The Philosophy of Law: Supplementary Explanations, VII: On Inheritance and Succession
As regards the ‘Right of Inheritance,’ the acuteness of the Reviewer has here failed him, and he has not reached the nerve of the proof of my position. I do not say (§ 34, p. 136) that ‘every man necessarily accepts every thing that is offered to him, when by such accept ance he can only gain and can lose nothing;’ for there are no things of such a kind. But what I say is, that every one always in fact accepts the Right of the offer of the thing, at the moment in which it is offered, inevitably and tacitly, but yet validly; that is, when the circumstances are such that revocation of the offer is impossible, as at the moment of the Testator’s death. For the Promiser cannot then recall the offer; and the nominated Beneficiary, without the intervention of any juridical act, becomes at the moment the acceptor, not of the promised inheritance, but of the Right to accept it or decline it. At that moment he sees himself, on the opening of the Testament and before any acceptance of the inheritance, become possessed of more than he was before; for he has acquired exclusively the Right to accept, which constitutes an element of property. A Civil state is no doubt here presupposed, in order to make the thing in question the property of another person when its former owner is no more; but this transmission of the possession from the hand of the dead (mort-main) does not alter the possibility of Acquisition according to the universal Principles of Natural Right, although a Civil Constitution must be assumed in order to apply them to cases of actual experience. A thing which it is in my free choice to accept or to refuse unconditionally, is called a res jacens. If the owner of a tiling offers me gratuitously a thing of this kind,—as, for instance, the furniture of a house out of which 1 am about to remove,—or promises it shall be mine, so long as he does not recall his offer or promise, which is impossible if he dies when it is still valid, then I have exclusively a Right to the acceptance of the thing offered (jus in re jacente); in other words, I alone can acceptor refuse it, as I please. And this Right, exclusively to have the choosing of the thing, I do not obtain by means of a special juridical act, as by a declaration that ‘I will that this Right shall belong to me;’ but I obtain it without any special act on my part, and merely by the law (lege).
I can therefore declare myself to this effect: ‘I will that the thing shall not Mong to me’ (for the acceptance of it might bring me into trouble with others). But I cannot will to have exclusively the choice as to whether it shall or shall not belong to me; for this Right of accepting or of refusing it, I have immediately by virtue of the Offer itself, apart from any declaration of acceptance on my part. If I could refuse even to have the choice, I might choose not to choose; which is a contradiction. Now this right to choose passes at the moment of the death of the Testator to me; but although instituted heir by his Will (institutio hcvrcdis), I do not yet, in fact, acquire any of the property of the Testator, but merely the juridical or rational possession of that property or part of it, and I can renounce it for the benefit of others. Hence this possession is not interrupted for a moment, but the Succession, as in a continuous series, passes by acceptance from the dying Testator to the heir appointed by him; and thus the proposition testamcnta sunt juris naturae is established beyond all dispute.