Since therefore every one has a right to transfer his goods to others, and that alienation may be made upon any conditions (§267); the consequence is, that it may be made upon this condition, that another may obtain, after the alienator’s death, the dominion and possession of a thing. Now, since this will may be truly declared, or can be certainly inferred from the intention of the acquirer; and since, in neither of these cases, the real and express acceptance of the other person to whom the transferrence is made, is necessary (§284); the former comes under the name of succession to a last-will or testament; and the latter is the genuine foundation of succession to a person who dies intestate.
Of derivative acquisitions by succession to last-will and to intestates.
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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.*
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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>
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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>
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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>
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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.
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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>
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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>
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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.
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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.
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