then divided amongst the heirs. A Mahommedan may

14、 appoint a person to administer his estate after his death. The person so appointed is called a wasi, which is generally translated by the English word executor. An executor, however, is not the same as a, wasi. The wasi, it is true, like the executor, gets in what is due to the estate, pays off the

15、 creditors, and generally winds up the affairs and dis- tributes the surplus. But he is only a manager. He does not become the owner of the property at any time, whereas the property actually vests in the executor; nor does the wasi represent the deceased : he represents those who are beneficially i

16、nterested in the estate. There is no restriction as to the form of a testamentary disposition under the Mahommedan law. It is not even necessary that it should be in writing. Provided that ' Nevertheless the transaction retains its testamentary character, and the legatee derives his title from t

17、he testator, and not from the heirs. 116 THE LAW OF SUCCESSION not more than one-third of the property is disposed of, the disposition will be valid in whatever way it may be expressed. If the one-third is exceeded, each legatee must abate a proportion of his legacy. I have now to deal with certain

18、dispositions of property made in contemplation of death, but not made by will. A will is essentially a disposition of property which is revocable. In this respect it differs from a gift, which, when complete, is not generally revocable, though it may be so under certiin circumstances. The restric- t

19、ions applicable to wills, therefore, would not apply to gifts, even when made in contemplation of death, and a man about to die might give away his property as he pleased. When people are in health they are not generally over-anxious to get rid of their property. But when they feel the approach of d

20、eath they are much more inclined to do so. Unless, therefore, some restric- tion were put upon death-bed dispositions of property, not only heirs at law would be disappointed of what the Mahommedan law considers to be their just expectations, but creditors might be defrauded of their rights. The Mah

21、ommedan law, therefore, contains some very simple and wise provisions for preventing reckless or unjust dispositions of property made on the approach of death. In the first place, a man who is 'sick' can only dispose of one-third of his property by gift, so that in this respect he is in the

22、same position as if he were making a will. I have used the expression 'a man who is sick', because that is the word generally used by writers on Mahommedan law, but really the prohibition only applies where the donor is 'sick unto death'. If he recovers, the gift is good, whether or

23、no it exceeds the one-third. There was formerly also a rule restricting a sick man's power to enfranchise his slaves, which, so long as slavery was lawful, was necessary, because enfranchisement pro- 117 MAHOMMEDAN LAW duced exactly the same result, as if so much money had been bequeathed away f

24、rom the heirs. The Mahom- medan lawyers, therefore, in calculating whether more than one-third of the property had been disposed of, always included in their calculation of the one-third the value of the slaves who had been enfranchised, either by a sick man or by will. The analogy between this rest

25、riction of the Mahom- medan law and that of the Lex Furia Caninia of the Roman law is obvious. Another kind of disposition of property which is brought under restriction by the Mahommedan law is that which Mahommedan lawyers call mohabat. Besides giving away his property, a man may exercise his boun

26、ty in other ways. The transaction may wear the appearance of a bargain, and yet in reality the in- tention may be that one party should gain at the expense of the other : and if gifts alone were prohibited, people would be very likely to dispose of their property under cover of such bargains. Thus s

27、uppose A, who is dying, wants to make a present of a valuable property, say a house, to B. A is afraid that if he gives the house to B, the gift will be invalid as exceeding the one-third which he is allowed to dispose of. He therefore goes through the form of selling the property to B for a triflin

28、g sum. Now wherever a transaction is found to be of this character-wherever the intention is not to make a bargain but to confer a benefit on the nominal pur- chaser-whenever, as the Roman lawyers say, there is liberalitas and lucrativa causa, it will be regarded by the Mohammedan lawyers as.mohabat

29、: and come under the restriction. The restriction is that, if the transaction takes place during 'sickness', that is, during the last illness, the loss to the estate which is caused by the transaction must be reckoned when the computation is 118 made of the disposable one-third. Thus ifA on

30、his death- bed has sold to B a house worth R5,000 for R500, the transaction would be regarded as mohabat, and reckoned as a disposition of property to the extent of R4,500. If, then, A has given a legacy of 11,000, and another legacy of R500, and the whole value of the property was only R15,000, the

31、 one-third would be exceeded, and there would have to be a reduction. But the mohabat trans- action takes precedence of legacies. In the case put, therefore, B would keep the house, and the reduction would fall entirely upon the two legacies. There is still another mode in which property may be disp

32、osed of in favour of persons whom the owner desires to benefit; namely, by acknowledging a debt in favour of a person to whom nothing is really due. Such an expedient is mentioned by Mahommedan writers on law as being sometimes resorted to: and it would have been consistent with principle to put suc

33、h acknowledgements, if made during sickness, under restriction. This, however, has not been done; perhaps through fear of the extreme discredit which attaches to the memory of a deceased Mahommedan, if his debts are not fully paid; a fear which almost amounts to a superstition. The amount of debts,

34、therefore, which may be acknowledged on a death- bed is unlimited. But no acknowledgement of a ficti- tious debt can be made in favour of an heir, so that the rule which prohibits a bequest of property in favour of an heir cannot be infringed by this indirect method. So, too, what Mahommedans call d

35、ebts of health are paid before debts of sickness. And a debt acknowledged upon a death-bed cannot be made chargeable upon any specific portion of the property. INTESTATE SUCCESSION I have now laid down the principal rules of the Mahommedan law relating to testamentary succession, 119 7.1 American-Co

36、lombian Private International Law (1956)  SuccessionIN PRIVATE INTERNATIONAL LAW if such a will has been admitted to probate in the United States, its validity will then be recognized in Colombia upon presentation of a duly certified copy. The official court record of probate in the United Stat

37、es will be deemed equivalent to a public instrument. The "exception cases" usually result in fractioning the estate, making property in Colombia governed by Colombian law, to the exclusion of the law of the domicile.87 The text of article 1053 is consistent with the rule of article 1012 an

38、d with the constitutional provision as to equality (supra, p. 27). Aliens have the same rights as nationals in successions opened in Colombia. It is an application of the principle that succession is governed by the lex domicilii and is a logical consequence of article 1012. The capacity of aliens t

39、o inherit in Colombia, when the succes- sion is opened in Colombia, is measured by Colombian law. If the succession is opened outside of Colombia, Colombian law not being interested, the capacity to inherit is fixed by the law of the place where the succession is opened.8 Article 1054,89 as we have

40、noted, introduces another exception to the rule of the law of the domicile. This article makes no distinction between successions opened in Colombia and those opened abroad. In either event, the law applicable for Colombian heirs or other inter- ested Colombians, consonant with the principle of arti

41、cle 19, is Colombian law. In the intestate succession of an alien who dies either in Colombia or abroad, Colombian nationals will be given, by inheritance, conjugal the decisions of the courts are adverse to recognizing its validity because they BILATERAL STUDIES portion or right to support (aliment

42、os), the same rights they would have in the intestate succession of a Colombian. Two conditions are necessary for the applicability of article 1054: (a) that Colombian heirs or claimants are involved; (b) that the rights of such Colom- bians are prejudiced by the law of the domicile. If such law giv

43、es Colombian heirs equal or greater rights than under Colombian law, article 1054 is not invoked.9 Who are relatives? If all claimants are foreigners, the foreign law will determine the persons who are entitled to a share in the estate, that law being the law of the place where the succession is ope

44、ned, and if part of the estate is to be administered in Colombia, the Colombian courts, pursuant to art. 1012, will follow the foreign law. On the other hand, if there are Colombian claimants, the question whether or not they are relatives entitled to share will be determined by Colombian law, that

45、being a question of personal status of Colombians. Is article 1054, although limited in language to intestate succession, applicable also to testamentary succession? Yes. In other words, the testator, if he has Colombian forced heirs or dependents, does not enjoy freedom of testation. The forced hei

46、r, if a Colombian, is enti- tled to his l6gitime. I have found only one case in the reports applying article 1054. The Panama Supreme Court, in dealing under the Colombian Code still in force in Panama at the time of the decision, with the estate of a naturalized American citizen domiciled in New Yo

47、rk, granted a suit to amend his will.91 Under his will, the testator had disinherited the children of a deceased daughter. The Court held such children to be forced heirs, who could not be deprived of their legitime, reason- ing that said deceased daughter had been born in Panama, had not lost her P

48、anama nationality by marriage to an American and that her children were entitled to take by right of representation. The Court 90 Caicedo Castilla, op. cit., n. 17, p. 336, citing Restrepo Hernindez who says that art. 20 Civil Code is one of the exceptions to art. 1012 and concludes that testamentar

49、y clauses in so far as they are realized in Colombia or affect national rights or interests are subject to Colombian law. Caicedo Castilla, contra: art. 1012 is a special principle and therefore prevails over the general principle of art. 20; the execution of testamentary provisions is governed by t

50、he law of the domicile, except in the case of art. 1054. Caicedo Castilla's theory for holding article 1054 applicable to testate succession is that if the testator ignores forced heirs in his will, the succession to that extent would be considered intestate, as the testator could have made no l

51、egal disposition of his property (p. 337). 91 Estate of Lindo, July 7, 1916, Registro Judicial, Afio XIV, vol. XIII, No. 79, 743-746. IN PRIVATE INTERNATIONAL LAW limited the reform of the will to the real and personal property situ- ated in Panama "since the Panama courts lack jurisdiction to

52、make any order in respect of property in a foreign country." The decision is unquestionably sound that a married woman did not lose her Colombian (Panama) nationality by marrying an alien, but the decision of the court ignored the point that the deceased daughter being a minor at the time of he

53、r father's naturalization in the United States, had thereby acquired American citizenship. And if it was protecting the mother as a Panama citizen, why did it not fully apply article 1054? The court did not refer to the second part of article 1054, probably because the plaintiff's grandchild

54、ren could in no event claim Panama citizenship but were clearly Americans. Giving them rights by way of representation of the mother seems a doubtful proposition not required by article 1054.92 There was a strong dissenting opinion to the effect that the succession was governed by the law of New Yor

55、k; that an alien domiciled abroad could validly make a will disposing of his property in Panama. The dissenting judge interpreted article 1054 as applicable only to intestate succes- sion; that article 20 of the Civil Code did not inhibit the will in ques- tion, but merely required that the formalit

56、ies of the local law, e.g., as to inventory, valuation, registry, etc., be carried out.93 Intestate Succession. Under Colombian law, as in the United States, succession may be partly testate, partly intestate. The old Roman rule has been discarded. The last paragraph of article 1054 is extended to t

57、he succession of Colombians who die leaving property in a foreign country.94 Wills Executed Abroad. A Colombian abroad may execute a will either in conformity with the law of the place of execution or in the Colombian form before a diplomatic or consular official of Colombia. Aliens, in Colombia, in

58、 order to make a valid will in Colombia must follow the Colombian formalities. The rule locus regit actum is in this respect deemed imperative.95 Whatever may be its effect BILATERAL STUDIES in their own country, a will executed before a diplomatic or consular official in Colombia would be accorded no r