The Philosophy of Law: Private Right, § 34: Acquisition by Inheritance
INHERITANCE is constituted by the transfer (translatw) of the Property or goods of one who is dying to a Survivor, through the consent of the Will of both. The Acquisition of the HEIR who takes the Estate (hceredis instituti) and the Relinquishment of the TESTATOR who leaves it, being the acts that constitute the Exchange of the Mine and Thine, take place in the same moment of time—iTi articulo mortis—and just when the Testator (.eases to be. There is therefore no special Act of Transfer (translatw) in the empirical sense; for that would involve two successive acts, by which the one would first divest himself of his Possession, and the other would thereupon enter into it. Inheritance as constituted by a simultaneous double Act is, therefore, an ideal Mode of Acquisition. Inheritance is inconceivable in the State of Nature without a Testamentary Disposition (dispositio ultima wluntatis); and the question arises as to whether this mode of Acquisition is to be regarded as a Contract of Succession, or a unilateral Act instituting an Heir by a Will (testamentitm). The determination of this question depends on the further question, Whether and How, in the very same moment in which one individual ceases to be, there can be a transition of his Property to another Person. Hence the problem as to how a mode of Acquisition by Inheritance is possible, must be investigated independently of the various possible forms in which it is practically carried out, and which can have place only in a Commonwealth.
‘It is possible to acquire by being instituted or appointed Heir in a Testamentary Disposition.’ For the Testator Cains promises and declares in his last Will to Titius, who knows nothing of this Promise, to transfer to him his Estate in case of death, but thus continuing as long as he lives sole Owner of it. Now by a mere unilateral act of Will, nothing can in fact be transmitted to another person, as in addition to the Promise of the one party there is required Acceptance (acceptatio) on the part of the other, and a simultaneous bilateral act of Will (voluntas simultanca) which, however, is here awanting. So long as Cains lives, Titius cannot expressly accept in order to enter on Acquisition, because Cains lias only promised in case of death; otherwise the Property would be for a moment at least in common possession, which is not the Will of the Testator.—How ever, Titius acquires tacitly a special Right to the Inheritance as a Real Right. This is constituted by the sole and exclusive Right to accept the Estate (jus in re jacente), which is therefore called at that point of time a hccreditas jaccns. Now as every man—because he must always gain and never lose by it—necessarily, although tacitly, accepts such a Right, and as Titius after the death of Cains is in this position, he may acquire the succession as Heir by Acceptance of the Promise. And the Estate is not in the meantime entirely without an Owner (res nullius), but is only in abeyance or vacant (vacua); because he has exclusively the Right of Choice as to whether he will actually make the Estate bequeathed to him, his own or not.
Hence Testaments are valid according to mere Natural Right (mnt juris naturce). This assertion, however, is to be understood in the sense that they are capable and worthy of being introduced and sanctioned in the Civil state, whenever it is instituted. For it is only the Common Will in the Civil state that maintains the possession of the Inheritance or Succession, while it hangs between Acceptance or Rejection and specially belongs to no particular individual.