Второй отдел. Наследство по закону

Chapter one. General principles of inheritance law § 32. General concepts of inheritance and hereditary succession. – The relationship of a will to legal inheritance. – Roman dominance of the testamentary principle and its denial in German law. – Historical development of the hereditary order in Roman law. – Admission to inheritance of blood relatives Inheritance is the transfer of property with all rights and obligations from one person to another on the occasion of death. Property in the ideal sense (see the 1st part of § 2) is the totality of all rights and obligations belonging to a person in relation to all objects that are included in the circle of his legal personality, legal authority. Of these rights and duties, others - however, few - are so closely connected with his personality that they disappear with it completely. These include: personal servitudes, usufruct, lifelong possession (we, for example, have the right of the widow to ask for the specified portion), the right to maintenance (alimenta), life annuity, - under certain conditions, the right to sue for personal injury. But for the most part, these rights and obligations do not disappear and cannot disappear with the death of a person, due to their objective nature, or are rooted in legal relations that continue regardless of will and chance: the firmness of a civil union does not allow them to disappear. The concept of a thing, as an object of the external world, can still be maintained without the concept of the person to whom it is associated; but as soon as an object has become property, it can no longer be imagined without a person and a holder. Therefore, with the death of a person who was the holder of rights and obligations over property, the question arises in civil society as to who will then be the holder of these rights and obligations. Someone must be the successor of the deceased, if only something remains after him, with which the concept of civil and legal rights and obligations is connected. This successor is an heir. The set of rights and obligations regarding property in which succession takes place is called inheritance; and the entry into rights and obligations of the successor is called inheritance. So, the concept of inheritance indicates, on the one hand, the acquisition of property by the heir, and in this sense, inheritance is one of the legal methods of acquisition; on the other hand, it indicates the continuation of the civil personality of the deceased in the person of his heir. In this latter sense, it would seem that the same unity of personality should exist in the heir as we see in the deceased, but, as will be discovered later, the historical development of inheritance law leads to the concept of several heirs after one person, to the fragmentation of the inheritance among many. This comes from the fact that inheritance is closely related to family law and the development of the individual within the family. The question of who should be the heir depends on considerations of family law, on the concepts existing in a given era: firstly, about property and property in relation to the family and about the power of the head of the family over its members; secondly, about the mutual relationship of family members among themselves and towards the common head of the family. Individuals are called to inheritance, firstly, on the basis of the election by the personal will of a deceased patrimonial owner; secondly, on the basis of the closest blood connection between them and the deceased patrimonial lord. In these subjects, the concepts, customs and laws of different peoples present the greatest diversity. They are so closely connected with the internal conditions of local opinion and development that it is not possible to determine in general terms the order of inheritance. In this regard, the research is especially interesting: 1) about the relationship of testamentary law to inheritance law; 2) on the development of the order in which relatives are called upon to inherit. A testamentary disposition, as the right of an owner to dispose of his estate in the event of death, at his own will, in favor of anyone, is not consistent with the original state of social life, in which the family, based on a religious idea, dominates over individuals. In this state, the estate, the integrity of which is inextricably linked with the integrity of the family religion, is considered to belong to the family, and upon the death of the owner, it passes within the family under the authority of the one who follows by custom and right. The latest research has proven that the ancients, in the first era of social life, did not know a will (see F. de Coulanges - la cité antique). Judging by all the signs, the ancient life of the Roman people was no exception in this regard; but in the law of the Twelve Tables, among the most distinctive and indisputable rights of a Roman citizen is the right to make wills regarding his property (paterfamilias uti legassit ita jus esto). Since that time, the power of the testator has been in Roman law the most defining attribute of that right of property, of which the Romans were the first to introduce a strict image into the circle of legal concepts. In Rome, the main law of inheritance became the will of the testator, and only when there was no will left after the deceased, inheritance according to the rule of law was allowed, as a necessity. That is why among the Romans, testamentary inheritance was represented as the positive side of the institution, and inheritance by law - as the negative side, and was called successio ab intestato. In the event of a collision between these two principles in property and in case of doubt, the first took a decisive advantage over the latter. According to the Roman concept, testamentary law is incompatible with legal inheritance, in the property of the same deceased patrimonial owner (nemo pro parte testatus, pro parte intestatus decedere potest. Farum rerum naturaliter inter se pugna est, testatus et intestatus). Whoever declared his last will regarding property, it cannot be said that his will did not exist, or that his will was different; it is impossible to substitute a legal will instead of his own will. By virtue of this rule, the legal inheritance among the Romans could not extend even to that share of property that was silent in the will - this share in any case went to the heirs named in the will, and when one of them turned out to be retired or incapable, his inheritance was added to the inheritance of the other heirs under the will (few exceptions to this rule were allowed - for example, in soldiers' wills, with querela inofficiosi test. etc.). A completely different view is opening up in the new European society among the Germanic peoples - and it is completely consistent with the character of the German family, which was indicated above, and with the state of social life in which the Germans found the Romans at their first collision with them. A will was not at all the custom. Inheritance law was based solely on the natural blood connection of family members with each other, so that upon the death of a person, his immediate blood relatives entered into the inheritance (in Tacitus: heredes successoresque sui cuique liberi et nullum testamentum. Si liberi non sunt, proximus gradus in successione fratres, patrui avunculi). That is, in legal inheritance the positive beginning of this institution was expressed among the Germans, not like in Rome, and testamentary law developed among them only later. But wills in German law only gradually extended to real estate. At first, the opinion prevailed that a person, preparing to die, does not have the right to deprive his relatives of property, even movable property, in favor of strangers. If a person was allowed, during his lifetime or before his death, to divide or arrange his estate among family members, then this series was limited to a close circle of close people - direct heirs and had nothing to do with the Roman testament, i.e. with the automatic right of a Roman citizen to create an heir for himself. Then this idea softened, especially under the influence of the idea that a dying person needs to arrange his soul (vermachen), and therefore he can make orders about movables - for the soul, for the sake of God. That is why the first testamentary dispositions had a religious, church quality (Seelgeräthe, Seeldinge). Then, little by little, the circle of testamentary dispositions began to expand, under the influence of church and Roman law. So, in the German concept of inheritance there was a fundamental difference from the Roman one. According to the Roman concept, inheritance served as the main continuation of the personality of the deceased in terms of property; in German, it stemmed from family law, from blood law. The Roman owner himself established by his private will the law of inheritance for his property, and outside of this will no one could have any claims or expectations for it. According to the German concept, everyone had his own blood heir by nature (Deus, non homo, facit heredes), so that during the life of the owner it is possible to indicate who his heirs by blood are in property that was considered in itself hereditary. Even if the owner was alive, his heirs had the right of expectation, the so-called Wartrecht, by virtue of which they could oppose his orders in favor of strangers. This is not the place to consider the details of the historical development of inheritance law among different peoples, but it is necessary to point out the main principles under the influence of which it developed, and the main modifications of these principles. According to the natural order, inheritance goes to the family, i.e. to those relatives who are closest to the deceased. The question is: who is closer? In Rome, where the family had a strictly legal character, hereditary rights initially flowed from the parental authority, and the circle of inheritance was limited to members of the civil family, i.e. persons who were in the parental authority of the deceased or would have been if the head of the family was alive. These persons were called agnates; on the contrary, one relationship by blood, or cognatio, was not considered a basis for inheritance, and even persons who left the civil family and from parental authority (through emancipation) did not have inheritance rights. As the civil family disintegrated, the natural meaning of the blood or natural family was more clearly indicated, and consanguinity declared fair grounds for inheritance. This is where the gradual transformation of Roman inheritance law took place, culminating under Justinian with the famous 118 novel, in which consanguinity, or cognacy, has already been decisively recognized as the main basis of inheritance law. According to the original law, heirs were called upon to inherit in three orders or classes (ordines), which embraced exclusively the circle of persons who, under parental authority, constituted the house of the deceased patrimonial owner. In the first class was the home or family in the closest possible scope: the so-called sui, not excluding women with the right of representation (succ. in caput praedefuncti parentis). In the second class there was a second, most extensive circle of the house, i.e. agnates, or all those who together would be under one government if a common parent were alive. Here, only the closest degrees participated in the inheritance, and the right of representation was not allowed, so, for example, with brothers and sisters, nephews could not inherit. The third class was made up of gentiles, all members of a clan union related by common descent from a known or unknown ancestor. During the centuries preceding Justinian's reformation, the old civil family disintegrated and agnacy lost its political and legal significance; his place was taken by his blood family. In it, according to the natural order, the one who is closer to the deceased by blood is closer to the inheritance; but since in order to determine the closeness of kinship, one invariable mechanical measure was adopted in Roman law - the number of births or degrees, it was necessary, in order to proportionally divide inheritance rights, to multiply the ranks of relatives who, one after another, are called upon to inherit. This is how four hereditary categories were formed. In the first one there are ancient sui, i.e. children of the deceased, children of his children and further descendants, without distinction of degrees, as long as the right of representation takes place. In the second class, ascendants, full brothers and sisters and their children - nephews and nieces are united by common law, but further their right of representation is not allowed. In the third class - half- and half-brothers and sisters, also with the right of representation only for children of deceased brothers and sisters. In the fourth class, all other collateral relatives who are closer in degree, without distinguishing between full and half-relatives, and without the right of representation. § 33. General rule regarding the transfer of inheritance to children. – Distinction between separated and non-separated. – Right of representation. - Parental rights. – The right of collateral relatives. – The Roman system of determining rights by class and degree. – German system of determining rights by lines and tribes So, in Rome itself, after the destruction of the legal family in the later era of Roman history, and especially in modern European history, where the family from the very beginning appears as a natural family, an organic union, inheritance law is determined by the closeness of consanguinity. As long as the tribal, political character of the family still holds, as long as the family still appears to be the predominant unit of the social union and retains integrity within itself, the right of inheritance, together with power, passes to the eldest in the family, who is considered its representative, the holder of family rights and obligations, so that after the deceased, his brother, and not his son, takes first place. But families are fragmented and isolated more and more, with an increasing tendency towards divisions, and here a new principle comes forward, according to which inheritance law follows the same path in which related blood is transmitted, i.e. not to the side and not up, but down, towards the children of the deceased. The following features should be noted. The right of sons to inherit sometimes depends on the circumstances, whether at the moment of death there is a real, cumulative connection in property between the father and children, or whether this connection has already ceased. Hence the difference in rights between children who, during the life of their father, separated from cohabitation with him, received an inheritance from him and founded their own household, and those children who, at the time of the father’s death, were still part of the common household, cohabited in the same house, not separated (in relation to the daughter, allocation was assumed during the life of the father, on the occasion of marriage). At first, the custom tended to ensure that unseparated children completely excluded children already separated from the inheritance, but then the severity of this principle was softened to the equalization of shares between separated and non-separated. The father is succeeded by the son. Everywhere at the beginning this rule was understood in such strictness that a living son completely excluded the sons of another son who had already died, so that when at the moment of death the patrimonial owner left behind one son and grandchildren from another son who had previously died, the latter had no right to inheritance under their uncle. For a long time, the new European law did not recognize the right of representation, long known in Roman law, by virtue of which the closest descendants of the person who would be the closest heir if he were alive at the moment of opening the inheritance take his place. The right of representation, long recognized in Rome, was at first completely alien to the German consciousness and was considered in contradiction with the generally accepted opinion that whoever is closer to the parent is closer to the inheritance (näher am Gut, näher am Blut); therefore, even grandchildren, the children of a deceased son, were not allowed to participate in the grandfather’s inheritance when he had a living son as an heir. Justice, however, was on the side of the grandchildren, and their right was recognized in Germany for the first time in the 10th century, over a dispute resolved by the famous judicial duel in the history of law - however, only for filial children, and not for daughters, who received the right of representation no earlier than the 15th century. The right of representation is still limited in Western legislation for lateral lines, sometimes at all, sometimes for lines and degrees that are more distant. Only Austrian law allows it unconditionally. But if there are no children or descendants left after the deceased, if therefore the inheritance cannot go down after the blood? In this case, one cannot go except upward, to the parents of the deceased, because, bypassing the parents, one cannot reach any of the lateral relatives. On this basis, Western legislation does not bypass parents at all. Parents, in the absence of descendants, receive either the entire inheritance (Prussian law), or share it with the brothers and sisters of the deceased (French, Italian, Austrian), or even with further collateral relatives (French). The extent of their participation in the division is also not the same, depending on whether both survived or only one, and the division is either generational (Austrian) or universal (Italian). Further ascending relatives are granted participation in the inheritance - either instead of parents, in proportion to their share (Italian), or in the future only in rank, with further collateral relatives (French). So, after the parents of the deceased, or together with them, their closest descendants are called to inherit, i.e. brothers and sisters of the deceased, and a distinction is made between full and half-blooded ones, i.e. half-uterine and half-blooded. Prussian law places the latter in the fourth class, with the distant ascendants. French law gives half-breeds participation together with full-bloods only in a smaller share, in proportion to half the communication of the clan. After the siblings come the descendants of further ascendants, i.e. further collateral relatives. Mentioned above were of two different systems for calculating proximity and recognition of inheritance. One system originates from Roman law, the other is of Germanic origin. Both the Germanic and Roman system are related to Germanic and Roman family law and to the Germanic and Roman system of calculating degrees of kinship. Roman law, without paying attention to the direction of the blood - whether it goes down or up - regarding ascending and descending and lateral relatives, counts only the number of births between two given persons: the deceased and his relative, the presumptive heir. Here, each of the persons called to the inheritance is called only on the basis of his individual, personal right, and because he belongs to a certain degree, no matter what line the degree is in, so that relatives in the ascending and lateral line divide the inheritance among themselves without exception. This division is not a consequence of the concept of the common property of family members, but is a consequence of competition between persons who have the same right. Regarding inheritance, relatives are divided in Roman law into four orders or classes, and in each class the indicated degrees are called upon to inherit, even if they belong to different lines. After the death of E, for example, in the fourth grade, A and B and D are called to inherit at the same time, despite the fact that they do not all belong to the same lines: A is E’s great-uncle in the line of Z’s great-grandfather; B – cousin of E in the line of Z – grandfather; D is the great-nephew in the line of I – the father. In the second grade: after I, father Z, brother B and nephew B, the son of the deceased brother, are called to inherit at the same time, without excluding each other. On the contrary, in the German system the calculation of degrees of kinship and the call to inheritance are carried out completely differently. The basis of German notation is the concept of the knee (parentela) 51 . Parentela is a collection of relatives in relation to the person from whom they share common descent. In a broad sense, this is a whole genus, but if we take, for example, two individuals and begin to look for their relationship to the nearest common ancestor, then we will find that the knees are uneven, the connection is more or less distant. Thus, in relation to my brother and in relation to my uncle, I am not of the same tribe: we have a common father with my brother, and a common grandfather with my uncle. The family of my father and the family of my uncle, with all those descending from them, are two tribes that at the highest level are united with each other, united in the family or tribe of my uncle. Thus, in the view of modern peoples, kinship, the connection between members of a clan, is organically composed of different families or tribes, and according to this order the closeness of kinship is determined, while the Romans did not pay attention to this mutual relationship of the families that make up the clan, but considered them simply births. So, when it was necessary to determine the closeness of kinship on the occasion of an inheritance, in the Roman reckoning they took the relationship between the deceased patrimonial owner and the heir and determined it by the number of births, and according to the newest German view, they took the presumptive heir, found out what his closest ancestor was with the deceased patrimonial ancestor, and then determined by the count of births the relationship of this heir to this common ancestor. Let's assume that we need to find the degree of relationship between B, C and D in relation to A. B is his uncle, C is his nephew, D is his great-grandson. According to the Roman reckoning, all three of them are in relation to him in the third degree, therefore, in a completely identical, equal relation to him. It is clear why such a number system now seems formal and unnatural to us: precisely because it does not take into account the mutual relationship of the knees. According to the German method of calculation, all these relatives cannot be placed on the same line. The knee needs to be taken into account. It is obvious that the connection between A and D, B and C is not the same at all. D with A is in one knee, in the nearest to him, in his own, although in the third degree. Nephew B is with A in the same generation, paternal, and to determine the degree, we count the number of births between B and the general head of the family K, and the second one will come out. The degree is closer, but the knee is obviously further. Further: B – uncle is with A in the same grandfather’s tribe; the degree of relationship will be even less - the first, and the knee is even further. It is obvious, therefore, that great-grandson D is closest and excludes everyone else from the inheritance. So, this is how the new, smarter principle of inheritance is applied. Whoever is closer by blood is closer to the estate. The main rule here is that the closest generation, the closest line of kinship excludes further ones. If there are relatives in the paternal line, then there is no point in going higher and looking for more heirs in the grandfather’s line. The right of collateral relatives to inherit belongs to them to the extent that they descend from the closest parent to the deceased relative. Another rule: within a line, whoever is closer to the common parent excludes further ones. So in the above drawing, B’s own nephew excludes his son L, and if O’s brother were alive, then neither B nor L would have the right. Third rule: relatives consisting of equal degrees of equal lines have the same right and share the inheritance among themselves. It is impossible not to give this method, as a more reasonable one, preference over the Roman one. This, as we will see later, is our system for determining kinship rights to inheritance. This is a pure lineal folge system of inheritance. This system, however, was not retained in all its purity in the latest legislation. In Germany, already in the 12th century, the Roman system of division into classes prevailed; however, in many places the line system has survived to this day. Of the European legislations, its Austrian legislation is the strictest and most consistent. Almost everywhere in other legislation it is mixed with the principles of the Roman system, and the vocation to inheritance is determined by degrees (Gradualfolge). In this system, the right of a certain person to inheritance is a purely personal right, by virtue of degree, and not line, and equal degrees, and not equal lines, divide the inheritance among themselves without exception. In this system, one and the same person can inherit several inherited shares if he is in a double relationship with the deceased, since both of them give him a special right (for example, there can be a double relationship through a grandfather or great-grandfather - the heir has something in common with the deceased, both through father and mother; collateral relatives through full brothers and sisters adjoin two clans, to the same extent as relatives through half-uterine adjoin the same genus in common with the deceased). In a system of lines, however, this difference cannot have such a meaning. The Prussian and French systems maintain divisions into classes (in Prussian 9, in French 3), of which each, being called one after another to inheritance, contains relatives of different degrees and even lines. So, for example, according to the French system, the following are considered: in the 1st class, descendants of all degrees, in the 2nd class, parents along with the brothers and sisters of the deceased and their descendants, in the 3rd class, ascendants and other lateral relatives closest to the parents. But the division between them is not equal, sometimes by head, sometimes by shares. § 34. Mixed systems in the latest legislation. – The difference in the order of division and in the assumption of the right of representation stems from the difference between these systems. – Limitation of inheritance rights to the limits of kinship. – Restriction of women. – Division of inheritance between families. – Returning what was given by parents. – Inheritance of spouses and illegitimate children and parents. – Law of inheritance in England The difference in the basis for dividing the estate between many heirs depends on the difference in the systems of inheritance order. Where the main basis of inheritance law is the proximity and unity of the line, the subject of inheritance law is essentially recognized as a whole family circle of persons adjacent in a certain line to the deceased patrimonial owner, and in this circle the inheritance looks for personal successors among the members, depending on the place and position they occupy in this circle. The inheritance, or a certain share of it, goes to a certain circle, to one tribe, in which members share it among themselves according to mutual relations. So, first of all, there is a circle, or circles go - a descending line after the deceased; behind them come the circles adjacent to the ascending relatives of the deceased, i.e. side lines, etc. In each circle, the closest successors are recognized as the closest degrees; if there is no living person in these degrees, then the offspring enters into his degree, in the person of the degree closest to him, and takes his share by right of representation. If there are several equal representatives of the same degree, then they divide its entire share among themselves without exception. The system of inheritance by degrees is established on different principles. Here the inheritance does not go to a line or tribe, but to a well-known person who, by virtue of his degree and his personal right of kinship, is the legal successor of the inheritance, and a further degree is certainly inferior to the nearest degree, inferior not because (as in the first system) that a living person is higher and closer in degree in the family circle, but because, in fact, it is a further degree; if several well-known degrees in one class are collectively called for inheritance, then the inheritance is divided equally among them, regardless of the fact that all these degrees, numerically different, belonging to different circles, are essentially incommensurable with each other. The equal division between them depends (not as in the first system) not on the fact that they are equal and comparable in blood origin, but on the fact that they flock together by law in the same class and share the same amount due to them together. In this system all the parts of the heirs called together are equal, whereas in the first system the equality of shares is only an accidental phenomenon. In inheritance along lines, it is possible for the heir to even accumulate several shares of the inheritance in his own person if he is in a double relationship with the deceased patrimonial owner, along two lines (for example, through a paternal grandfather and a maternal grandfather, in a full-blooded relationship compared to a half-blooded one), but in the latter system such aggregation of shares is impossible. From this difference in the basic principles of inheritance comes the difference in the right of representation itself. In the first system, the right of representation is a general principle and a necessary consequence of succession in circles and lines. Here the rule: “their descendants enter into the rank of the deceased” is undoubted and uncomplicated when applied to a certain circle where the descendants of previously deceased relatives are still alive. On the contrary, in another system the right of representation is not a general right, but a privilege granted only to certain degrees. Thus, for example, in the French system, the right of representation applies only to the descendants of descendants and full brothers and sisters, and does not apply to the descendants of other collateral relatives (Code C. 739–744). The lineal inheritance system is based on the unity of the family circles to which the deceased belonged. But this unity, beyond the paternal line, is broken. In the next generation we already see four separate circles: paternal and maternal grandfather and grandmother. Let's rise even higher, to the great-grandfather: there will already be 8 circles, even further - 16, etc. - circles, which the higher, the more alien they become among themselves. But, with a system of inheritance along lines, in each of these circles there may be heirs in equal degrees who have absolutely no connection with the deceased, and the inheritance between them will be fragmented ad infinitum. These inconveniences are, however, moderated by the following rules, which partly entered into legislation historically, partly established from political views. 1. A provision of the legal limit of relationship to which the right of inheritance may extend. Almost all of the latest legislation has introduced similar restrictions: for example, Austrian - up to the sixth line or sixth generation; French – up to the 12th degree of kinship; Italian – up to 10th; Prussian - allows inheritance law in all degrees and lines without limit. 2. Exception from the right to inheritance of daughters and women. Roman law was unaware of this difference in the rights to inheritance of both sexes. It appeared for the first time among the Germanic peoples and is closely connected with the structure of the marriage union and with the nature of property, especially land. It is connected with the system of official and feudal duties that fell on the noble and peasant classes, and therefore developed primarily in these classes. These responsibilities lay with the man; he was also obliged to serve, not the woman. The woman had to be content with what was given to her as a dowry, and the sons were considered real heirs: only when there were no sons could the woman take part in the inheritance. However, regardless of historical, political reasons and local national views, a woman, by her very family and social status, could not have the same relationship with a man to inheritance. The son must become the head of the family; a woman, according to the German view, can only be a member of it, she does not found her own family, but joins someone else’s: she leaves her family by birth and goes to another by marriage, therefore, it was incompatible with the concept of the integrity of ancestral or family property to grant her the same participation in the inheritance as a man. The concepts of church and Roman law about the marriage union, the Roman concepts of property, the development of the middle urban class of people, in which the main importance belongs to movable capital rather than land property, the strengthening of the philosophical ideas of the 18th century and the widespread equalization of persons and classes, the weakening of the generic meaning of real estate: these are the figures under whose influence everywhere the initially strict concept of the advantage of men over women in inheritance rights gradually changed, and the newest Legislation equalizes both sexes in this regard. At present, this equation has occurred or is occurring almost everywhere. 3. In the Roman concept of inheritance, no attention was paid to the composition of the property remaining after the deceased, and to its origin: all property was a solid mass that passed to the closest relative, whom the law called for inheritance. This system, although notable for its simplicity, could lead to injustice in its application. Thus, entire property could be transferred at once from one family to another; but Roman law paid little attention to the rights of blood and family. So, for example, when NN, who inherited after his father, died and left lateral relatives on the paternal side and collateral relatives on the maternal side, therefore, someone else’s family, then the latter, if they were closer in degree, became heirs of the entire mass of property inherited by the deceased from his father (only with the inheritance of ascendants in both lines, the estate, according to Roman law, was divided into two halves). The law of new Europe deviated from Roman law in this regard, allowing in many cases, when dividing an inheritance, a difference between the property that was part of it, so that the property inherited from the father went to the father’s family, and the mother’s property to the mother’s family. This beginning of inheritance was especially important in French local law, where the ancestral (propres) was constantly distinguished from the acquired (acquêts), and in the ancestral inheritance the rule was paterna paternis, materna maternis. This was called fente, but fente was followed by further fragmentation - refente, so that, ascending from knee to knee, the property was divided again. The new French legislation, having destroyed the distinction between propres and acquêts, however, partially retained the rule of fragmentation, limiting it. If the deceased patrimonial owner has no descendants left, French law establishes that the inheritance should be divided into two halves, one of which rests on his paternal family, the other on his maternal family, even if in both clans there were relatives of unequal closeness in degree, so that the next in one clan can receive more than the closest in the other. This fragmentation certainly occurs if there is at least one relative of the deceased in each of the clans. According to this rule, full brothers, participating in a division with half-bloods, take from both halves, while the latter take only from their own family. This rule, which is a feature of the French code, arose from the prevailing thought during its drafting that it was necessary in every possible way to favor the fragmentation of property and to counteract its accumulation in one hand. Likewise, according to French law, the part following ascending relatives is split into two halves, of which one goes to the mother’s line, the other to the father’s line. 4. Some legislation (such as the French law) in inheritance after childless people separates from the inheritance everything that came from the parents (or ascendants) during their lifetime to the children through a gift, and returns it to those from whom it came (Heimfallsrecht); others (Hamburg, Lubeck, Prussia, Saxony) in inheritance generally give preference to parents over the brothers of the deceased (Schosfallsrecht). In French law, parents are called upon to inherit along with the brothers and sisters of the deceased, but receive 1/4 of the share if only one is alive, half if both are alive. 5. Finally, spouses are still allowed to participate in the inheritance after the deceased. The degree of their participation depends on whether they are allowed in the absence of other heirs or with other heirs, especially children, and also on whether there was communication in the marriage or there was a division of property between the spouses. The right of the survivor extends either to a certain number of shares of the inheritance, or to lifelong ownership of the property. Inheritance of spouses with separation of property. In Roman law, the inheritance right of spouses was twofold: in the absence of other legal heirs and in the presence of other heirs. In the first case, the spouse had the right to ask for the transfer of the entire inheritance into possession (bonorum possessio ex edicto, unde vir et uxor). In the latter case, the widow received the right to a share of the inheritance, greater or less, depending on what the other heirs were, but this right was granted only to an indigent widow (indotata, inops mulier). As a general rule, she was assigned a fourth part of the inheritance, which would have to be divided not with the children of the deceased, and, moreover, as property. If the division involved children, then her part could not be more than a child’s (hence, it could be less than a quarter), and moreover, if she happened to inherit along with her children, she received her share not as property, but for lifelong use. From Roman law, this matrimonial law passed into German legislation, in part even with strengthening. Thus, Prussian law gives one of the spouses the right to the entire inheritance when there are no blood heirs closer to the 7th degree; and in sharing with other heirs, it provides the spouse with a certain share for ownership, and not for use: namely, the third share, when ascendants, brothers, sisters, nephews co-heir, and half, with co-heirs of further degrees (Ldr. II, 1. § 502–539). Austrian law comes closer to Roman law, and French law does not allow a spouse to inherit jointly with other heirs at all: a spouse can inherit only in a case where there are no legal heirs left after the deceased (Code C. 767). Italian law is most favorable for spouses. In case of legitimate children of the deceased, the spouse receives an equal share with them for use; with ascendants, brothers and sisters, he receives a full third of the inheritance, and with further relatives - two thirds, into property. Inheritance of spouses with joint property. Upon the death of one of the spouses, the relationship breaks up, and the living spouse, receiving his part in the division, must also rely on his inheritance right. Only Prussian law prescribes, first of all, dividing the common property into two parts, and in half the deceased gives the living spouse a share with the heirs of the deceased (except descendants). If both spouses have common children, the totality of property does not cease, but continues with the living spouse with children (communio bonorum prorogata), until division by mutual consent or until the occurrence of events due to which the division must be carried out (such as the spouse’s entry into a new marriage, his extravagance, etc.). Some of the German laws provide the spouse, when there are no descendants of the deceased, with common property for lifelong use. During division, first of all, those properties are separated from the mass that the spouses have the right to appropriate to themselves exclusively, as their immediate property, as their special property (prélèvement, Vorausnahme, Voraus); What kind of property this is, there are different regulations on that in different legislations. The integrity of this special property is ensured by the entirety of the property (particularities of providing for a widow, according to French law, see Code Civ. 1472–1495). Under certain conditions, participation in the inheritance is also allowed due to the connection of illegitimate birth. Other legislation, such as Austrian law, allows inheritance rights only between the mother (personally) and illegitimate children, without recognizing the hereditary connection with the father. Prussian law denies a father an inheritance after illegitimate children, while children after such a father have the right to no more than 1/6 of the inheritance. French law has adopted a rather complex system: illegitimate children do not receive anything (even from their mother's inheritance) if they have not been recognized. In the latter case, they receive the entire inheritance if there are no other heirs; if there are any, they receive either 1/3, or 1/2, or 3/4 against the share of legitimate children, depending on who they share with - close or more distant blood relatives of the deceased. Parents inherit only after their children have been recognized (Code N. 756–766). Italian law is incomparably more favorable for illegitimate children. He allows them to participate in the inheritance together with legitimate children, in half the share compared to the share of legitimate children, and calls them exclusively to inheritance, in the absence of ascendants, descendants and spouses (French law calls them to exclusive inheritance only after all relatives up to the 12th degree). The participation of the adopted person in the inheritance after the adoptive parent is recognized almost everywhere; but the reverse right of the adoptive parent, which existed in Roman law, is rejected: French law returns only to the adoptive parent the property that came from him to the adopted person upon the death of the latter (Code N. 351); Austrian law strengthens the right of the adopted person, giving him participation in the inheritance not only after the adoptive parent, but also after his spouse, who consented to the adoption. Comparative class system Descendants of all degrees, with generational division In England, the law of inheritance is established to this day on the ancient principles of feudal life; only in 1834 was it partly supplemented and partly clarified by allowing ascendant and half-blood relatives to inherit. The fundamental principles of the hereditary order in all lines are as follows: man equally excludes woman; where there are equally several men, only the eldest of them inherits 52; where women are called upon equally, they inherit jointly, and the right of representation is allowed in all lines. The inheritance goes first of all down to the descendants of the last entitled to the Land. If there are no offspring, the inheritance goes up to the nearest ascendant, and again in the same order - the male line excludes the female, and in the line the man excludes the woman. With ascending there is no place for the inheritance of his descendants, i.e. lateral relatives of the deceased; but the descendants of the nearest ascendant exclude the further ascendant and his descendants, i.e. the father's children (siblings) exclude the grandfather and his descendants; and if there are no siblings, the inheritance goes to the grandfather, bypassing his children, i.e. cousins ​​of the deceased, but the mother’s clan, as a general rule, does not inherit as long as there is an heir in the clan of the father, father’s father, etc. in the male line, unless it turns out that the hereditary estate comes from the female line - then it returns to it. Half-blood relatives are inferior to full-blood relatives and their offspring, unless the inheritance went to the female line, and the relationship was connected by female blood (for example, when a childless person has no heirs through his father and has heirs only through his mother, then half-blood relatives will inherit through her). See Gundermann. Engl. Privatrecht. Tubing. 1864. Solly. Grundsätze des engl. Rechts über Erbfolge. Berl. 1853. This order of inheritance applies, however, only to the so-called real property in England - for an explanation of this term, see the first part of this work; For personal property, there is another hereditary law, the so-called Statute of Distributions 53. Property of this kind, upon the death of the owner, comes to the disposal of the administrator, who is approved, upon request, by the Court of Probate (see below about wills under English law). The right to administration is assigned to the closest relatives by blood in a sequential order determined by law. (The husband is the indispensable administrator after the wife.) The administrator is obliged first of all to clear the remaining property of debts, extraditions, etc.; then, no earlier than a year after the death of the patrimonial owner, distribute the property according to the statute, which defines in great detail the order of inheritance of certain close relatives in the personal property of the deceased. In this order, children inherit equally. It is remarkable that the husband after the wife receives all her personal property, and the wife after the husband receives a third for the children and half for other relatives. The father excludes the brothers, but the mother shares with the brothers. Roman inheritance law served as a ready-made model for all legislation, to which everyone sooner or later had to turn for definitions when they were needed; On the contrary, among all peoples in the early days of civil life, in the poverty of capital and the simplicity of economic life, their hereditary institution turns out to be simple and meager in definitions. In Rome, at the very beginning of its civil history, we already encounter inheritance as a remarkably developed institution. Already at this time in Rome, along with inheritance by law, inheritance by will and the determination of legal shares to provide for the closest heirs; inheritance already has the property of universality, i.e. representation of rights and obligations over all property; inheritance is different from renunciation or legacy (both of which in the new Europe had already entered consciousness by the end of the medieval era); there is already a right of representation, and the opening of an inheritance differs from an acquisition. Later, through praetor's law and the teachings of jurists, the concept of inheritance law expanded, with the change in family rights. The form of bonorum possessio is established; Along with the agnates, cognates are also called to inherit. With the multiplication of values, it is necessary to equalize them as part of the inheritance; To satisfy this need, the institution of collatio arises, to equalize the values ​​acquired by the heirs from the total mass of property both before and after the death of the deceased patrimonial owner. From the concept of universality the institution hereditas jacens is formed. – From the established distinction between the opening of inheritance law (delatio) and acquisition (acquisitio), the right of transmission or transfer of opened rights develops (already in a later era). In connection with the establishment of deadlines for accepting an inheritance, an institution of hereditary substitution is formed. To ensure justice in the responsibility of the heirs, in the satisfaction of creditors, certain benefits arise for both (b. b. abstinendi, separationis, inventarii). In a later era, rights were formed, and with the help of lawyers, doctrines were developed about increment in inheritance, about prelegacy, about different types of claims by inheritance, about Trebellian and Falcidian quarters. § 35. Reasons for opening an inheritance. – Property constituting an inheritance. – Capable, incapable and unworthy of inheritance. – Call to inheritance and acquisition of inheritance. – Inheritance agreements and preliminary refusal of inheritance. – Direct and indirect heir. – Idle and escheated inheritance To implement the idea of inheritance, three conditions are necessary. 1. Death of the former patrimonial owner, reliably known or suspected (in case of unknown absence). According to the special principles of some legislation, the same effect as death can have: entry into monasticism with a vow of poverty and political death or deprivation of all civil rights (French law). An inheritance in his estate cannot be opened before the death of a person. Only some German legislations (for example, Prussian) allow the separation of children of a first marriage upon the entry of one of the parents into a second marriage (Abschichtung see § 21), and the separation concerns the property of the parent who is still alive, so that this action precedes the exercise of inheritance rights. It is also allowed (see below) for the division of property between children during the lifetime of the parent. 2. There must be property that constitutes the subject of inheritance: all property that belonged to the deceased. In any case, some purely personal rights are excluded from this property, which are mentioned above and which, by their nature, cannot be transferred. Some legislation excludes them from the general mass - estates received from parents and ascendants, or estates of a special nature, such as fiefs, fideicommisses, wives, estates of various names (Gerade, Niftel, Eingebrachtes, etc.), receive a special purpose. On the other hand, the composition of the hereditary mass can be increased by such property that did not belong to the deceased at the moment of his death: this happens when the law decrees that among the co-heirs, as a set-off of shares, everything that each of them received as a gift from the deceased patrimonial owner during his lifetime (collatio). 3. There must be a legal heir capable of inheriting. In general, everyone who has full civil rights is assumed to be capable. However, some persons in the past were, and in part are still considered, incapable of inheritance, either for general reasons of their condition, or for special relations to the deceased. Thus, in the old days, illegitimate children, heretics, and foreigners were recognized as incapable of inheriting. The prohibition of the right of inheritance to foreigners subsequently, softened, turned in many countries into the right of the treasury to deduct a more or less significant share of the inheritance reaching the foreigner (gabella hereditaria, Abschossrecht). This deduction has now been abolished almost everywhere, and where it exists, it is allowed only in the form of retribution to other states for such a restriction (a similar principle of retribution is expressed in the French law as a general rule. Code N. 726, 912). In the history of legislation, another similar right is known, by virtue of which the treasury appropriated all the property upon the death of a foreigner within the state (jus albinagii, de alibi natis, droit d'aubaine). The right of legal entities, corporations, institutions, etc. to receive inheritance under a will is subject to various restrictions everywhere. In addition, many laws establish special restrictions on the inheritance rights of certain persons for personal unworthiness; in the past, the number of such restrictions was significant, because the treasury benefited from them, appropriating the inheritance for itself instead of an unworthy heir. Current restrictions (for example, in Prussian, in French law Ldr. I. 12. § 85. 599–610. Code N. 727–730) do not apply to the benefit of the treasury and are derived from the personal relations of the heir to the deceased patrimonial owner, for example. from insults and insults inflicted on him during his life, attempts on his life, etc. Wed. § 54. The heir is called to inherit, or the inheritance is opened to him, due to a known legal reason giving him such a right. This event, i.e. the calling to an inheritance at the opening of it (delatio hereditatis), according to Roman law, is strictly different from the acquisition and acceptance of an inheritance (acquisitio, aditio hereditatis). To whom the inheritance is revealed, he must also acquire it by a decisive expression or action of the will; at the moment of acquisition, the person acquiring must have the same legal ability to inherit as was at the moment of discovery, and until the acquisition has been completed, the presumptive heir cannot (with few exceptions) transfer the right to inheritance to his successors. It is impossible to force a purchase. The acquisition of an inheritance was connected, according to Roman law, with the opening of it only in the person of the so-called existing or necessary heirs (sui heredes, necessarii), because with the death of the head of the family they directly and necessarily entered into his personality, according to the Roman principle of the unity of the family personality, by themselves, without transfer, therefore, such heirs could not evade acceptance. New legislation does not maintain such a strict distinction between the opening and acceptance of an inheritance and does not prevent anyone from refusing the inheritance of one who has opened it. Roman law knew only two grounds for opening an inheritance: a will or a legal order. In German law, a third basis appeared - agreement (Erbvertrag), which Roman law did not allow in inheritance at all: it declared invalid any agreements that would limit the freedom of the testator, and even agreements on the refusal of an inheritance that was about to open. According to the principles of German law, only agreements between two persons on inheritance after a third person who is alive are considered invalid - without his participation. Roman law allowed, however, a gift on the occasion of death, in the form of a special agreement between the living, but such an agreement was not considered binding on the donor (cf. Part 1 of this book, p. 381). On the contrary, German law allows for an inheritance contract, not only in a negative form (pactum renunciativum, Erbverzicht), but also in a positive form (p. acquisitivum). The rulings on this subject in French and Austrian law are closest to Roman law. The first allows inheritance contracts only on the occasion of marriage, between spouses, even with the participation of third parties (Code N. 1082 et seq.); the latter, in addition, allows in some cases to give irrevocable force to a donation in case of death (Ges. b. 956, 602). Other German legislation further expands the scope of the inheritance agreement. Agreements on renunciation of inheritance are generally permitted (as was the case in Roman law) with the consent of the person whose inheritance is intended; but Austrian law allows such contracts without any restrictions, and French (Code N. 791) prohibits them altogether. The assignment of an undisclosed right to an inheritance is prohibited everywhere, but foreign legislation generally allows agreements on the alienation of an inheritance upon its opening; however, not everyone defines the relationship of a third-party acquirer to the inheritance in the same way. According to Roman law, the heir in this case, in relation to third parties, is considered to be the person directly called to inherit, and not the acquirer of the inheritance under an agreement with the direct heir, but in relations between the parties participating in this agreement, the acquirer accepts the heirship title. The French law is expressed in the same sense (Code 780, 1696); but according to Prussian law (Ldr. I. 11. § 445), the acquirer is also considered an heir in relation to third parties. In inheritance, a direct and immediate succession is generally assumed, from the deceased patrimonial owner to the inheritance. On the contrary, an indirect heir will be the one who received the next property through a direct heir or a third party. According to Roman concepts, every successor of a general right (universal heir) is a direct successor, and the successor of a special property or renunciation is an indirect successor. But according to the latest concepts, the participation of a third party as an executor or executor (exécuteur testamentaire, trustee) is allowed, through which the estate is transferred to the heir. French law recognizes as a direct heir (héritier) only those who, by law, by virtue of consanguinity, are called to inherit, while recognizing all others as indirect heirs, as well as all heirs under a will, even if all property was bequeathed (légataire universel). An inheritance that has been opened, but not yet acquired, receives in Roman law the special property of an idle inheritance (literally - recumbent, hereditas jacens); if there are no heirs, it becomes escheatable (erbloses Gut, bona vacantia) property, which is either used to reimburse the debts of the deceased, forming a bankruptcy estate, or, as ownerless, is appropriated by the treasury, by the right of occupation. However, for the sake of fairness, some properties of hereditary acquisition are connected with this transfer of the estate to the treasury; The treasury, entering into the rights of the deceased according to its claims, which are connected with the property, is responsible for him in obligations and is even obliged to fulfill his will regarding refusals in the event of death. Roman law already allowed some institutions and corporations to enter, instead of the treasury, into the escheat property of their members. In medieval times, the appropriation of escheated property was considered regalia, which was transferred, in the form of fief, to certain institutions and patrimonial authorities. In the latest legislation we still find, although less frequently, similar concessions of state law to institutions, especially charitable ones; only the French law (Code N. 768) is silent about such concessions. In essence, there can be no question of inheritance after a legal entity, since such a person can have neither blood heirs nor testamentary power. Questions that often arise about where the property of a defunct institution (for example, a parish church) should be transferred are resolved differently and do not belong to the scope of inheritance law. § 36. Direct entry of direct heirs. – Transmission. – Confirmation of inheritance. – Acceptance of inheritance and renunciation. – Consequence of acceptance. – Acceptance of inventory and division of debts. – Division of inheritance. – Return accounting. – Separation of rights and responsibilities. - Redistribution. – Inheritance among Muslims Roman law in the acquisition of inheritance distinguishes existing or direct heirs (sui heredes) from all others, considered indirect (extranei): the former inherit by virtue of their right (ipso jure), regardless of their will; the latter are also required to express their will to accept the inheritance. Both of them acquire an inheritance, regardless of entering into actual possession of it: possession is not required at all to acquire an inheritance. The direct heir cannot directly renounce the inheritance according to strict law: only the praetor's law gives him the opportunity to indirectly evade the inheritance, not by revoking it, but by silently avoiding actually entering into it (beneficium abstinendi). Indirect heirs are obliged to express their will when, having learned about the opened inheritance, they wish to accept it or renounce it. To accept an inheritance, however, no public or judicial announcement is required: any active intervention in inheritance matters regarding property (pro herede gestio) serves as a sign of acceptance. If the heir died before acceptance, strict law recognizes him as having renounced the inheritance and does not allow the inheritance not accepted by him to be transferred to his heirs (hereditas nondum adita non transmittitur ad heredes heredis); but in later law numerous exceptions (transmissiones) were allowed from this rule. From time immemorial, German law adopted the concept of transfer of inheritance, which disagreed with the Roman one. It was assumed that the inheritance passes to the heir by itself, at the moment of the death of the patrimonial owner (der Todte erbt den Lebendigen. Le mort saisit le vif), therefore, the transfer does not require, as in Roman law, a separate act of acceptance of the inheritance, the expression of the decisive will of the heir. This idea is expressed in almost all the latest legislation (for example, Austrian Ges. b. 537. Code Civ. 724) 54. In practice, this means that the rights and obligations of the heir to the inheritance, whenever he receives it, are built up to the minute the inheritance is opened. However, this general rule cannot have unconditional meaning, like the Roman rule on the necessary succession of direct heirs (sui, necessarii). Nowadays no one can be forced to accept the inheritance with all its legal qualities. Therefore, regardless of the above general rule, it is very important to determine the moment of acquisition of an inheritance as an undoubted sign, because the succession of rights and responsibilities depends on the acquisition, in which any unknown and uncertainty especially harms the interests of third parties. These are the reasons why all legislation pays special attention to this subject and defines the signs of an irrevocably completed acquisition. Of the newest legislation, Austrian and then Prussian come closest to Roman law, requiring the heir to express a positive will to accept. According to Austrian law, the heir must be confirmed in the inheritance by the court, for which anyone who wishes is obliged to present to the court the basis of his inheritance right and declare positively that he accepts the inheritance (Ges. b. 799–808). This is also required by Prussian law. Other legislation is not so strict in this regard; They are led by French law, in which the acquisition of an inheritance coincides with its opening, and no special approval of the inheritance is required. French law distinguishes in this matter between direct and indirect heirs: the first or so-called legal (légitimes) enter by force of law, directly (sont saisis de plein droit), into all the property, rights and claims of the deceased; and for indirect heirs, for illegitimate children, for spouses and for the state, judicial approval of the inheritance is required (Code C. 724). Thus, the French law regarding inheritance establishes the beginning of possession independently of the will, intention and action, in complete contrast to the Roman principle, which did not allow the acquisition of possession without the assistance and execution of the will. This rule does not apply, however, to inheritance under a will, except in certain cases. However, such direct entry into inheritance is based on a legal assumption, and therefore is not irrevocable. Nul n'est héritier qui ne veut, therefore, this assumption is destroyed in the person of the heir who refuses to accept the inheritance. But the acceptance of an inheritance can be accomplished silently, by the deed itself, by arbitrary entry (774 et seq.), and the renunciation of the inheritance is not assumed, but must be expressed in a judicial act (784 art.); whoever accepted the inheritance is assumed to have accepted it from the moment of its opening, and whoever renounces it is assumed to have never been an heir (777, 785). The latest legislation also deviates from Roman law in that it unlimitedly allows transmission, which in Roman law was allowed only as an exception, i.e. recognize that the right to the opened inheritance passes by itself to the heirs of the heir, even if the latter has not given a response to acceptance or renunciation (Austrian 809, Prussian 1, 9, § 397, French 781). An inheritance claim (hereditatis petitio) has some features that differ from a general patrimonial claim, and these features are different in Roman law. The plaintiff is the heir, no matter whether he is alone or in a share with others, or taking the place of the heir (such as a universal fideicommissar, treasury or acquirer of inheritance rights), and the defendant is anyone who is in possession of the hereditary estate. The subject of the claim is the entire hereditary totality (universitas juris). It follows from this that everything acquired by the heir through the inheritance, everything incremented and replaced in its composition, is included in the subject of the dispute. The liability of a bona fide and dishonest owner to the heir is somewhat increased in comparison with a general patrimonial claim, and, conversely, the owner’s right to reimbursement of costs is also elevated. Of the latest legislation, one Saxon one distinguishes in detail these features of an inheritance claim (Sächs. Ges. b. 2291); The Prussian and French codes, including inheritance among the general methods of acquiring property, do not distinguish the particularities of an inheritance claim, although in practice these features are themselves discovered and recognized by the courts. Acceptance of an inheritance is equated with mandatory legal actions, and therefore only fully capable persons are authorized to revoke the acceptance. As a result, according to French law, a woman cannot accept an inheritance herself, without the consent of her husband, or, in the absence of her husband, the judicial authority. Acceptance of an inheritance is of particular importance because it is associated with the acceptance of responsibility, and that this responsibility can be accepted conditionally, to the extent of the quantity and value of the property accepted. This is the so-called preferential acceptance of inheritance according to the inventory (beneficium inventarii, bénéfice d'inventaire). The consequences of such adoption will be discussed below. Just as the acceptance of an inheritance or the renunciation are associated with consequences that are important for third parties, the right to both cannot be indefinite. While the inheritance has not yet been opened, there can be no talk of the heir’s revocation regarding acceptance or renunciation (even a revocation given by an heir who does not know about the opening of the inheritance is considered invalid); and from the time the inheritance is opened, deadlines are set for accepting it or for renouncing it. This period is usually accepted as a general limitation period, unless there were other persons in mind who declared their interests, depending on the rights of the heir (these could be other heirs, claimants under the will, creditors, debtors of the deceased). If such persons make demands on the presumptive heir, it would be unfair to leave him the right of silence for an indefinite or long period of time, and therefore short periods are established in this case. Roman law gives the heir a period of consideration in this case (spatium deliberandi, 9–12 months); According to the latest legislation, deadlines are assigned for this either certain or at the discretion of the court (Austrian). After the expiration of the period, if there has been no revocation, the interested party is left to interpret the heir’s silence in his favor. However, even in this case, when the heir has the legal right to remain silent until he has yet begun to accept the inheritance, he has the right, as a presumptive heir, to proceed, with the permission of the judicial authority, to dispositions of the property aimed at protecting it from damage or loss (Pr. Ldr. I. 9. § 386. Code C. 796). Consequences of accepting an inheritance. Succession. Whoever accepts the inheritance enters into succession after the deceased in all his rights and obligations, and represents his person in property. In this respect, there is a unity of personality between the deceased and his heir. In order for this unity to be complete, it is necessary that the relations of the deceased in terms of property are not interrupted for a moment until the transfer to the person of the heir. As a result of this need, the entry into an inheritance, whenever it follows, is given retroactive force, which is elevated to the minute of the opening of the inheritance (in Roman law, in order to avoid a break in the relationship between the death of one and the entry of another, this interval was filled with the idea of ​​an idle inheritance (hereditas jacens), to which the qualities of a representative or legal personality were assigned). So, when entering into an inheritance, according to the law, no indefinite intermediate state is allowed at all, conditions that delay or delay the transition of the inheritance are not allowed. This idea is expressed in the well-known saying: semel heres semper heres. By virtue of this representation, the heir assumes the rights and obligations of the deceased; but if, in addition, the deceased patrimonial owner imposed compulsory duties on his heir in the event of his death and the transfer of the inheritance, this unity of the heir’s personality with the personality of the deceased cannot serve as the first basis or pretext for perverting or destroying at his own will what was determined by the will of the deceased. The heir is obliged to submit to duties, even in such a case when they are assigned to his own property, unless these duties exceed the material strength (value) of the inheritance received and if they do not violate or overburden the legal share of the heir. If this principle of the unity of the individual were always applied in all severity, the consequences would in many cases be extremely burdensome for those receiving the inheritance. Having once accepted an inheritance - in whatever quantity, one would have to be responsible for all the obligations associated with it - in whatever quantity. Justice requires allowing some accounting of income and expenses in the inheritance. As a result, the following institutions have been introduced to soften the strict principles of hereditary liability. 1. Acceptance of inheritance by inventory, or beneficium inventarii, introduced for the first time by Emperor Justinian in Rome. By virtue of this institution, the heir can evade the full representation of the personality of the deceased, from combining personal responsibility for his debts with responsibility for the debts of the deceased. The debts of the deceased remain, as they were before his death, exclusively on his estate. The heir is allowed to request an inventory of the opened inheritance and accept it according to this inventory: in this case, he is responsible to the hereditary creditors as a preferential heir, i.e. to the extent of the value of the inherited property; he is even allowed to settle his own claims on the deceased patrimonial owner, although according to the general procedure, such claims are repaid in the person of the heir. It would be unprofitable for third parties if the heir could postpone the demand for an inventory or extend the inventory itself for an indefinite period of time, and therefore a period is assigned to him (from the time he was notified of the discovery of the inheritance) to request an inventory, and a period during which the inventory must be completed. Whoever omitted to ask for an inventory, according to Justinian's law, is charged with the obligation to pay in full all the debts of the deceased and even satisfy all testamentary assignments, even if they exceed the very value of the inherited estate (this last rule is adopted in Austrian law § 801). French law places such an heir on the inventory in the position of responsible administrator of the hereditary estate (Code C. 803–810). 2. Separation of debts. When the heirs themselves, or some of them, have many debts, it may be very disadvantageous for the creditors of the hereditary estate to consolidate liability on behalf of the heirs; in this case, the hereditary creditors will have to enter into competition with the creditors of the heirs themselves and receive incomplete satisfaction from the mass of the combined estates. The law allows them in this case to ask within a certain period for the division of debts and for the satisfaction of hereditary debts exclusively from the hereditary estate, but at the same time they are removed from any claim to the estate of the heirs themselves (Code Civ. 878. Oest. Ges. b. 811); Prussian law grants the same right to personal creditors of heirs regarding debts lying on the estate. The inheritance in its entirety belongs to all heirs, when there are several of them, from the time of discovery, but not all of them enter into the inheritance at the same time. The acceptance of the inheritance may slow down, and heirs who were not previously in sight may appear again. In any case, justice requires that both of them - relative to the total mass of the inheritance - be equal in their quantitative rights to them, each to the extent of his share. So, until everyone is allocated their own share, all quantitative increases or decreases in the inheritance must constitute a common property. At the minute of division, a complete equation of shares must be completed. In order for some of the heirs not to be wronged over others, it is necessary to put into account everything that each one managed to receive before others from the property that belonged to the deceased patrimonial owner, not only after his death, when the inheritance had already opened, but also during his life, with his will and consent. The Roman law of return accounting (collatio, rapport) is based on this consideration. By virtue of this rule, descendants, entering into an inheritance, were obliged to count back into the inheritance mass everything that came to them as a gift from the deceased, unless, moreover, the deceased expressed a direct will not to include this in accounting for the inheritance. To get rid of this obligation, when it turned out to be unprofitable, it was necessary to refuse the inheritance. The Roman rule was included almost unchanged in Austrian law, in other legislations it was more or less expanded, and most of all in the French law, which obliges not only descendants, but also ascending and lateral relatives to be returned to the account, and extends the return not only to gifts, but also to testamentary appointments of the deceased patrimonial owner, unless the will specifically states that the appointment is made without return to accounting (à titre de préciput ou hors part. Code Civ. 843, 844, 849, 919). As a result of the division, each of the heirs, according to Roman rule, becomes the representative of the deceased - to the extent of his share. Before the division, each part of the inheritance belongs to each heir and to everyone in general, and with the division they have an exchange of parts, by virtue of which everyone acquires from each other and transfers everything to each other, so that by division each heir acquires his part. French law deliberately evaded this concept by decreeing (Article 883) that each heir is considered to have directly and exclusively accepted his material share from the deceased patrimonial owner. With the division of inheritance, is the responsibility for the debts of the deceased divided among the heirs? Roman law answers this question in the affirmative: all hereditary debts (except those that are essentially indivisible) are divided among all heirs in proportion to each person's share: everyone is responsible exclusively for their share. The same rule is stated in the French law (Article 873). Austrian and Prussian law follow a completely different principle: the heirs are responsible all together, for each other and each for everyone in inheritance debts; an exception is allowed by Austrian law (550, 820, 821) only for the heir according to the inventory, and Prussian law does not recognize this exception either. General ownership of the inheritance, without division, is possible by mutual consent of the heirs, but not obligatory for anyone; Everywhere, even the right of a testator to oblige his heirs not to share is more or less limited. The French law on this subject expressed itself most decisively: it does not allow unconditional agreements on the undivided ownership of an inheritance, allowing only for a 5-year period the validity of such an agreement or the last will of the deceased patrimonial owner on undivided property (815). Prussian law allows for the postponement of partition at the will of the patrimonial owner for a certain period of time; Saxon - for a period not exceeding 20 years. Some legislation also allows hereditary division, or, more correctly, the allocation of children or descendants during the life of the parent, at his discretion (divisio parentum inter liberos), or the distribution of estate according to a will between children and descendants. French law provides special rules for such division in 1075 et seq. articles. When the division is not carried out amicably, by agreement, it is carried out with the participation of the court or under its supervision, but not otherwise than at the request of one of the accomplices, or is required in any case when among the heirs there are minors under guardianship or absent. The claim for division (act. familiae herciscundae, communi dividundo) arises essentially not from inheritance law, but from hereditary communication of rights, i.e. from a special legal state in which all parties participate equally. Therefore, in an action of this kind, every plaintiff is at the same time a defendant, and the defendant is at the same time a plaintiff. In a claim for division, the indisputability of the inheritance right is already assumed, but if a dispute arises about this, then the action of the claim for division is suspended 55 . The division is usually associated with the following actions: valuation of real estate, transformation into value (liquidation) of property and things that are not subject to fragmentation in kind, drawing up lots as evenly as possible, approval and distribution of them among the heirs. French law prescribes that this distribution should be made by drawing lots. Partition proceedings in Prussian law (Nachlassregulirung, Auseinandersetzung - when the surviving spouse must be separated) are particularly complex. Here the court directly participates and acts in the proceedings; but, according to French law (Code 815–870), a case is only opened in court by filing a request, and the partition itself is carried out through notaries and experts. Redistribution, after the division has taken place, is not allowed, except in the case of proven fraud; but French law allows the destruction of the division for proven damage of the heir against other shares, more than a quarter of the value, at the request of one of the co-heirs, when he proves that he received too much a quarter less than the other partners. French law even extends its concern for the equalization of heirs too far. It is remarkable that for the same reason (i.e., due to the lack of 1/4 of the part against the others), he allows the destruction of the division (or distribution, for example, in a will) made by the deceased patrimonial owner himself, even if the one complaining of inequality received from the testator in excess his specified part (Code C. 887, 1079). For example, a son who has the right by law to 20,000 and received 22,000 in the will, can claim equal shares with his brother’s share only for the fact that the brother receives 38,000. Muslim inheritance. In Muslim law there is no concept that corresponds to our accepted concept of inheritance, as a succession with representation of the personality of the deceased. Inheritance is represented only as the acquisition of escheated property by persons closely related to the deceased owner. These persons are, first of all, related by blood and marital relations. Some of them, namely parents and spouses, are called upon to inherit without fail and, in any case, either alone, when there are no other relatives, or together with others, and in the first case they receive the entire inheritance, and in the latter a certain share of it, which either remains unchanged or decreases, depending on which relatives these persons must enter into competition with. In addition, there are some other relatives who have a similar right to receive a certain share; but the shares of the spouses and parents are calculated from the entire property, and the shares of others either from the whole property, or from what remains after the allocation of the spouses and parents. The remaining heirs share everything else among themselves, following the allotment of the first. All heirs are called upon to inherit in three categories, from which the next one is excluded by the next one. The first or closest rank consists of: parents, children, grandchildren and all descendants. In the second - grandfather, grandmother and all ascendants, brothers and sisters. In the third - uncles, aunts and lateral relatives on the father's and mother's side. In each category, all available persons are entitled jointly. A woman who has joint rights with a man receives half as much as he does. An important feature of Muslim law is that it allows the right of representation in an ascending line unlimitedly, up to a person having descendant descendants; on the contrary, in the descending line the right of representation, as we understand it, does not exist, and therefore, for example, the son of the deceased excludes his nephew, the son of another son. The spousal indicated part is 1/2 of the estate (to the husband, if there are no descendants), 1/4 part (to the husband with descendants, to the wife without descendants) and 1/8 part (to the wife if there are descendants). This share is divided equally among widows if there are several of them. The marital part stands out first of all and in any case. Parents with other first-class heirs each receive a sixth of the inheritance. In the second category are the children of the deceased in the absence of his parents. Adoption does not give inheritance rights. Illegitimate children recognized by the father are allowed to inherit; but after them only the mother inherits, not the father. Unbelievers, a murderer after a murdered person, a slave after a free one and vice versa, a spouse cursed by another spouse are considered incapable of inheriting. However, for a clear understanding of the hereditary order among Muslims, the above is not entirely sufficient, since the rules of the Sunnis differ significantly from the Shiite in many ways. So, for example, the above-mentioned exclusive succession in 3 categories among the Shiites is replaced among the Sunnis by a succession in 13 categories. The right of one mother, the right of a daughter with sons and their descendants, the right of those ascending from the mother’s side, half-brothers with half-blooded ones, etc. differ significantly in both laws. When there are no heirs by blood, the inheritance is granted according to a special right, called velo, to third parties, namely: firstly, to the former owner after the slave was freed, secondly, according to a hereditary friendly condition, if there was one, and thirdly, it goes in favor of the imam (for Shiites, and for Sunnis - to the public treasury). The division of inheritance among Muslims is associated with important difficulties and is characterized by the extreme complexity of calculations for summarizing and equalizing the different quantities of shares due to persons having different rights. Therefore, partition is considered the most difficult and skillful matter of Muslim legal casuistry. According to Islamic law, any personal obligation ends with the death of the debtor, i.e. does not transfer to any other person. This explains the above-mentioned lack of idea about the representation of the deceased by his heir and the corresponding need to clear the debts of the deceased from all the property that remained after him. All debts of the deceased are paid before the division of the inheritance, and what remains goes to the division. This liquidation, as well as the subsequent division, is entrusted to the judge, whose duty is first of all to pay the costs of treatment and burial and the debts of the deceased, then to execute his will, if any, and to divide the estate. The summoning of heirs and the limitation period for acquiring an inheritance are unknown in Muslim law. For the valuation of the inheritance and for the technical distribution of shares, special experts, known as Kasimov, can be elected by the court. Chapter two. The order of inheritance according to Russian law § 37. Historical sketch of Russian inheritance law. – The first beginnings of inheritance under treaties with the Greeks, according to Russian Pravda and legal codes. – The influence of the clan principle and the political struggle against the boyars on the decisions on inheritance. – Differences in inheritance between estates and fiefdoms. – Education of the widow’s and daughter’s part. – The right of female relatives in the presence of men. – Confusion about the right of representation. – Connection of estates with estates and decree on single inheritance. - Cancel it. – Reasons for difficulties and confusion regarding issues of inheritance before the publication of the Code of Laws. - Household and economic explanations of our law. – The paucity of definitions of Russian inheritance law The first principles of inheritance are usually derived from the treaties between the Russians and the Greeks, comparing them with the provisions of the short Russian Pravda on blood feud and assuming that it was carried out by relatives in the same order in which they inherited. From these conclusions it would follow that relatives were called upon to inherit in the following order: brother; if he was not there - son; if he was not there, the father; further – nephew from brother, nephew from sister. In this meaning, others (Nevolin) see the gradualness of the calling; others (Kavelin) do not find her. Based on the above considerations, it is concluded that lateral relatives, except brothers, were not called upon to inherit; in the preference of a brother to a son, they see the action of the native principle, they point to the exclusion of women and the wife’s right to receive a certain share (the wife of the murderer will receive the same amount according to the law). These conclusions cannot be considered accurate, because they are based on guesswork. From the agreements with the Greeks, the only thing that is indisputable is that in Rus' the estate of the deceased went to the family, to dear neighbors, and that it was natural for someone who was on the wrong side to make arrangements for his estate in the event of death (see Nikolsky and Tsitovich). On the basis of the extensive Russian Pravda, they usually distinguish the general order of inheritance from the special one for smerds, boyars and princely husbands - members of the squad. General order: after the father, if he died without a row, without arranging the estate, the children inherit; in this case, a part is given according to the soul of the deceased and a part to the widow if the husband has not assigned anything to her. Of the children, unmarried daughters receive nothing from their brothers, but their brothers marry them off, giving them whatever they can. Children from a slave do not inherit, nor does their mother. After the widowed mother, the one of the children with whom she lived in the house and who fed her inherits in her plot. Stepchildren inherit after their parents, but do not inherit after their stepfather or stepmother. A special order: in the Smerda estate, only male children inherit, and if there are none, then the prince; but it is assumed that in this case he gives a portion of the dowry to his unmarried daughters. After the boyars and warriors, if there are no sons, daughters will inherit. The inheritance of lateral relatives is not mentioned at all. Therefore, Nevolin thinks that in the absence of children, the estate went to the prince. He sees in this a sign that the clan was shaken during the period of civil strife from the death of Yaroslav to the invasion of the Mongols. If we look at the inheritance from the point of view of princely law and dependent ownership (cf. Part 1 of this book, § 16), then we can think that in relation to the prince, only a representative of the family, and not the clan, could be considered the owner of the estate that belonged to the warrior. The rule about stinkers, i.e. tax-paying and predominantly agricultural class, should have referred to movable property, since they apparently did not have land ownership 56 . In addition to the Russian Truth, there is also news about the order of inheritance in the Pskov Judicial Charter (XV century). According to it, the deceased was inherited by: father, mother, son, brother, sister, other close relatives (who were of the closest tribe): therefore, lateral ones were also allowed to inherit. The son was deprived of his inheritance if he did not feed his father and mother to death and left home. Spouses inherited after each other only for life, in support, until they entered into the next marriage (i.e., until a new household was founded). Finally, the Code of Laws of both Ivans decide that after a deceased person without a spiritual one, a son inherits, when he is not there, a daughter, and if there is no daughter, then a neighbor from his family (take the entire estate and the land). From this information it is clear: 1. Women did not inherit at all or inherited in the absence of men; but they were given a portion in case of marriage. 2. Before the legal codes, the clan principle had time to decline, and the family principle was strengthening (see criticism of this opinion in Tsitovich, p. 142). There is no mention of inheritance by grandchildren; there is no mention of the right of representation; grandchildren are apparently excluded by the brothers of the deceased. 3. In the calling of parents to inherit after children, spouses after each other until a new marriage or until death (Pskov), some (Kavelin) see a sign that here it was the custom for family members not to share, but to live together, and the inheritance was retained by the eldest; Therefore, in the decrees of the Russian Pravda they see traces of the South Russian, Kyiv, Little Russian custom - to share after each marriage. This difference is historically associated with the current difference between Great Russian and Little Russian peasant life. For the former, the personality is absorbed into the family, home, and even community. The house is one whole, in which the common treasury is administered by the eldest or the one who is recognized as more capable of managing the household. What members earn must be contributed to the general treasury. Here the concept of inheritance gives way to the concept of division of the house. But while there is no division, there is no inheritance after the deceased. It is known that until the present century, ownership of land on a patrimonial basis was available only to the service class (see this book, Part I, § 16–18) and was almost not available to the mass of the agricultural population. In such a state of economic life, the concept of inheritance of person after person could not be established, and there was no need for the legislator to establish an exact rule about inheritance until it affected personal land property or personal possession. As a result, we see that in the very era when the concept of land ownership begins to take shape, during the period of the Code of Laws and then the Code, the definitions of the law on inheritance do not mean the whole mass of the people, but only one class of service people, they develop not a general zemstvo law, but the right of the service people of the Moscow state who owned estates and estates. There are no special provisions in the laws on the right of inheritance in those classes that, not belonging to the service class, could own real estate, in the urban, tax classes. Corresponding to this difference is the difference in jurisdiction. According to the general rule that came to us with the adoption of Greek church law and church organization, inheritance cases were dealt with by church authorities, and the law for the trial of these cases was the Greco-Roman decrees on inheritance included in the Helmsman's Book. But as soon as the question of inheritance touched upon property that had a special state significance, and ownership, the property of which was state-owned, a special, semi-state, semi-civil right of inheritance was formed for these properties, and disputes about inheritance in these properties passed into the special department of the places in charge of this type of property (local order); Consequently, for taxable property, the general church jurisdiction remained in force, and in relation to the property of the lower agricultural population, there has not yet been (from a state point of view) the need for any jurisdiction, and therefore, for any laws. This special inheritance right for the service classes, as it spreads to all classes of personal land ownership, is little by little generalized and takes on the meaning of general, zemstvo law. In our formation of inheritance law, we notice the following main features. 1. The desire to keep the real estate belonging to it in the family. This desire first appears in the upper classes, among the descendants of ruling princes, nobles and nobles. 2. The struggle of the Moscow sovereigns with the descendants of appanage princes and with the boyars gives rise to certain decisions determined not by the family principle, but by temporary, random political goals and aspirations of the state. 3. With the exception of a few descendants of appanage princes who held their lands as patrimonial rights, the service classes received their estates for the most part from the Moscow sovereigns in the form of estates for service or in the form of favors and salaries for service. As a result, ownership did not have the properties of a definitive and unconditional right, did not have all the signs of the right of full ownership and was subject to restrictions on disposal. Moreover, due to the official nature of the ownership, men should have received a decisive advantage over women: the latter received only a share of subsistence and dowry, and inherited when there were no men. The order of inheritance was not the same on estates and estates. Estates were patrimonial estates that belonged to members of one clan and upon the death of the owners passed to members of the same clan; purchased from private individuals; those who have served, granted private ownership by royal mercy; purchased from estates and state-owned empty lands into patrimony. Leaving aside the decrees of John IV regarding princely and boyar estates, as having an exclusively political character and issued under the influence of the struggle against the boyars, we move directly to the 17th century, when the struggle calmed down and the principles that determined the order of inheritance in estates and estates began to become clear. 1. On estates. According to the essence of local law, the beginning of inheritance could not be applied to it. It was essentially temporary, conditional, lifelong ownership - a right that belonged to the owner’s person to the extent that he performed official duties with his person. Estates were given at a certain salary, corresponding to the place, rank, and service. Consequently, the son, entering the service, received the corresponding estate not because he is the son of his father, but because he has the right to a certain salary due to his service; could, therefore, receive his father’s estate, he could also receive something other than his father’s, someone else’s. Women, since they did not serve, had no chance of receiving estates at all. But due to the force of circumstances, the estates began to little by little take on the character of hereditary estates, and finally became equal to them altogether. First of all, it should be noted that every local property always and everywhere strives to get closer to the patrimonial property. If the right to an estate depended on personal service, and not on clan origin, then, on the other hand, the right to serve, to be a servant and a landowner depended on origin. Family origins and blood ties had to be reflected in property rights. It was natural that the son, who did not have his own estate, wanted to receive his salary after the death of his father from the very estate that belonged to his father. Economic considerations also required this. The government itself had in mind both this economic goal and the service goal, so that people belonging to the same branch of military service would be located in the same places, and it could be assumed that sons were ranked in the same branch of service with their fathers. Under the influence, probably, of these or similar considerations, little by little it was recognized as a rule to give estates to sons, preferably from their father's, so that even what was distributed to strangers began to be turned back to the sons. But if there were no sons or there were extra quarters left behind their allotment, then the remaining quarters were given as salary to further relatives of the deceased and to strangers, the last after relatives. A deceased serviceman who did not have estates, but only estates, could still have young sons, a wife, daughters, mother and other relatives who were not ready for service, who lived in his care. It was necessary to ensure their existence. This is how the rule appeared (1611): a widow with young children, even daughters, should be given the estate of the deceased for subsistence. But the sons, having reached age and service, received their local salaries from this estate. In such a case, a rule appears - a childless wife and daughter are assigned a portion from the estate of the deceased to live on until marriage, tonsure into a monastery, or death. This part, initially uncertain, was determined gradually (1/2 of the 17th century): for widows of those beaten in the service - 20 quarters per hundred; widows of those who died during the campaign - 15/100 quarters; for widows of those who died in general service - 10/100 quarters; and for daughters - half against widows. From this, the average share of the wife in real estate was then formed - 1/7, the average share of the daughter - 1/14 (from the bellies 1/8 and 1/4 parts, according to the rule of Greco-Roman law). In this way, the inheritance rights of the wife and daughter were established; First, childless wives received a subsistence estate, then widows with children. With the establishment of the daughter part, the direct obligation of relatives to feed their relatives and give them a dowry in those cases in which they received their share according to the law was also eliminated. The family principle crept more and more into the estate. It ended with the fact that in 1684, all of the father’s estates were ordered to be given to descendants - sons, grandsons, great-grandsons, without distinction, whether they were of age or not, whether they were put into service or not. In fact, estates have already become equal to estates. 2. Inheritance in estates. At the beginning of the 17th century we see that the children of the deceased were considered the heirs of the estates, and the wife was given a share. However, the law has not yet decided to declare lateral relatives direct heirs after a childless owner. But during the 17th century this view gradually changed. The right of inheritance is recognized for collateral relatives without redemption from the church. The ancestral principle was established in inheritance and property in its new form, with the advantage of descendants over lateral ones, with the right of lateral ones to inherit, with the right of personal property for the owner, with the right of sale assigned to the person of the owner of the family estate, with the right of redemption for relatives. Regarding inheritance in the lateral line, a rule was developed: the closest line excludes the further one (the unlimited right of the laterals was limited, and then only for a while, by the decree of 1712 on single inheritance - from the female tribe to the grandchild). Difficulties concerned the issue of women's inheritance. The question of the measure and degree of their inheritance right was in connection with the concept that a woman belongs to someone else’s clan. Until such an opinion was finally established, wives could be considered heirs after their husbands. Back in the 17th century, a childless wife inherited after her husband not only in the services purchased from the estate, but even in the family estates. But then this right was limited when the advantage of the clan and family principle became clear in the law: the wife, as not belonging to the clan, was given estates earned and purchased from the treasury only for living after her husband, for feeding, and not as property; and then, upon the wife’s entry into a new marriage, upon tonsure or death, these estates returned to the husband’s clan. For a long time, estates were inherited by wives as exclusive property, but finally, in relation to them, it was recognized that after the death of the wife they are returned to the children of the deceased with their offspring, and if there are no children, then they go back to the husband’s clan, and not to the wife’s clan. Upon the final connection of the estates with the estates, the wife’s right in the simplest form to inheritance in the immovable estate was finally determined, according to the size of the estate right, i.e. 1/7 and 1/4 parts (1731). Regarding the rights of female relatives, the code of law recognized that daughters inherit when there are no brothers with them. This fundamental rule remained constantly in force, but when in the 16th century the right of inheritance of the family in estates was limited by decrees, daughters and generally female relatives were excluded from inheritance in ancient princely estates; the successor was entrusted only with the responsibility of arranging a dowry for the women. The decrees of Ivan IV are silent about their right to inheritance in the estates of the ancestral and honored ones, but under Tsar Mikhail it was ordered that the estates of this family can remain with women according to spiritual and data, therefore, according to acts of the will of the deceased, and not according to legal inheritance; however, soon after that in 1628, it was recognized that daughters have the right to receive such estates only when there are no brothers with them; Moreover, the rule is recognized (repeated in the Code) that children, sons and daughters of the grandfather inherit with his sons and daughters and their uncles and aunts. At the same time, a rule was established regarding the specified portion of the estates, exclusively in favor of the daughter; Regarding patrimonies, the rule: a sister is not a fiefdom with her brothers, clarified in 1677 in the strict sense for both descending and collateral lines, so that only in the absence of male offspring from brothers, sisters inherit with their female offspring. Among the most unclear and controversial issues of inheritance law in the 17th century was the question of the right of representation, i.e. about the right of children, no matter how many there are, to receive for their share the part that their father would have received if he had remained alive at the moment of opening the inheritance. The legislation was confused by the exclusion of women from inheritance under men. Should granddaughters of a son inherit along with their aunts? With uncles? Do sons exclude aunts from their daughters? Do their daughters inherit with them from another daughter? Many similar questions arose, and they were all resolved one way or another. This was the state of our inheritance rights under Peter. He wanted to arrange it on simple grounds, for his own state reasons. The fragmentation of real estate among many heirs seemed to him harmful in many respects. For the state, he says in the decree, as estates are divided, the reliability of paying taxes decreases more and more, while the burdens of the peasants increase. For families: noble families, the more the estate is divided into them, the poorer they become and finally completely fall. For morality: the heirs, having inherited even a small plot and, therefore, being provided with their maintenance, shirk public service and indulge in idleness - the mother of all vices. Peter expected completely different consequences from the indivisibility of real estate. Various types of real estate estates at that time had already become closer to each other. Peter united them under the common name of immovable estates and established joint inheritance for everyone on March 23, 1714 on the following grounds. 1) All real estate after the father or mother is inherited by one eldest son. 2) After a childless person, the immovable property goes to one close relative named. 3) The last in the clan can, in order to renew the surname, give all the real estate to one of the relatives so that her husband takes her surname. 4) For a childless wife, the husband’s real estate remains to live on until death, until he enters into a new marriage or enters a monastery, and then goes to the husband’s clan, on the basis of sole inheritance. This order of succession did not last long. In 1731, on March 17, by decree of Empress Anna Ivanovna, it was canceled and the previous order was restored. The reasons for the restoration are the following: the parents, out of equal love for all their children, used all means to divide the estate among them in equal parts, resorted to false sales and mortgages for this, obliged the children with great oaths so that the one who received the entire estate after them would transfer part of it to his brothers; From the inheritance, quarrels, hatred, and murders arose between relatives. (However, in addition to these reasons, there could have been another, political motive - to prevent the strengthening of noble families, which could result from single inheritance.) With the publication of the decree of 1731, the previous division of real estate into different types was not restored, and the previous order distinguished estates from estates. Therefore, new changes have been made to the law. The difference between the patrimonial order of inheritance and the local one has been abolished, and the local order has been extended to all real estate. The parts of the spouses and daughters are determined, and the specified part of the wife and daughter, originally established for the estate, received the value of a general right to allocation from all the immovable estates of the deceased, and, moreover, not for subsistence, as before, according to the Code, but for ownership. Following the abolition of the decree on single inheritance, it was ordered that the case be resolved according to the Code and according to the new decree articles, issued not in opposition to, but in addition to the Code. Meanwhile, neither the Code nor the newly-decreed articles expressed firm, definitive and general rules of inheritance. The previous division of real estate that existed during the Code era was destroyed, and it was not always possible to decide which of the new decree articles were contrary to the Code and which only complemented it. Hence, many contradictions and bewilderments arose in the application of inheritance laws. Resolutions of confusion on the part of the highest legislative and judicial authorities did not always contribute to clarifying issues, and often confused them even more. The agreement of contradictions and the establishment of common principles of inheritance followed no earlier than with the publication of the Code. Since that time, this part of our legislation has undergone the least change, and the fundamental rules established when the Code was published remain in effect to this day. The Russian law of inheritance developed organically and in its entirety only in relation to the order in which relatives are called upon to inherit, and regarding the restrictions of inheritance law for some persons and for some property. In all other respects, the Russian hereditary institution is distinguished by the absence or extreme poverty of definitions, and the definitions that exist have a fragmentary, random appearance, without connection with a clearly recognized idea, to which all definitions that arose through organic growth or development should be attached. This poverty, however, becomes understandable when we think that our hereditary law arose in the extreme simplicity and poverty of economic life, in which agriculture prevails over industry, little capital is formed and its circulation is slow. The first monuments of the Russian law on inheritance relate to such a state of society in which the main form of life was the family, and property that was under the control of the elder was assigned to the family. It is difficult to apply the Roman concept of inheritance to such a state as the succession of a person by property. To such a state, the most natural concept is applied to the division of a common household, after the death of the elder to whose person it was attached, or even during his lifetime, when one of the family members, by his mate and breed, is separated from it into a special family. Each family member has reason to expect and demand his share from the common economy, when it is divided into separate families, has a ceiling, since he represents a unit in the family capable of giving rise to a special family. A woman cannot be recognized as such a unit, because she goes to someone else’s family: she only needs to be equipped to go out, in the presence of men, and therefore it is natural that a woman does not have a direct inheritance in her blood family when there are men in it. Such a unit cannot be recognized in the household of the father, mother, grandfather, grandmother, because there is no reason for them to separate, there is no point in founding a new farm, and therefore it is natural that after the death of the owner there is no department for those ascending. When one of the family members died without waiting for the division, his children do not lose their rights during the general division into the father’s part - this is the right of representation in the simplest sense. This is the plausible form of the original inheritance, as the first monuments of Russian legislation present it to us; It is not surprising that we do not find in them a positive indication of the order in which family members are called to inheritance, and the right of members of the clan to inherit is not mentioned, since the clan is not visible behind the family, either in legal or in its political meaning (see Tsitovich about this). The concept of clan in connection with inheritance becomes clear with the organization of the service class in the state and connected with the service of personal land ownership. At the same time, questions arise and are gradually being resolved about who, after whom, inherits property of one kind or another, but these questions are exclusively of a state nature, and in their resolution one does not see the organic development of the principles of civil law. So, little by little, by separate decrees, we are building a hereditary order, without a coherent system. Our current law on inheritance was originally an institution for the highest owning class, and now has practical importance almost exclusively for a minority, insignificant in number in comparison with the million-strong majority, for whom this law has almost no practical significance. The economic environment in which this law was supposed to operate moved forward a little in its development and for a long time remained with the properties of agricultural life. Is it surprising, therefore, that the idea of ​​the universality of inheritance was not directly expressed in our country before the publication of the Code of Laws? In the absence of proper credit, with the weakness of industrial development, with the general uncertainty of values ​​and the poverty of industrial transactions, the need for this establishment could not be sufficiently clarified. The idea of ​​the responsibility of the heir for a long time, and after the Code, still remained with us at the level at which it appears in the Code: “the plaintiffs’ claim is to rule on the debtor’s wife and on the children or on the brothers who are after him in the courtyard and in the bellies: who are in those of his estates and in the bellies: not those of his family who will get the bellies and estates.” There is nothing in these expressions to indicate the idea of ​​a universal representation of the deceased in property; inheritance is simply the transfer of property with the responsibilities and rights attached to it. That is why the acceptance of an inheritance and the renunciation of it are not clarified in their legal meaning for a long time; it can be said that even to this day the idea of ​​both has not yet been fully clarified and has not developed institutions corresponding to it. We were cut off from Roman civil law by history, everyday life, poverty of science and education; We did not have that rich development of urban industry, which in the West, having multiplied capital and created credit, aroused the need for a consciousness of ideas and for the adoption of the institutions of Roman law. These are the reasons why our inheritance law is still so poor in content in this regard. § 38. When inheritance opens under Russian law. – Restrictions on inheritance rights. – Property that is the subject of inheritance. – The relationship between inheritance by law and will. – Who can be the heir? Inheritance by law is the totality of property, rights and obligations left after a deceased person without a will (1104). Therefore, these are the necessary conditions for the concept of inheritance. 1) Death. Before the death of the patrimonial owner, there can be no talk of inheritance against his will (there can be an allocation according to his will). An exception is allowed only in the cases specified in Articles 1151 and 1153. But, as a general rule, before the death of the patrimonial owner, no one has a valid right to his inheritance, and all kinds of records about the assignment, sale or encumbrance of the expected inheritance with debts, during the life of the patrimonial owner, are not valid before the law (Zak. Civil. 710). Not only physical death serves as a reason for opening an inheritance. It opens with political death, i.e. deprivation of the rights of the person to whom the estate belongs. In this regard, the votchinnik is considered as if dead, and the estate passes to his legal heirs. If an inheritance were subsequently opened in his favor, then it goes to those to whom, even in the event of his death, it would have gone by right of representation (1222). But if a crime that entails deprivation of rights is also accompanied by confiscation of property, then there is no legal inheritance after such a criminal. If his parents were still alive at the time of confiscation, from the inheritance that opened after them during the life of the criminal, the share following him goes to the treasury; from this it must be concluded that if this inheritance opens after the death of the criminal, then the confiscation does not affect the share that follows him (see the rules on the liquidation of confiscated estates, 1868, Poln. Sobr. Zak. N 45431, § 27, 28). The inheritance opens with entry into monasticism, i.e. with renunciation of the world and all acquisitions. IX. 354, 438–411, 475. Zak. Gr. 1223. Anyone entering monasticism does not keep anything to himself (for minor exceptions among Catholics, see IX. 440, 443). Spiritual authorities are only allowed to make wills regarding movable property in favor of private individuals. It follows from this, according to Art. 363. IX t., that after them the legal inheritance opens. Everything that remains after the death of the monks goes into the monastic treasury; however, if they had capital that was given on loan, for preservation, for circulation, etc., before entering monasticism, and did not go to the heirs upon tonsure, then property of this kind after their death should go to their heirs, and not to the monastery. In this sense, it took place in Moscow. General The Senate meeting decides on the case of the nun Xanthia. In the East, in Byzantine legislation, episcopal property was distinguished between those acquired before episcopacy (bona partimonialia) and those acquired after consecration (b. clericalia). He could dispose of the former with full right, the latter was considered the property of the church and was in his lifetime use, and during his lifetime he was managed by the economy of the department. Currently, in the Church of Constantinople there is such an order that upon the death of a bishop, all his property, without distinction, comes under the jurisdiction of the Epitropia, which divides the value received from it into 3 parts: one goes to the benefit of the patriarchy, the other to the benefit of the diocese; the third - to relatives. In the modern Greek church, inheritance after the bishop is determined by general civil laws. The monks also differed in the property acquired before and after tonsure. The first could pass to the heirs. But the cathedral decree of 861, from a strictly church point of view, recognized all property after the monk as the property of the monastery; however, government legislation did not adhere to this strict view. In Russia, bishops distinguished between house property, or state property, and cell property. The latter was usually disposed of by the kings upon the death of the bishop, but the spiritual authorities could also make wills regarding this property. This order has been canceled Additional. to Spirit. Regulations of 1722. It was ordered that all property after the highest ranks be transferred to the Synod, and after the lower ones - to the monastery treasury. The instruction of the Economy Board of 1763 is expressed in the same sense. But by decree on February 20. 1766, monastic authorities are allowed to make wills in favor of private individuals, but not in favor of monastics, as explained in Mn. State Sov. 1858. For interesting correspondence about this, see Collection. Mn. and review Metropolitan. Filareta T. IV, N 457. A) Is inheritance opened in the estate of missing persons, and in what manner? Our law, unfortunately, is completely silent about this. Articles 1 part X t., relating to the missing (1243, 1244), although placed under the title: about calling heirs, strangely do not mean inheritance law at all, but the right of the absent person, upon appearance, to receive his estate, which, in the absence of it, should be taken into government custody. And these laws, together with Art. 326 and 327. Lay down about the order. and 852 Art. Est. Corner. The court understands the case of unauthorized stay abroad. In the new Const. Gr. Court. 1451–1460 art. determine the procedure for certification of unknown absence, but still leave in uncertainty the question of the legal meaning of unknown absence, which is not resolved by citizens. laws. By virtue of these articles, it becomes possible to bring a claim against a missing person, but the right to claim an inheritance is not yet open to his heirs; although in 1455 art. mention is made of heirs appearing to be summoned (after 5 years, from the time of the first publication, the court begins, upon the appearance of the heirs, to consider the case), but there is no such resolution that directly states their ability to exercise their inheritance right. It would be necessary to supplement this shortcoming with a positive decree of civil law that after 5 years from the date of publication, recognized heirs can take possession of the estate and own it until the expiration of the 10-year period specified in Art. 1244. Zach. Gr. conditionally, without the right to alienate the estate. However, even before the 5-year period, these heirs should have been given the opportunity to monitor the guardianship management and at least some participation in the use of income from the estate (cf. Cass. decision 1870, No. 546). B) Unknown absence leads not to deprivation or limitation, but to suspension of rights to property. But there are similar cases in which the suspension of rights to an estate is also combined with some of their restrictions. This is, for example, the state of estates belonging to persons who have left without permission abroad. B) By force of Art. 12 adj. to approx. 1 to st. 1238 Zak. Gr. inheritance does not take place when 1) at the very death of the person who carried out the trade, or after that, legal signs of his insolvency are revealed; 2) when this insolvency is declared by the court. But this limitation is conditional. There can be no question of inheritance after such a person during insolvency proceedings, but at the end of it the insolvent debtor, in accordance with clause 4 of Art. 618 Set. Court. Bargain. ed. 1893, are returned if there are free remains of the property, and in this case, his heirs can claim rights to this remainder (Article 6 appendix to note 1 to Article 1238 of the Law of the Russian Federation). Wed. still Ust. Court. Bargain. ed. 1893, art. 623, 624 paragraph 4 and dec. Kassats. Dep. 1870 N 244. 2) There must be property after the deceased. If there is no property, then there can be no question of hereditary transfer of rights and obligations, because personal rights, for example. by state, are transferred to children, by birth, during the very life of the parents as a result of the very event of birth at a certain minute. A) On the heredity of some positions among foreigners, see Uchr. inorodts., ed. 1892, Art. 122, 123. B) The custom that existed among the white parish clergy of transferring places and positions to heirs, relatives or sons-in-law was abolished in 1867. See Set. General Ghost ed. 1892, Art. 539. C) Property that is held in a personal lifelong or assigned position is not inherited - for example, the Constitution. Cossack. Sat down. Art. 48, Cont. '63 D) Regarding the right of patronage in the Lutheran Church, the law says that it is hereditary, unless it is connected with the estate; but can only belong to a Christian (Const. John Isp. 660). This right is indivisible in the division of heirs (Article 662). D) If a populated estate is inherited by a person who does not have the rights of hereditary nobility, then it cannot come into direct possession until the act of redemption of the land plot by the peasants is completed, but until that time it goes to the guardianship department; however, the heir is free to sell or transfer the estate even in this state to a hereditary nobleman (Gr. Z. 1304, 1308). E) Some property, by its nature, can belong only to persons belonging to a special class, which is especially entitled to own it, or is removed from the possession of persons belonging to a class that is deprived of this right. Therefore, there are cases in which persons deprived of the rights to own certain property, if such property comes to them by inheritance, are obliged to sell it within the prescribed period. Before the liberation of the peasants, this was the duty of the heirs of the non-nobles regarding the inheritance of noble estates. But, with the weakening of the importance of noble estates, this restriction lost its force, as well as a similar restriction for foreigners. Currently, only the following restrictions remain in the law. A Jew, having inherited real estate outside of those areas in which Jews are allowed to own such property, is obliged to sell it within 6 months. T. IX. 960. A similar restriction has recently been established for foreigners in the Kingdom of Poland, in the provinces of Bessarabian, Western and Baltic, except Estland, as well as for Russian subjects from foreigners and immigrants from the Kingdom of Poland to Volynsk. lips (IX. 1003, note 2, appendix according to Cont. 1890 and Pol. Com. Min. 1895, Collected Laws No. 472). Special authorization by government authorities is required when inheriting printing houses, lithographs and metallography. See Set. Census ed. 1890, art. 161. – For pharmacies, see Art. 556. Est. Doctor, ed. 1892 When gold mines are inherited by persons who do not have the right to engage in gold mining, these persons are obliged, within two years from the date of acquisition, to sell or transfer their right; otherwise, the mines are sold at public auction. See Set. Horn. ed. 1893, art. 438, 439. G) There are personal rights that arise as a result of the death of another person, but do not constitute an inheritance. This is, for example, the right of a widow or daughter to a pension. The right to a pension cannot be counted among the property that is part of the inheritance and has value in the person of the deceased patrimonial owner; therefore, receiving a pension is not associated with the responsibility for the debts of the deceased, which is inseparable from the acceptance of the inheritance. H) Copyright cannot last longer than 50 years after the death of the first owner or after the first posthumous publication. This right passes after the author himself to his heirs to the same extent as he had, i.e. for the heirs, it retains its material value and its personal or spiritual significance. Both the author and his heirs cannot have his works and translations, handwritten and printed, seized, with the right of publication, sale and alienation in favor of creditors: for this, the consent of the heirs is required (Pol. Recovery. Civil. 354–356. Establishment Gr., Court. 1041. Law. Gr. 1185). It is also required for publication in the light of private correspondence and private notes (Zak. Gr., art. 4209, note 2, appendix, art. 9, 10). The decision of the Senate in the Pavlov case (Cass. decision 1868, No. 552) recognized that the right to publish a magazine or newspaper, as a property right, forms part of the inheritance, and therefore the continuation of the publication by the heir constitutes a legal sign of acceptance of the inheritance. 3. We can talk about inheritance according to the law only if and to the extent that the deceased during his lifetime did not dispose of his property through a will. When a legal will has been left, then there can no longer be an inheritance by law in the estate to which the will extends. But only acquired property is subject to the free disposal of the patrimonial owner in the event of death, and in any case the ancestral property must go to the legal heirs. Hence the rule of Article 1110: the inheritance passes to the heir according to the law: a) when the deceased left the family estate; b) when the acquired estate remains without a will; c) when the testamentary disposition is declared void by the court. Therefore, when a will is left after the deceased, then all property correctly bequeathed is excluded from the legal inheritance and follows not according to the legal order, but according to the will of the deceased, and the legal inheritance is opened only in that property that was not included in the will or could not be bequeathed. Legal heirs are considered to be persons related by blood to the deceased, without limitation to a certain degree, until the complete cessation of the family line. If there is no one from a blood relationship, then the property is recognized as escheat and, as ownerless, goes to the treasury or in favor of certain institutions and classes, as will be discussed below. But persons connected by blood must also be legally capable of inheriting. Some circumstances make them incapable. Relatives cannot inherit if their kinship does not stem from a legal marriage (1113 and 136, 137), unless in this respect they were considered among the legitimate children according to the Highest Decree or legitimized by the established procedure (144, 1441 according to Prod. 1891, 1119; cf. Cass. decision 1880, N 91). Adopted children have inheritance rights on an equal basis with the natural children of their adoptive parents only in their acquired property, and if the adoptive parent has only daughters left, then they inherit in the same share as them (156 according to Ext. 1891). A relationship by property does not give the right to inheritance (1120). In general, our old law of patrimonial relations paid attention to hereditary rights only in those cases where the property passing by inheritance was important to the state. This was the case in the classes that had the right of patrimonial ownership. The tax-paying class, and especially the peasant class, stood outside this right. The heir may be a person who was not yet born at the moment of the death of the patrimonial owner, as long as he was conceived at that moment; may also be a foreign national. There may also be persons with mental and physical disabilities; a madman is not excluded from inheritance (1106). A Mohammedan who has accepted the Christian faith is not excluded from the inheritance and receives the part following him in the event of division, even according to Mohammedan law (Article 1340). The heir must have full civil rights: one deprived of all rights to the estate does not inherit and is considered as if dead for the inheritance (Gr. Law 1107). Monastics who have renounced the world cannot inherit (Law. Gr. 1109. IX. 356, 439, 475). For the exception for Catholic nuns and for Armenian monasticism, see IX. 443, 475. With the deprivation of the rights of the estate, all civil rights arising from marriage and related union are terminated; therefore, a natural blood connection through a person deprived of rights does not give the right to inheritance (see about this decision of the Civil. Cass. Dep. Senate of 1874 on the village of Muravyov). Our law does not mention heirs who are incapable due to unworthiness. In the case of the will of the foreman Lopukhina, the State Council (in 1839) reasoned that our laws do not contain a decisive resolution on the direct exclusion of children from inheritance for disobedience to their parents; but if this elimination, in relation to the acquired property, was allowed, then even then it should not be eternal, neither in relation to those eliminated - through depriving them forever of the opportunity to take possession of the property, according to the rights of inheritance that could even subsequently open up, nor in relation to descendants who were innocent of the misdeeds of their ancestors. Land plots purchased from the treasury in the Kingdom of Poland, on a basis. Pos. 1871, can be inherited only by persons of Russian origin, but if there are none, they are sold, and only the sale price goes to the heirs (P.S. Law No. 49763, Art. 20). § 39. General provisions of the inheritance order. – Inheritance in descending line. – The indicated share of the daughter. – Equation of daughter parts with filial parts. – Advantage of men over women. – Right of representation. – The right of stepchildren. – Differences in the Lithuanian Statute After a deceased patrimonial owner, his relatives, members of his clan, connected with him by a union of legal kinship, are called upon to inherit. They are called to inheritance not just by proximity of degrees, by number of births, but also by proximity of line. In order to determine the right to inherit after a known person, it is necessary first of all to determine in which line of kinship with the deceased the applicant is located, and if this is the line closest to the deceased, then the applicant can be the heir after him. For the meaning of gender, line and degree, and for the rules for calculating kinship by line and degree, see above. In inheritance, the immediate line excludes the further one. So, if there is a contender for the inheritance after me in the 1st side line, for example. dear brother, then there can no longer be any question of the right of the 2nd side line, where are my cousins. If applicants in lines equally close to me, for example. cousins ​​from the grandfather and grandmother, then there may be a competition in inheritance between these lines. When lines are defined, degrees are calculated in each of them. In each line, the nearest degree excludes the next one. But if, at the opening of an inheritance, the person closest in degree to the deceased is no longer alive, but there are his descendants, then the place of this person is taken and these descendants, children, grandchildren, great-grandchildren, etc. take his place and enter into his degree. This is called the right of representation (Art. 1123). So, if after the deceased A his brother Z was left with his son and grandchildren, then the son Z and grandchildren D and E with a living father and grandfather do not have the right to inherit after A, because Z is in the closest degree of kinship with the deceased patrimonial owner, and the closest degree excludes a further one. But when after A there is a brother Yu and a son (F), or grandchildren (D, E) of another brother Z, who died before, then these descendants enter into the degree of their deceased parent or grandfather and share the inheritance after A together with Yu, i.e. with that person who is equally related to the parent or grandfather whom they represent. They will receive the same part that their parent or grandfather would have received if he had been alive at the opening of the inheritance after A, and they divide this part among themselves without exception (Art. 1125). Women in this case only use the inheritance when there is no man with them equally; on this basis they also enjoy the right of representation, i.e. the daughter then only represents her father, or grandson - grandfather or grandmother, when she has no living brothers (Art. 1126). Ascendants do not enjoy the right of representation. Parents are called to inheritance, but not grandparents, and parents are not unconditionally, but only in a limited sense: they prefer, under certain conditions, to the lateral relatives of the deceased, but never enter into competition with the children of the deceased, their grandchildren (1124). Spouses receive a certain share after each other; their right is not based on a blood or family connection, but stems historically from the obligation to mutually support each other in the means of maintenance. It follows from this that the spouses, not having one after the other the right of inheritance, do not have the right of representation; therefore, it is unlikely that the Senate reasoned correctly, in decision 1879, No. 342, that spouses enjoy the right of representation in the case provided for in Art. 1149. Descending inheritance The closest right to inheritance after a deceased father or mother belongs to the sons. If only the sons remain after the deceased, then they divide the inheritance equally among themselves, without exception. The same right belongs to daughters, if only daughters remain. But when daughters and their sisters remain with the sons, then the sister in the strict sense is not an heir to the brother. Each daughter then receives from the parental estate only the so-called specified portion, namely 1/14 of the immovable and 1/8 of the movable 57 . This part of the daughter should in no case exceed in size the part that goes to each brother, and therefore, if after the deceased there are so many daughters left with the sons that, by assigning the indicated parts to them (from movable or immovable estate), the filial parts would turn out to be less than the daughter parts, then the parts of the sons and daughters are compared. So, for example, when there were 10 daughters and 5 sons left, then from the immovable property the first 10/14 parts would follow and then only 4/14 parts would remain for 5 sons, so that the share of each son would be less than 1/14 part; then both sons and daughters should be assigned 1/15 of the share. When there were 5 daughters and 5 sons left, then 5/8 of the movable property would go to the daughters, and the remaining 3/8 would go to the 5 sons, i.e. each less than one-eighth of the share: then both sons and daughters should be assigned 1/10 of the share. All children of the deceased who were alive at the time of his death have the right to inheritance. If one of them died before this time, without leaving behind children and offspring, then there can be no question of his participation in the inheritance. But if at the moment of the death of the patrimonial estate there is an offspring of one of his children who died before, then this offspring enjoys the right of representation, enters by inheritance into the right of his parent, which would have belonged to him if he himself were alive at the opening of the inheritance: the living receive a part of the deceased, whose person they represent (cf. Cass. decision 1876, No. 444; 1880, No. 272). They exercise this right of inheritance directly: they inherit not from their parent, but directly from the ancestor after whom the inheritance opens, but they inherit from it for the reason that they represent the personality of their parent. At the moment of Peter’s death, all his children and grandchildren are no longer alive: he is succeeded by his great-grandsons Alexey and Karp, because they represent the personality of their father Fedor and their grandfather Ivan. At the same time, it is in no way assumed that the property of the deceased Peter passes first to those who are no longer alive - to his son Ivan, then to his grandson Fyodor, and through the latter - to his children Alexei and Karp. By the right of representation in an inheritance, property passes directly to the representatives, without affecting the person of the represented, without any thought of transfer from the represented. This difference is of practical importance. If the property of great-grandfather Peter, which went to his great-grandchildren, passed to them only by inheritance from his father or from his grandfather Ivan, who was supposed to inherit from his father Peter when he was alive at his death, in this case the inheritance would pass to the great-grandchildren not only with the debts of the great-grandfather, but also with the debts of the grandfather or father; but this does not happen and should not be so (v. 1262). On the contrary, if Ivan had outlived his father Peter by one day, then Alexei and Karp would have received the same great-grandfather’s estate as an inheritance not from their great-grandfather Peter, but from their grandfather Ivan, therefore, it would have passed to them with both Peter’s debts and Ivan’s debts. To the extent that the inheritance belongs to the person represented, to the extent it belongs to the representative. Peter dies. If his sons Nikolai, Karp, Anton were alive at that moment, then their sons and grandchildren would not have any right to inheritance. So Sergei and Fedor, the sons of Ivan the living, do not have this right. But Nikolai, Karp, Anton are not alive at the moment of the opening of the inheritance after Peter. Their degrees include their descendants as follows. After Karp his son Alexander would follow, but Alexander is not there either, but his sons Vasily and Andrey, the children of Alexander, the grandchildren of Karp, the great-grandsons of Peter are still alive. They will receive and divide equally the part that would follow Karp. After Nikolai there was only one daughter left, Anna. She is the only representative of Nicholas, who, as the son of Peter, would receive a full inheritance share. She will receive the full share of her father Nikolai. Anna's aunt, Peter's daughter, also survived. She, as a daughter, as a woman, will receive after her father only 1/14 of the real estate from his inheritance, while her niece Anna, the representative of a man, her father Nikolai, will receive his full, male share. But Peter also had a son, Anton. He is also dead; after him there remained a son, Vlasiy, and a daughter, Olga. What to do here? Is Vlasiy alone using the right to represent his father Anton in the inheritance and will receive the entire share that followed his father, or at the same time Vlasiy’s sister, Olga, also using the right of representation, should receive from this share 1/14 of the immovable and 1/8 of the movable? Here we touch on a question considered by many to be controversial, the question of the right of representation belonging to women in front of men. Others believe that in the above case of a grandson, a filial daughter, after the death of her grandfather, participates in his inheritance, to the extent of her deceased father, by right of representation, even with a living brother, and receives the specified daughter's share from the property that would have gone to her father if he had remained alive at the opening of the inheritance. It is difficult to recognize this opinion as valid. Let us first recall the general rule of Article 1126, common to all lines: female persons enjoy the right of representation when they, due to the lack of male sex, are called to inheritance. This rule, of course, would not have been stated if the law allowed the inheritance of women by right of representation and with men in the same degree as them. Next, let us recall the strict difference between inheritance and the right of representation: the latter is not an inheritance, but, so to speak, a path, a method to inheritance. When we talk about inheritance, we must keep in mind the person after whom the inheritance opens. In the example given, we are talking about the inheritance after Peter, and not after Nikolai, Karp, Anton, etc. Here we can only talk about Olga’s inheritance after her grandfather Peter, and not after her father Anton. When she inherited after Anton, she would have received her designated daughter's share: she, of course, received it in due time, when at the death of her father he ended up with the estate. But after the grandfather, with his grandson Vlasia, the male heir, the granddaughter is not an heir. Our legislation has historically developed the following general rule. A woman participates in the overall division of the inheritance only when there is no man in the same degree with her. Except in this case, a woman's inheritance is allowed in only one form; in the form of a specified share, and this form can only be twofold: widow's and daughter's. Then there was never any mention of other forms in our law. There cannot be a grandchild's share. Let us recall the historical origin of the specified share: this is a part of the estate determined in a constant amount, allocated to the wife for subsistence after her husband, and to the daughter for subsistence or dowry after her parents. The daughter is separated from the family and is expected to move into someone else's family, and with the allocation of the specified portion from the parental estate, all her property claims to the family cease if she has brothers. These brothers are considered representatives of the paternal family, heirs of the parents, and the daughter goes into someone else's family and becomes the beginning of her own family, which she again establishes with her husband: this is the general assumption of the law. When her parents die, in this case she is only a representative of their family in terms of property, when there are no sons left after them. If there is a need for a representative in the clan to which she belongs by birth, she is only allowed to participate in this representation when there are no men equally available to her. Everything a woman can receive with her brothers, she receives as a daughter, but as a granddaughter she receives nothing. They say: if Anton had succeeded after Peter, the amount of his estate would have increased by this inheritance, and the indicated share of Anton’s daughter Olga would have increased in the same proportion. From this it is concluded that Olga should not be deprived of this increase even in the case when the inheritance after Peter does not find his son already alive, but finds his son’s descendants alive. The conclusion is obviously wrong. The inheritance after Anton was opened once and once forever; another time this discovery cannot be repeated. Only at this moment could Olga, with her brother, be considered the heir after her father. Another time, the inheritance opened after the grandfather; as a daughter, Olga received everything she could get under her brother; as a granddaughter, she could receive an addition to her father’s share only in such a case when the law established a special specified share for the granddaughter. There is no such rule, and if there were one, it would be in conflict with the entire system of inheritance rights for women under our law. They will say: it’s a shame, it’s unfair. But this argument belongs to the realm of moral, not legal, evidence. Its place is in the discussion of the law in the field of legislation; but where it is a matter of applying the force of a given, known law to a given case, all that remains is to determine the true meaning of the given law, and considerations of justice can only be allowed within the limits of this legal meaning. So, Olga will not receive anything after her grandfather under her brother Vlasiy. Another matter is Peter’s other granddaughter, Nadezhda. She enters into the rank of her mother Evgenia, represents her mother, and if her mother was not finally singled out in her indicated part during her father’s life, Nadezhda will receive upon the death of Peter everything that should have been due to her mother. The last rule: stepchildren belonging to one of the spouses inherit only in the estate of their parents, and not of their stepfather or stepmother, because between the stepson or stepdaughter and the stepfather or stepmother there is only property, and property does not give the right to inheritance. Special order of inheritance, according to Litov. stat., for Chernigov and Poltava provinces. Property after the father goes to the sons and, by right of representation, to the grandchildren, etc.; Daughters with sons and descendants receive only a dowry according to local law, based on 1005 Art. Zach. Citizen They inherit, with those descending, only when there are no sons or their offspring left. After the mother, both the ancestral and acquired property of the daughters is divided equally with the sons; but if during the life of the mother the son or daughter has already received an allocation or dowry from her, they no longer participate in the division of the inheritance after her; Only their descendants participate, by right of representation, when they themselves are no longer alive (Civil Law 1133). § 40. Lateral line inheritance. – In what cases does a woman exercise the right of representation? – Inheritance in a family estate is in accordance with the origin of the estate. – Inheritance in acquired estate. – Preference for full-born over half-born (Articles 1134–1140) When there are no children and their descendants left after the deceased, i.e. when there is no one in the descending line, the inheritance passes to the lateral lines. If there are relatives in the immediate line, then there is no point in looking for heirs in the further line, because the closest excludes the further. Therefore, if there are brothers or their descendants (in the first line), then the cousins ​​of the deceased or their parents, uncles of the deceased (in the second line) cannot have claims, etc. In each line, the nearest degree excludes the next one. Therefore, while my brother is alive, his children, my nephews, cannot inherit after me, but my brother inherits. If I still have my own uncle, then his children, my cousins, do not inherit, but my uncle inherits after me: my brother is closest to me in degree, in the first lateral line; uncle - in the second side line. Equal degrees divide the inheritance without exception: therefore, if after me there are two uncles left in the second side line, they will both equally divide my inheritance without exception, in equal parts. The deceased - heirs in the closest degree - are replaced by their offspring, enter their degree and receive all that part that would follow the deceased whom he represents; in this case, the offspring inherits by right of representation generationally, even if the heirs do not bear the name or nickname of the deceased. When there are several representatives, then all of them, receiving a part of what is represented, divide it among themselves without exception, if they are composed to the same degree; generationally, when they are not equal in relation to the person represented. Female persons do not participate in the division when there are men in the same degree as them. Sisters with siblings and their heirs of both sexes do not have the right to inheritance. Therefore, if I have a brother and sister left, then one brother inherits, and the sister receives nothing. If what is left behind me is a brother, and the children of another brother, a son and a daughter, then this daughter, my niece, cannot represent her parent, and one of her brothers has the right of representation, and my inheritance will be divided equally - my brother and nephew, and my niece will not get anything. But whenever her brother was not with her, she alone would represent her father and receive half of my inheritance. The rule that sisters with siblings and their descendants of both sexes do not have the right to inheritance, as explained by the State Council, applies to all lateral lines and to all degrees in them (Article 1135, note; cf. Cass. decision 1879, No. 264). The inheritance opens after Peter, who is childless. He has no brothers, therefore no relatives who would descend from the same parent - in the first lateral line, therefore, the rights of a further, second lateral line are opened, in the line of his paternal grandfather, Fedor. In this line there may be his uncles, aunts, cousins, cousins' nephews, etc. If his uncle, Alexey, and another uncle, Ivan, had lived, then both of them would have directly received the entire inheritance, being in the closest degree of kinship to the deceased patrimonial owner in the second lateral line; then there would be no generational division, but between Ivan and Alexei there would be only a pure universal division of the inheritance equally, since Ivan and Alexey would not represent anyone, but would inherit directly by virtue of their right: their father, Fyodor, himself could not inherit after his grandson, therefore, there could be no talk of the right to represent his personality here, and Ivan and Alexey would inherit after Peter simply by blood connection with him, as his uncles, without any introduction. But neither Alexei nor Ivan are alive, but only Alexei’s descendants remain, and they take over his rights. But at the same time, neither his sister Anna, the aunt of the deceased patrimonial owner, even if she were alive, nor her descendants can have any participation in the inheritance by virtue of Art. 1135. In what order will Peter's inheritance be divided among the descendants of his uncle Alexei? Alexei had three sons: Kondraty, Alexander and Nikolai. If all three were alive when the inheritance was opened after Peter, then they would all equally divide it among themselves without any participation of their descendants, since the nearest degree blocks the way for all further degrees. They would have received the inheritance by right of representation, but would have divided it among themselves, being in the same degree of kinship with respect to the represented person - Alexei and with respect to the deceased patrimonial Peter. But of them, only Alexander is alive, and Kondraty and Nikolai died, leaving offspring behind them. It is with this offspring (but not with his son Karp, whose path is blocked) that Alexander must enter into competition and division. This division will generally be generational, and in particular, universal. Generational, because living persons claiming to inherit are all in varying degrees of kinship with the deceased patrimonial owner, but, representing their parents and grandfathers, they enter into their degree, and only at one of the highest degrees are they reduced to the unity of that person who, even without representation, could directly inherit the deceased. So, here the rights of all applicants are reduced to the right of Petrov's uncle Alexei. In particular, it will be necessary to split up the hereditary shares individually, when in further degrees the sons will divide among themselves an equal share of their parent, whom they represent. So, Alexander will get a third of the inheritance, the other third - to the offspring of Kondraty and the third third - to the offspring of Nicholas. Kondraty has two sons - Matvey and Anton, and a daughter Olga; her, with living brothers or with their offspring, it’s the same as if she doesn’t exist; she will not get anything (Art. 1135). Matvey will share the share of his father Kondraty with the offspring of his brother Anton, who previously died. The division is again generational. Matvey will receive half of Kondratyev’s share, and the other half will be divided among themselves by the sons of Antonov, Frol and Konstantin. The last third of Petrov's inheritance will go to Nicholas's descendants. He had a daughter, Marya. Since she has neither living brothers nor their offspring with her; then she could represent her father Nikolai, but since she is not there, her two daughters, Sophia and Vera, represent her and receive a third share of Petrov’s inheritance, although they bear someone else’s surname from their father, and not Petrov’s. But according to their mother, they belong to the family of Peter and, not having brothers and their offspring, can represent their mother. They share their mother’s share and their grandfather Nikolai’s share among themselves without exception. On the issue of the right of women to inherit in lateral lines under men, disputes still continue, although this issue seems to be undoubtedly resolved by Art. 1135. Citizen Laws (see the controversy on this issue in the Journal of the Ministry of Justice of 1865 N 12 and 1866, vol. I, p. 267 and vol. II, pp. 47 and 53, and the argument in the decision of the Moscow District Court in the Shcherbinin case. Legal Vestn. 1869, N 2; 1872, N 4. There are also court decisions that allow nieces with nephews to participate in the inheritance, as if by representation. For example, decision 7 D. April 29, 1870, according to Sogbatov. It is objected that Art. 1135 does not mean the sisters of the heir, but the sisters of the deceased patrimonial owner - the interpretation is obviously unfounded. The article, in its literal meaning, means to determine who is with whom, i.e. in a competition with someone, not the heir, and, moreover, in general on the side line, and not just on the first side line. Rule 1135 art. It is fully consistent with the general decree of Article 1126 that women enjoy the right of representation when they, due to a lack of men, are called to inheritance; It also agrees with the historical course of our legislation, which has never recognized a woman’s independent right to inheritance under a man (cf. what was said above about the inheritance right of a granddaughter). Refer to Art. 4. Chapter XVII Code, which says: “And whoever has no sons left, give ancestral and serviceable estates to their daughters, and those who have daughters will have children, and those estates to their children and grandchildren, after their grandfathers and grandmothers of their relatives and with uncles and aunts of their relatives in the ancient and serviceable estates, they will be estates.” Against this reference, we note that from it, even less than from others, it is possible to derive the seemingly fundamental right of nieces of their own brothers to inherit jointly with their uncles or aunts. It is impossible to recognize a clear common principle in what was dominated in the era of the Code by a complete confusion of concepts - namely, in the right of representation. Practice wandered on all issues in which it was necessary to judge by the right of representation. Firstly, the article itself does not say a word about nieces or daughters’ daughters, but simply talks about children, therefore, it is still possible to doubt whether this word means daughters, when in general sisters and brothers had no share in the inheritance. Secondly, if by the word children we mean only sons (and even more so daughters), then the rule of the article in its entirety presents a strange contradiction, which reveals to us how vague the concepts of that time were about representation and how dangerous it is to deduce a general principle from an order sentence in a private case, which served as the basis for an entire article. Namely: in the first half of the article it is said beyond any doubt: to give estates to daughters when there are no sons left; otherwise, the sister is not the heir to her brother. And from the second half there follows a clear, in our understanding, violation of this rule, for where the son remains, the daughter’s offspring are given joint participation with the son (i.e., nephew, daughter’s son and uncle) in the inheritance, therefore, the offspring representing the deceased are given more rights in the inheritance than she herself would have had when she was alive. It is clear that either we do not understand what the article wants to express, or the practice of the order in this article wandered in the dark, as happened at that time and after, when, for example, out of ignorance about the right of representation, a man from a female tribe was given a right that his mother would not have had, simply because he is a man, regardless of the degree to which his right is equalized with the right of another heir. Finally, whatever the said article meant, its rule disappeared irrevocably following the decree of August 10. 1677, which decisively recognized the superiority of men over women in all lateral lines without exception. Our law still stands on this initial rule, only it was clearly clarified with the establishment of the concept of the right of representation and the rule of Art. 1126. Defenders of the opposite opinion are confused, as has been noted, by the concepts of inheritance right by representation. It seems to them that when inheriting by right of representation, those represented should be considered heirs, i.e. before the deceased, and that their right is transferred to the descendants who already represent them is an incorrect concept: the inheritance passes directly from the deceased, and those who are personally called to inherit are considered heirs, even if only by right of representation. The division of hereditary estate in lateral lines is made more difficult and complicated by the following rule. Every immovable property of its owner belongs to one of two categories: either it is his family property, or it is acquired. In the event of a childless death of the owner, when the inheritance should go to the lateral line, one must certainly take into account the nature of each individual estate: whether it was ancestral to the deceased patrimonial owner or acquired. Let us first take the first case: the estate was a family estate. A family estate certainly has its own history. It went to the deceased patrimonial owner by inheritance, or by deed, only from his own family. In one case or another, his relatives who owned this estate before him belonged either to the family of his father or to the family of his mother, or the estate came directly to him from his father or from his mother. The question arises: if there are contenders for the inheritance of such a patrimonial estate in both clans: in the father’s clan and in the mother’s clan, on what basis should the property be distributed between them? The law answers: in the lateral lines, family estates pass - paternal always to the father's clan, maternal to the mother's clan. It is necessary to know where the family estate came from and through which births it passed. The paternal family estate is that which is inherited from the father; maternal - from the mother. Any individual estate, if it has been inherited by several generations, has its own hereditary history, which can be traced through the families from which it went to the last owner. For example: Ivan Ivanov dies, leaving two estates: Koptevo and Fedorovskoye. Koptevo came to him from his father Ivanov, to his father from his mother from the Alekseev family, and to her from her maternal uncle Vasilyev. Fedorovskoye came to him from his maternal aunt from the Afanasyev family, and she inherited it from her cousin’s brother from the Petrov family. Thus, Koptevo, before it reached Ivan Ivanov, was in two families - Alekseev and Vasilyev; and Fedorovskoe in two genera - Afanasyev and Petrov. The question arises: how should we interpret the rule that the paternal estate goes to the father’s family, and the maternal estate goes to the mother’s family? At first glance, it seems that the application of this rule is simple: everything that is inherited from the father, without distinction of further origin (the patrilineal family according to the letter of the law), will go to the one who is closer in line and in degree to the father who died in the clan. But historical custom and judicial practice have long given this rule a different interpretation, one that penetrates deeper into the essence of the generic properties of estates. According to this interpretation, in determining the inheritance right to a family estate, not only the closeness of the family connection between persons is taken into account, but also the historical relationship of the estate with the surnames from which it came. Regardless of my father's (or mother's) lineage, it consists of lines adjacent to those ancestors from whom I received blood through my father (or through my mother). Regarding a known family estate, the paternal (or maternal) family, where it should go, consists of lines adjacent to those ancestors behind whom the estate belonged and from whom it passed in the hereditary circulation. So, when an estate goes to the family of the father or mother, if it does not find an heir in the closest lines to the last successor and owner, and must go to further lines, it follows the line from which it came. In the first lateral line, the resolution of the issue is simple: full-blooded brothers and sisters inherit the family estate indifferently, because they belong equally to the clan of the father and the clan of the mother. Paternal brothers receive paternal ancestry, maternal brothers receive maternal ancestry. When it comes to the second side line and the heirs are in it, the difficulty is also eliminated. Paternal or maternal cousins ​​are always in only one line (descendants of my uncle, my aunt on my father's or mother's side). So, no matter from whom the family estate came to my father - from his father or from his mother, no one from further away can enter into competition with the descendants of my own uncle on this estate, because my uncle is the son of the same parents from whom my father came. Cousins ​​positively exclude further lines from inheritance, even if it has been proven that the estate received by the deceased patrimonial holder from his father comes from the family of his (paternal) mother, for cousins, in any case, adjoining the same clan, turn out to be close both in estate and in blood to the deceased patrimonial holder. But already in second cousins, conflicts of inheritance rights are possible between the lines from which the paternal or maternal estate came, so that a further degree adjacent to the estate by its origin can remove, in relation to this estate, the nearest degrees, and the closest line must give way to the further one from which the estate came. In this sense, Art. 1138 applies. Zach. Gr. The ancestral property returns to the clan from which it came. The Code and subsequent decrees, on which Article 1138 is based, serve as confirmation of the basic rule that the estates of a childless patrimonial owner must go to the clan whose ancient family they were. The decree of April 1, 1763, by the way, says: “the estates given to daughters and grandchildren who are no longer childless should not be given to the relatives of those daughters and grandchildren, but to be given to them, according to the Code, and given to the clan of that family whose estates were ancient, ancestral and well-served; therefore, such fiefs, given from other people’s clans, not only to daughters and grandchildren, but if further down the descending line they were converted into a hereditary line, after cutting off that line, they are not of the same clan, and that except for the own descendants of the tribe from which they, or anyone else, cannot inherit, by that decree they are certainly subject to return to the clan whose they were.” With the exact application of this rule, the mother's family estate can no longer go to the father's clan, and if there are no heirs in the mother's clan, it becomes escheat. For clarification, here are the following examples: A. The inheritance opens after the childless Ivan Petrov. He still had his mother's family estate, the village of Zarazy, which his mother Anna inherited from her maternal aunt, Fekla, from the Sergeev family. The claimants to this estate are: the deceased’s maternal cousin, Alexey Fedorov, and second cousin Fedor Sidorov, the nephew of the same Fekla Sergeeva, from whom the estate came. But in this case, Fedor Sidorov does not have any advantage, in terms of the origin of the estate, over Alexei Fedorov, for this latter, through his grandmother Marya, also belongs to the Sergeev family, from which the estate came, and could himself inherit after Fekla Sergeeva; therefore, he, being in the same conditions with Fyodor Sidorov in terms of the origin of the estate, has an advantage over him by blood, for, as a cousin of the deceased patrimonial owner, he is in the line closest to him. B. After the prince died without children. Nikolai Kasatkin-Rostovsky was left, by the way, with a family estate that came to him from his mother, Anna, née Durova. To this estate, the second cousins ​​of the deceased, the Pozhogin-Otroshkevich brothers, declared themselves heirs from the mother’s family, for whom the estate was approved, because there were no heirs in the immediate line. But then another claimant, Nikolai Durov, the deceased’s cousin, came to the same estate, through his maternal grandmother, who belonged to the Durov family. He argued that the very villages and hamlets that made up the disputed maternal estate of the deceased reached the mother of his prince. Anna from the Durov family, to whom they belonged in the 18th and late 17th centuries, which was confirmed by documents. On this basis, the Senate, having made sure that the disputed estate was not in the Pozhogin family by right of ownership, but always consisted of a family in the Durov family and from this family came to Princess Anna Kasatkina, recognized Nikolai Durov as the only heir to this estate, without the participation of the Pozhogins. V. The estate was left after the childless Marya Kiseleva. She has no heirs in the first side line. Not in the second line either. In the third line there are descendants of the patrimonial great-grandfather (through his mother) Yakov Neelov: there is a great-granddaughter of this last prince. Dolgorukova, who is in the 6th degree of kinship with the deceased patrimonial landlady. There are also in the fourth line descendants of the deceased’s great-great-grandfather (through her father), Ivan Kiselyov, descended from his granddaughter Martha, by her husband Chemesova, two daughters of that Martha: Alexandra Chemesova, Marfa Vigel, and the third daughter’s son Nikolai Zhedrinsky (in the 7th degree of relationship). Then there are in the sixth lateral line the descendants of Marya Kiseleva’s great-great-great-grandfather, her great-grandmother’s great-grandfather, Yakov Ostankov, and his great-grandsons Matvey and Alexey Ostankov (in the 9th degree of relationship). All these persons belong to the paternal family of the deceased Kiseleva; her paternal estate, and whenever the origin of this family estate differed, from among all these persons one prince should inherit. Dolgoruky, since she is in the closest line. But the hereditary paternal estate of the deceased passed to her father, grandfather and grandmother from different clans, among other things, from the Ostankov clan and from the Neyolov clan, and each must return to its own clan. It is the villages and hamlets that came from the Neelov clan, and from that time on have continuously been clans, that will go to Dolgorukaya, those that came from the Ostankovsky clan will go to the Ostankovs, although they are also in a distant lateral line, compared to Dolgorukaya and the Chemesovs (Cf. Mn. State Council on the Kiseleva case in the Journal of the Min. Justice. June 1861) G. Feofilatiev bequeathed the good. the estate to his wife so that after her it would pass to their grandchildren, the children of their daughter, Prince. Kugushev. Feofilatieva, having accepted the estate, died, and after her it was approved for her grandchildren, the Kugushevs. Upon their death, the rights of inheritance from the Troyurs were claimed to this estate. their brothers are the Kugushevs. They were denied because the estate came from the patrimonial family of the mother, and the petitioners belonged to the paternal family. The complaint was brought about the incorrect application of Article 1138 in this decision. I part X t. The petitioners argued that the article speaks exclusively about estates (paternal ancestral), which were already ancestral to the father or mother, and in the case the estate became ancestral only when it passed to the deceased patrimonial owners themselves, the Kugushevs. The Senate rejected this interpretation (Cass. decision 1872 N 1288), reasoning as follows: in 1138 art. the estate acquired by the childless owner himself is contrasted with the estate he received from his parents, and therefore on the basis. 399 art. Gr. Zach. it should be recognized that all the estates that came to the deceased patrimonial owner from his parents, even if they were acquired from the latter, follow in the further transfer the order specified in Art. 1138. 1890 Feb. 20 N 61. In the case of Kokoreva and Voronets on the issue of the procedure for the transfer of family estates by inheritance in lateral lines, Civil. Cass. Dept. admitted that what was used in Art. 1138 1 part X t. the expression - family estates pass: “the paternal estate to the father’s family, the mother’s to the mother’s family” - cannot be interpreted in the sense that the estate received by the deceased from his father must certainly pass to the father’s relatives, regardless of how the estate passed to the father of the deceased and from which of the previous owners it became a family estate. With such an interpretation, the family estate, inherited by the father of the deceased from his grandmother, from whom it was already ancestral, should have been transferred to the relatives of the grandfather, as belonging to the father’s clan, and not to the relatives of the grandmother, and the family estate would have been inherited not by the clan from which it came, but by the clan that never owned it. Meanwhile, the law means, when inheriting a family estate, to preserve it in the clan from which it was received, and that therefore the right of lateral relatives to inherit in a family estate is determined not only by blood relationship with the father or mother of the deceased, but also by their belonging to the clan from which the estate was received, i.e. the common origin of the deceased and seeking an inheritance from the ancestor from whom the family estate that constitutes the subject of the inheritance was inherited. according to the Lithuanian statute (Chernig. and Polt. provinces), after a childless owner, the maternal estate is divided equally between his brothers and sisters, and if there are no them, no offspring from them, then it goes according to the rule of Art. 1137. further into the mother’s clan, into further lateral lines (Law. Civil. 1139 art.). This is the rule of Art. 1139. serves as a local exception to the general order specified in Art. 1135, by virtue of which sisters do not inherit from brothers in the collateral line; sisters inherit on maternal estates (deceased patrimonial estates) equally with brothers. The question is: does this exception also extend to those cases in which, after the death of a brother, in the absence of living sisters, the inheritance passes, by right of representation, to the offspring of these latter, consisting of brothers and sisters? Do sisters inherit equally with brothers, i.e. nieces of a deceased patrimonial lord on a par with nephews? Some answer: they will inherit, because if the equation of sisters is allowed in one degree, then there is no reason not to allow it in another, with the right of representation; Moreover, they refer to paragraphs 5 and 6 of Article 1133, which allow for the complete division of the mother’s estate between sons and daughters. Others, relying on the literal expressions of Article 1139, allow an exception only for the brothers and sisters of a deceased patrimonial owner, since the article, while remembering those descending from brothers and sisters, does not add the same exception for them. But it seems fair to apply a broader interpretation of the law to this case. In rule 1139 art. the law deviates from the general principle - to prefer brothers to sisters and allows, based on the property of the estate, and not the closeness of kinship, the beginning of the equation of woman with man. Therefore, there is no reason not to extend this exception to the offspring of the brothers and sisters of the deceased patrimonial owner, representing their parents. This question arose in the case of inheritance after Prince. Prozorovsky, in the rights of the descendants of two sisters of the deceased patrimonial landowner - Frolova-Bagreeva and Kantsevicheva. The Senate (in the 2nd department 3 D. October 21, 1869) decided that the exception established in Art. 1139 for the brothers and sisters of a deceased patrimonial owner, extends to their offspring and loses force, yielding to the general rule only when the inheritance, in the absence of relatives, goes down the line to cousins. The practice of the Cassation Department adheres to the same view. Senate; see, for example, solve. 1879 N 264; 1882 N 49. In applying the rules on the inheritance of family estate, brothers (and sisters) from one father, but from another mother (half-blooded) and from one mother, but from another father, should be equalized with full brothers and sisters regarding the estate that belonged to a common parent. There is not the slightest reason (when the law has not directly established it) to prefer in this case full-born to half-brothers and sisters, for my half-brothers on my father’s side without any doubt belong to the father’s family, and my half-brothers on my mother’s side belong to the mother’s family, therefore, they are completely in the conditions required by law. Accordingly, in cassation decisions of 1874, No. 738 and 804 and 1876, No. 102 and 214, the Senate reasoned that the closeness of kinship is determined by descent from a common ancestor, therefore full and half-brothers have the same right to inherit in paternal paternal property; if there are a shortage of such brothers and their descendants, full and half-blooded sisters will inherit, and when they are not there, then uncles and aunts on the paternal side. Ancestral maternal inheritance passes to full brothers and, equally with them, to half-brothers; if there are no such brothers or their offspring, full and half-sisters will inherit, followed by uncles and aunts on the mother’s side, etc. Thus, in paternal paternal property, half-brothers do not have the right to inherit, and in maternal property, half-blooded ones do not have the right to inherit. The advantage of full relatives over half-relatives is recognized by law, as we will see below, only in relation to acquired property (see about this decision. Civil. Cass. Department. 1868, No. 25. There were also decisions of the Senate that were contrary to this, but they were canceled when they reached the consideration of the highest audit authority. See decision. 4 Department. Senate Oct. 16, 1869 in the case of the Vysheslavtsevs, hearing in the General Meeting, September 13, 1874. Regarding the estate acquired by a deceased patrimonial owner, a question could be asked: should it be divided into a division between the lines of the paternal and maternal clans or should it be converted exclusively into one or the other clan? In 1823, this issue was finally resolved; it was decided that the acquired estate should be considered escheat when from the family to which the deceased belonged on his father’s side, there is no longer a single person left, both in direct descending and in collateral lines. This rule is expressed in the Code of Laws in the following words (Article 1138 of the Civil Code): “An estate acquired by the childless owner himself, when no special orders are made about it, goes to the father’s family.” Meanwhile, in litigation about inheritance in the acquired estate, doubts arose on other issues that required determination. One question was this: with full brothers (or sisters) who have both parents in common with the deceased, do half-brothers and sisters descended from the same father as the deceased, but from a different mother (half-blooded) have the right to participate in the division of the acquired estate? Arguing about this in the Burtsev case, the Senate, in 1817 (P.S.Z. N 26867), recognized that, according to the Code, the estates of the deceased should be given first of all to his brothers, and children born from the same father, but from different mothers, are considered among themselves nothing other than relatives, since they are of the same kind. In essence, this decision of the Senate is important because it recognizes brothers who have only one common parent as siblings. But this concept of the kinship between full brothers and half brothers had not yet been fully formed, as it later turned out. In 1818, a question arose in the Senate: who should be considered the closest heir to the acquired estate after the death of the childless acquirer: a half-brother of the same mother, but of a different father, or a paternal cousin. Should a paternal cousin, being in the second collateral line of kinship with the deceased, have an advantage over his half-brother, who is in the closest line and degree of kinship, simply because the cousin belongs to the father’s family, and the half-brother does not belong to it? The General Meeting of the Senate, having in mind previous decisions on similar cases, decided that the half-brother of the deceased is closer to him than his paternal cousin, therefore, the half-brother should receive the acquired estate of the deceased, which has no connection with the father’s family. To consider this opinion in a legislative manner, the case was submitted to the State Council, where the issue itself was expanded beyond the limits in which it originally arose and was considered in the Senate. The reason for this spread was the Law Drafting Commission, which, regarding this issue, submitted to the State Council, consisting of 9 articles, “a draft preliminary law on the mutual inheritance of acquired property in the lateral lines after brothers and sisters who died childless and intestate from the same father, but from different mothers, and from different fathers, but born from the same mother.” This project is remarkable in that for the first time it uses terminology in which a hitherto unknown and completely inconsistent with the original concepts of kinship distinction is accepted between siblings, on the one hand, and half-brothers (from one father, but a different mother) and half-brothers (from the same mother, but a different father), on the other hand, the former have a priority right to inherit after their sibling, regardless of even the family origin of the hereditary estates. In the first articles of this project, the Commission determined the rules of inheritance in contrast to cousins ​​and half-cousins, giving preference to the latter, but allowed the right to inheritance for half-uterines only in the case when the deceased left no brothers and sisters and their offspring. In this form, the question did not diverge from the concept of the paternal family’s right to inheritance in the acquired estate, for in the absence of the deceased’s paternal brothers, the competition had to be resolved only between uterine and cousins. But in the last article of the draft, the Commission, having mentioned half-brothers, placed them in the same conditions as half-brothers by inheritance in the acquired estate; This is why the wrong direction was given to the question. It was in this article that it was said: the same rules are observed in the reasoning of half-blooded brothers or sisters (born from the same father, but from different mothers), so that if it happened that after a childless deceased there were half-blooded and half-uterine brothers or sisters left (in the absence of siblings, in the new sense of the term: relatives), then all his acquired property is divided between them according to this decree without any distinction - whether they are half-blooded or half-brothers. From this it followed that half-brothers, although they undoubtedly belong to the family of the father, do not enter into competition with his full brothers, who have common parents with him, based on the acquired estate of the deceased brother, do not even enter into competition with full sisters and their offspring, but inherit only in the absence of full brothers and sisters - and in this case they inherit on the same right as their half-brothers. This rule was based on the assumption, although not directly expressed, but clearly resulting from the wording of the law, that, regardless of blood ties and the proximity of degrees and lines, the closeness of kinship between brothers and the corresponding inheritance right also depend on their common connection with both parents and that only full brothers can be recognized as siblings - an assumption that is completely inconsistent with the fundamental concept of kinship between father and son and contradicts the very meaning of the word: kin, which indicates kin and for birth - from a famous person. This assumption was expressed, however, unfortunately, in the wording adopted by the legislature (November 1818, 25 P.S.Z. N 27579) and included in Art. 1140. Zach. Citizen “Half-brothers and half-brothers, in the inheritance of acquired property after the owner who died childless and without a will and did not have siblings or their offspring, are preferred to his other relatives. Such inheritance comes to them in the same order, both from male and female acquirers, and since half-brothers are recognized in this case as having equal rights to the inheritance, then where there are heirs of both, the estate is divided between them, on a legal basis, as if between siblings. When there are no half-brothers left, the right defined in this article passes in the same force to half-sisters and half-sisters with their offspring.” – This is the rule of Art. 1140. It should, however, be noted that this rule, with all the assumptions and conclusions hidden in it, is in all fairness and force of Art. 65 and 70. The Basic Law applies exclusively to those cases for which it took place, i.e. to the brothers' inheritance in the acquired estate. Only in these cases will there be a legal basis to apply the title of relatives only to full brothers and to prefer them and similar sisters, in inheritance after the father, to half-brothers; and in all other cases, without a doubt, one should be guided by the general provisions expressed in the Civil Laws (1112–1120) regarding kinship and the rights arising from it. In this sense he interpreted Art. 1140. and the Governing Senate (cf. Cass. decision 1868, N 25; 1874, N 739), and in 1877, by the opinion of the State Council in the Loubier case, for guidance in practice, it was decided that Art. 1140, as an exception to the general principles on the order of inheritance (Art. 1134–1138), should be applied to those only cases where the acquired estate of a childless owner will be entitled to rights by his half-blooded and half-sisters, if the deceased does not have any siblings (i.e. full-born), and therefore the rules contained in it cannot be extended to cases not directly provided for in it (1140, note). Wed. Cass. decide 1881, N 30. From the above, the following provision for collateral inheritance is extracted. In family property, according to the proximity of lines and degrees, members of the clan to which it belongs inherit. Therefore, half-blooded (paternal) brothers have the same right to patrilineal ancestry as full-blooded brothers and exclude full-blooded sisters with their offspring. On the contrary, half-brothers do not have a share in the ancestral maternal estate and half-brothers do not have a share in the ancestral paternal estate of the deceased. In acquired property, first of all, the full brothers of the deceased will inherit, then his full sisters; when there are neither one nor the other, nor offspring from them, half-brothers inherit alone, or together with half-brothers, if there are any; finally - half-sisters and half-uterine sisters. Rule 1140 Art. constantly puzzled judicial practice by distorting the general principles of inheritance that exist for other cases, and was applied to cases in a variety of ways. For example, let's point to Cass. decide 1872, No. 1188 in the case of Gerakova, in which the competition was favorable. the estate arose between the full sisters of the deceased and the offspring of his half-brothers. According to the derived meaning of Art. 1140. it would be necessary to admit that in this case the sisters, in deviation from the general principles of our legislation, exclude the brothers. But the Senate gave a different interpretation of the article, consistent with the general principles, but not in agreement with the special meaning of Art. 1140. According to the reasoning of the Senate, “the literal meaning of Art. 1140. does not at all express the rule that the siblings of the deceased exclude half- and half-brothers and sisters; it does not say that half-blooded and half-brothers are called to inheritance only when there are no brothers and sisters. This article does not in any way concern the relationship of the inheritance rights of siblings to the rights of half-brothers and half-brothers; On the contrary (?), she means a case where there are no brothers and sisters at all, but only half-brothers and half-sisters remain, and this is the only case that determines the advantage of these latter over other lateral relatives of more distant lines. From this it follows that 1140 Art. does not resolve the question of what to do when the childless owner of the acquired property left not only half-blooded and half-brothers, but also siblings.” On the contrary, from the previous presentation it is clear that rule 1140 art. embraces this case, and its literal presentation shows that the section it establishes is favorable. estates between half-blooded and half-brothers occur when there are no brothers and sisters or their offspring. A. Regardless of the case specified in Art. 1140. Zach. Citizen, our law does not give a general preference in inheritance rights to full-blooded descent over half-blooded, and there is not a single general article of law on which such a preference would be asserted. Logically, only the following conclusion can be deduced from our law. The family estate goes - the father's to the father's family, the mother's to the mother's family. Full relatives (descended from the same couple) belong to the father's clan in exactly the same way as half-blooded ones (i.e., those who have only a common father). Full relatives belong to the mother's clan equally with their half-brothers, therefore, both have equal rights to the family estate from the clan to which they equally belong. What is acquired goes to the father’s family: the exception mentioned in it applies to this only case, within the meaning of Article 1140. There is even less reason to justify in further collateral lines any preference for some relatives over others who are equally and belong to the same family, simply because the first descend from the same grandfather and grandmother, great-grandfather and great-grandmother, etc. There are, however, decisions made in this sense. As an example of such an unfounded judgment, one can point to the following motives for one decision. The court reasons as follows: “According to Art. 1137. Zach. Citizen Brothers have the closest right to inheritance in the collateral lines, and if there is a lack of these, sisters, but this article does not indicate exactly which brothers it means - whether only blood, or both half-blooded and half-brothers, but from the articles that follow it it is clear that it meant full brothers, for if we meant all of them in it, i.e. both half-uterine and half-blooded, then this article would contradict Art. 1138, according to the meaning of which half-brothers cannot inherit from the family estate, if Art. 1137 excluded only half-brothers, then it would certainly have expressed that in the lateral lines, first of all, brothers and half-brothers inherit; by not doing this, the article of the law obviously had in mind only siblings. This is confirmed by the content of Art. 1140, according to which half- and half-brothers, in the absence of siblings of the testator, are preferred to his other relatives; This means that on family estates they are not preferred to these other relatives (for example, uncles), and therefore, even less can they be preferred to siblings. Moreover, in 1118 Art. 1 part X t. it is said that the proximity of the lateral lines is determined by their origin from a common ancestor; the closest collateral lines are those that come from the father and mother, followed by those that come from the grandfather and grandmother, etc. From this article it is positively clear that when determining the proximity of lateral lines, it is necessary to be guided by the origin of individuals not only from the same father, but also from the same mother. For these reasons, in view of the sisters of the deceased patrimonial owner and their descendant heirs, his half-brother has no right to the family estate of the deceased.” Without dwelling on a detailed analysis of this decision, which consists entirely of incorrect application of the articles, I will only point out the extremely inappropriate application of Art. 1118. This article is one of the descriptive ones placed in the Code of Laws during its first edition, to clarify, in the general system, the genealogical principles. Both in the place that this article occupies, and in its literal meaning, it only means (together with the corresponding 204-208 art.) to indicate the difference between the lateral lines, the first, the second, etc., descending from the nearest or further ancestor, i.e. from father, grandfather, two or more grandfathers (on the one hand) and from mother, grandmother, two or more grandmothers (on the other hand). It does not contain the slightest indication that descent from one common couple gives in any way more rights than descent from one common parent, and establishes the closest kinship relationship in the legal sense. On the contrary, having in mind one clan, by origin from one person, this article cannot have in mind the completely special idea that joint membership in two clans, to which the deceased patrimonial adjoined by origin, gives an advantage in kinship with him and in inheritance after him. Such an idea is completely alien to our law and is not expressed anywhere in it. As an example of the unjustified application of the same 1118 Art. Let us also point out the decision in the following case. After Francois Loubier, the following were claimed for his father's family estate: the descendants of his own aunt Rose (born from the same couple with the father of the deceased Francois, Pierre), Dutel and Barrault, and his own aunt Janeta (born from the same father with Pierre, but from a different mother), and the son of another such aunt, Julia, Jacob Duval. The court, citing the same Article 1118, recognized only Rosa Janisch as the natural aunt of the deceased, and recognized Zhaneta and Julia as half-aunts (while the law does not at all distinguish half-aunts or half-aunts from relatives), and granted the estate to the descendants of the so-called natural aunt exclusively. The State Court subsequently made a decision in this case. Council, which corrected the misinterpretation of the articles. It was published in Collections. Uz. 1877 N 314. B. After Semyon Zaborovsky there was an estate left: 1. Kostromskoe, which he inherited from his mother, and she from the Nelidov family. 2. Yaroslavskoe from great-grandmother Elizaveta, from the Musin-Pushkin family, and from grandfather Evgraf Nelidov. 3. Tverskoe from the paternal family and from the maternal grandfather, Karzhavin. From among the applicants indicated in the drawing, the following were awarded: the Kostroma estate from the Nelidov family - to Tatyana Nelidova, as the closest in line, and Pavel, Flegont and Alexander Nelidov were denied, and the Yaroslavl and Tverskoe estate, from the Pushkin family - to Claudia Shubinskaya (see Collection. Sen. decision II. N 598). V. After Nadezhda Modzalevskaya, the estate was divided by her sister Vera and, on behalf of another sister Sophia, the latter’s grandchildren Evgraf and Mikhail Kondratyev. Their sister Nastasya Ilyina filed a claim against the latter for the division of the same inheritance, proving that she, together with them, represents their common mother Sosipatra and grandmother Sophia. 8 Dept. The Senate, discussing this case, found that in this case the right of inheritance is determined not by the kinship relationship that exists between the children of Sosipatra Kondratieva and their grandmother Sofia Kovalevskaya, but by the relationship between the applicants for the inheritance and the person after whom this inheritance was opened, i.e. their great-aunt – Modzalevskaya. According to the exact meaning of Articles 198, 199 and 938. X t. St. Zak. Gr. ed. 1842, the Kondratiev brothers and their sister Ilyina are in a collateral line in relation to Modzalevskaya, and the inheritance that opened after Modzalevskaya should pass along this same line. From this it follows that Ilyina’s rights are exclusively determined by those set out in Section III, Section. II, book. III Zak. Gr. rules on inheritance in the lateral line; but rule 949 art. of these laws, relating to the order of inheritance in the descending line, cannot have application to the present case, in which Art. 954 must be adopted on the basis. Zach. Gr., stipulating that in the collateral lines sisters with siblings and their descendants do not have the right to inheritance. Therefore, although with inheritance in the lateral line, just as in the descending line, different degrees share the inheritance without exception, and their descendants enter into the degree of the deceased and inherit by right of representation, this right of representation is limited only to sons, with the exception of daughters, if they have brothers. G. In the case of the Pluskovs (Sb. Sen. decision N 735), it was recognized that those who claimed the right to inheritance after Ivan Pluskov - Naumov for their children, Alexander Pluskov, Tournai and Kostrov, descend from Alexei and Dmitry Pluskov, who are patrimonial Ivan Pluskov, by descent from Yakov Alekseev Pluskov, half-brothers, Alexander Yakovlev Pluskov, Descending from the same father and mother as Ivan Pluskov, he has a sister. Therefore, it was decided to approve the estate that came to Ivan Pluskov by inheritance from his father to the descendants of his half-brothers, and to give the maternal and acquired property to the girl Alexandra Pluskova. For the village of Zhilenkov, the Senate (General Meeting of Moscow, April 28, 1867) decided to give the benefit. the estate of the deceased to the son of his sister, preferably to the children of his half-brother. D. In the Baikov case (Sb. Sen. decision vol. I. N 73) the Senate recognized that before the publication of Mn. State S. 1818, on which Article 1140 is based. Zach. Gr., in the laws of previous times it is not clear that between brothers born of the same father and mother and those born of the same father and another mother, there was a difference in the rights of inheritance. Therefore, the acquired estate of the deceased Baikov should be divided between his two full brothers and two nephews, the sons of a brother born from the same father as the deceased, but from a different mother. On the exclusion of half-brothers (on the same father) from inheritance in the ancestral maternal estate of the deceased, see Sat. Sep. decide Vol. I. N 100. On this subject, see also the decisions in the Anuchina case, Zhurn. Min. Just. 1860, No. 6, p. 432. In the case of Yukin, Zh. M. Yu. 1861, No. 3. In the case of Iskra decide. General Collection and Mn. State S. 1850. In the case of the Nesterovsky Sat. Sep. decide Vol. II, No. 343. Legal. Vest. 1871, No. 4, Demidova village, in the same place No. 9, art. Snegireva. On the preference of full siblings over half-siblings, see also decision. 1 department 3 Dep. Sep. Oct 2 1868 in the Krupsky case. In the provinces of Chernigov and Poltava, when the deceased left the estate inherited from his mother, it is divided equally by all siblings; when there are no brothers and sisters or their offspring, then maternal uncles or aunts with their offspring will inherit, etc. § 41. Inheritance of parents. – Inheritance of spouses. – Selection of the indicated part. – Special advantages for the widowed spouse upon separation. - Allocation from the estate of the father-in-law and father-in-law. – The property of the right to claim for allotment and the transfer of this right to the heirs. – Differences in Chernigov and Poltava provinces. – Special regulations for various departments (Articles 1141–1147) Parents are generally not heirs after their children when the children die, leaving offspring. When children die childless, the inheritance passes to the lateral line, and the parents do not have a joint participation with the direct heirs in the division of the estate. Our law, in its historical formation, did not recognize the right of inheritance for parents, which, according to the Law Drafting Commission, given in 1823, does not correspond to the present time 58. However, despite the desire of transformative minds to harmonize our legislation with foreign ones on this subject, this has not yet been done. Only in 1823 (June 14. P.S.Z. N 29511) the Highest approval took place. the opinion of the State Council, which granted parents in some cases the exclusive right to some of the children's estates. On ancestral estates that came to children from other relatives, and not from parents, the parents in no case have the right of inheritance after the children: these estates apply to the parents only in the case when the estate left after childless children came to them from living parents in the form of a gift; This estate returns after the children, not in the form of an inheritance, but as a gift, to the parent from whom it was received. The word “gift” here should mean not only a direct donation, but any concession to the children of the parental estate during the parents’ lifetime, at least in the form of an allotment or dowry (in the original Mn. State Council it is said: assigned to a son or daughter by the parents. Compare the decision of Kassats. 1867, No. 279). If, after childless children, there are estates left that they themselves acquired from other persons, and not from their parents, then such estates are given for lifelong ownership to the father and mother jointly, if both remain alive. These rules apply not only to immovable estates, but (as interpreted in 1827) also to the financial capital of children contributed to credit institutions. These capitals are given to the parents as property when there is a court certificate that they came to the children from the parents; otherwise, i.e. If there is no such certificate, parents only enjoy lifetime interest on this capital. For the Chernigov and Poltava provinces, it was decided that the estate received by children from their parents through the allocation of a dowry returns to the parents upon the death of the children and in such a case when the latter left the children, but these children died before they came of age; in the acquired property of childless children, the parental right of inheritance opens only when there are no heirs in the first lateral line (1143). Mn refers to this subject. State Sov. 22 Jan 1851 in the Osten-Sacken case, about the estate of Troshchinsky. A) In the Nikitina case, the Senate (Cass. decision 1869, No. 16), interpreting Art. 1141–1147. Zach. Gr., recognized that property donated to a son or daughter by one of the parents cannot, after the childless death of the owner, be given to the father or mother indifferently, but must go to the parent from whom it was given, as a gift. In support of this conclusion, it is assumed that marriage does not constitute common ownership of property. B) There may be confusion as to whether the return of property from children to parents, which is mentioned in Art. 1142, should be equated to inheritance. Zach. Gr. (see Journal of Gr. Law 1871, No. 1), since in Mn. State Sov. 1823, it is precisely expressed that it is returned not in the form of an inheritance, but as a gift? Should, for example, from such property, when returning it to the parents, a portion be allocated to the widow of the deceased? There is, of course, reason to recognize this transition as the return of the gift, but, on the other hand, one cannot help but take into account that what is meant by Mn. State Sov. took place on the issue of inheritance of parents and that in the system of the Code of Laws this rule is related not to a gift, but to the right of inheritance, but in the chapter on donation it is not placed at all. So, there is no direct reason to exclude this transition from the operation of inheritance law. In judicial practice, however, the right of parents to property returned to them as a gift is not recognized as the right of inheritance, therefore parents are exempt from responsibility for the debts of their children with their own property; they are liable only to the extent of what they received, since this property is not exempt from liability for the debts of the deceased (cf. Cass. decision 1875, No. 821; 1876, No. 274). B) In the Loubier case, decision 4 Dept. The Senate in 1868 recognized: 1. That a wife, even if divorced from her husband, is not deprived of the right to lifelong ownership of the estate of a childless son who died in marriage with that husband; 2. That the capital, although inherited from the father by that childless son who died, constitutes acquired property, within the meaning of Art. 1141. 1 h. x t., can be inherited by the mother of the deceased for lifelong ownership. The last conclusion is hardly based on the direct understanding of Art. 1141. and the Decree of 1823. In the sense of the law, of course, it is not an acquired property in the abstract, but an estate acquired by the children themselves, and in no way an estate inherited by the children from one of the parents. Law 1141 art. opposed, according to Art. 1142, is the right of parents to receive back the property that they transferred to their children during their lifetime as a gift. D) There are cases in which parents who have received maintenance from their children have the right, after the death of these children, to receive benefits for them from the Child Benefit Committee. honorable gr. officials. III volume. Const. penny. 601, 604. Art. 1148–1157, 1159–1161. A legal husband, after the death of his wife, and a wife, after the death of her husband, have the right to the seventh part of all the immovable property and the fourth part of the movable estate of the deceased spouse, which remained and was in his possession on the day of his death: from the acquired estate, which remained untested, for the will of the testator in this estate is free; from the ancestral one, which remains. Upon the death of the parents, the son, when dividing the family estate with brothers and sisters who were previously separated, has the right to demand equalization of shares and applies to the calculation of the general division what his brothers and sisters received from the hereditary estate during the life of the parent, for the right of all children is the common blood right of inheritance for them. On the contrary, the surviving spouse does not have the right to take into account to calculate his share everything that was allocated to the children during the life of the deceased spouse, for the husband by wife and the wife by husband are not heirs by birth and blood in the literal sense, but receive only, through a marital relationship, the specified share of subsistence. The allocation of the indicated part is made not only from the estate that the deceased spouse actually owned during his lifetime, but from that which would have gone to him after his father, if he had been alive when the inheritance was opened after his father. The widow is allocated from the estate of her father-in-law and the widower from the estate of her father-in-law; the law about this must be explained in a narrow sense, i.e. the right of allocation does not extend to the estate of the mother-in-law (as explained by the State Council in the Supreme approved opinion in the Strukov case on January 10, 1841; see Zh. M. Yu. 1861, No. 1) 59. This right of a widow and widower in itself is remarkably preferential; but it turns out to be even more favorable in that in some cases a widowed spouse can receive an allocation from the estate of his father-in-law or father-in-law during their lifetime, before the opening of an inheritance after them. Therefore, in this case, the husband of a son or daughter has, in relation to the parents of one or the other, more rights than that son and daughter themselves could have had during the lifetime of their parents. The son during the life of his father, according to the general rule of Art. 995 and 1004. Zach. A citizen does not have an open and enforceable right to his property and cannot demand an allocation, and his widow receives this right. Namely: if the deceased spouse had his own real estate, then the widowed spouse can ask for a proper allocation from the estates of his father-in-law or father-in-law only upon his death and upon the opening of his inheritance; Moreover, without a doubt, everything that the deceased spouse has already received as his share from the parent should be taken into account. But when the deceased spouse did not have his own immovable estate, but only movable property remained (about the widower it is said: when no property reached him either by row or by any other act), then the widower receives during the life of his father-in-law or father-in-law his specified part from that share of the latter’s immovable estate that would have followed (“should have,” in the true expression of the decree of 1731) the deceased spouse; This allocation is made from only the immovable estate that was actually in the possession of the father-in-law or father-in-law on the day of the death of the son or daughter. But the widowed spouse, during the life of one or the other, has no right to the movable property of his father-in-law or father-in-law: from this estate one can demand a proper allocation only upon the death of the father-in-law or father-in-law, and, moreover, only from that movable property that is available in cash on the day of the owner’s death. This right of a widowed spouse, already quite extensive, can be further expanded by a lengthy interpretation of Art. 1151. Civil Laws. On the day of the death of a son or daughter, the father-in-law or father-in-law may have both the ancestral and acquired estate. The question arises: from what estate can a widowed spouse claim an allocation for himself during the life of his father-in-law or father-in-law: from the family property only, or from the acquired one at the same time? The latest interpretation grants an excessively broad right to the indicated part, not entirely fair and clearly inconsistent with the general rule of inheritance and with the right of full ownership of the owner in acquired estates. In fact, it is impossible for the owner to understand the law, by virtue of which the widow of a deceased son can limit the free right of his disposal in the acquired estate from the day of his son’s death and present her participation in the benefits of the alienations made, even prohibit the alienations themselves until full settlement with her - whereas such a demand from the husband of that widow, the natural son of the owner of the estate, during the life of the father would be unthinkable, would be considered obvious lawlessness and even an insult parental authority. This is the reason why judicial practice in many cases decisively avoids interpreting the above law in a sense so broad and inconsistent with the general law of property, and recognizes the widowed spouse in this case as having the right to demand an allocation only from the family estate of his father-in-law or father-in-law. In this sense, the decision of the General Meeting of the Senate in the case of the widow Matskevich was made (Collected Sen. Resolution vol. I, No. 356), and this decision was given the significance of guidance in all such cases, in order to prevent confusion, for which purpose all Chambers of the Civil Court and courts of the 1st degree were made aware of it by decrees (cf. Cass. Resolutions 1868, No. 869 and 1884 g., N 23). In support of this opinion, very respectful considerations are given. It is explained that with a clear contradiction in the opposite interpretation of Art. 1151. with the indigenous right of the owner of acquired estates, an interpretation more consistent with this right must be adopted. If we allow, - it is said in the mentioned decision, - the allocation of specified parts from any immovable estate of a father-in-law or father-in-law, then the law giving the right to dispose of the acquired estate at discretion could not be implemented in its exact meaning, and the freedom granted by the law to dispose of the acquired estate is unlimited, would be constrained by the uniform, during the life of the owners, allocation of such part of the estate about which each of them could make order at will. In addition, in support of the same opinion, they point out (see Legal Bulletin of 1868, January, the decision on the village of Gruzdeva and Art. Vitsyna there), that although in 1731 it was ordered to give the daughter-in-law a specified part of the father-in-law’s immovable estates, without distinguishing between family and acquired ones, but at the same time this difference was not yet established in the legislation, and when it was finally established, then the mentioned expression of the decree 1731 must be explained in accordance with this difference. This evidence is among the weakest, but in support of this opinion they also point to the economic importance of the widow's part, which was expressed in the initial establishing decree and should be assumed in the restorative decree of 1731. By this last decree of Empress Anna, with the abolition of sole inheritance and its accessories, the order of inheritance according to the Code was restored, with its accessories, including the right of the daughter-in-law, defined initially by decree of 1676. This decree decreed: when the deceased did not have a special estate, but he served from his father’s estate or had only a small dacha, then his widow, so that she would have something to live on and feed herself, should be given a living allowance from her father-in-law’s estate in accordance with the salary of his deceased son. From this it is clear that when the decree was issued for the allocation, a certain norm was indicated in the local salary of the father-in-law and husband, in a certain share of economic capital that necessarily belonged to the service man, and from this share a part was assigned to the widow of the service man. All these considerations may be relevant and convincing for one who considers the law on the widow's share from a legislative point of view, with the aim of subjecting it to criticism, proving its injustice, its disagreement with the original idea of ​​​​the legislator and the need to correct and change it. But these considerations are inappropriate and unconvincing where the matter concerns the application of existing law in its true sense. In this regard, it is hardly possible to prove that Art. 1151. should relate to one family estate of the father-in-law or father-in-law, when this is not directly expressed in the article of the law itself. The law on the allocation of the widow's share, like all our decrees on inheritance, arose from local law and was designed for a local dacha. But after that, estates merged with estates in the general name of immovable estates, and the difference between the two was not restored with the repeal of Peter’s decrees on single inheritance and with the publication of the decree of 1731; consequently, the expression used in this decree: “from the in-laws’ immovable property” equally applies to estates and estates, to hereditary and to purchased and earned and acquired estates; In the same sense, of course, the words: immovable estate, used in Art. 1151, should also be understood. Zach. Gr. This interpretation alone can be considered involuntary and consistent; the opposite interpretation will certainly turn out to be arbitrary and inconsistent. It is arbitrary, because instead of the general category named in the law (immovable), it substitutes a particular category (family): a conclusion that is not at all justified by the words used in the law: “share: which would have followed her deceased husband,” for the hereditary (next) share is allocated both from the ancestral and from the free acquired estate. Inconsistent, because with this interpretation it will be difficult to decide whether an allocation should be made to the daughter-in-law when the father-in-law has no family estate at all, but only one acquired. If we refuse to give her allotment at all in this case, then it will be a clear disregard for the law, which positively allows for allotment from existing property; If in this case it is considered necessary to make a distinction from one acquired one, there will be a fundamental contradiction in the interpretation itself. So, according to the exact strength of 1151 art. the widowed spouse may, in this case, demand an allocation from the ancestral and acquired property of the father-in-law or father-in-law. This law is hardly fair, hardly agrees with the general properties of property, hardly corresponds to the current conditions of economic life, but in this sense it exists. Then there is still room for the question of the appurtenances and consequences of this extensive right granted to the daughter-in-law and son-in-law to the property of the father-in-law or father-in-law during their lifetime. The right of a widow or widower arises at the moment of death of the other spouse and extends to the totality of property that is at that moment in the possession of the father-in-law or father-in-law; but the right has its own special properties, which are not entirely homogeneous with the general properties of legal inheritance after relatives. Inheritance generally opens directly from person to person (which is not prevented by the right of representation), by the death of the patrimonial owner. From this moment on, the right to the opened inheritance belongs to all legal heirs collectively, no matter who they are and no matter at what time they announced their rights. The heir only has to name himself, i.e. present and certify his name and his relationship: this name alone, and in itself, serves as the basis of his rights. Nothing more than a legal name is required to justify an inheritance claim. Having accepted the inheritance, the heir enters into the totality of the rights of the deceased patrimonial owner, returning them to the moment the inheritance was opened, and if there are several heirs, then from that moment they are all responsible to each other for the integrity of the property; all of them are collectively responsible for the debts and obligations that pass to them with the estate. But the right of a daughter-in-law and son-in-law, when we look at its essence, is not a purely inherited right. This is a right in itself, the right to allocate a certain share from the estate of a father-in-law or father-in-law - for subsistence, for maintenance. This motive of widow's right - completely alien to the pure beginning of inheritance - in itself already indicates the peculiarity of this right. There is no direct transfer here, because the father-in-law or father-in-law, from whose estates the allocation should be made, is still alive and the inheritance has not opened after him, and the deceased spouse did not at all have in his possession the property from which the allocation is to be made - did not even have the slightest right by law to this property during the life of his parent, and what he did not have, he could not transfer. The widowed spouse receives this right on his own, by virtue of his marital name, and extends it to the living owner of the existing estate. It can be admitted that an inheritance is opened for a widow after her husband in the estate that was behind him and in which the inheritance was jointly opened for all his legal heirs, but it cannot be said in a legal sense that in the above case an inheritance in the estate of her father-in-law is opened for the widow. The widow only receives the right to ask for a proper allocation from her father-in-law’s estate, the right to a claim of a special kind, which must be addressed by her to the living defendant-father-in-law, and in order to justify this claim, it is not enough for her to only certify her name: she must also certify that her deceased husband did not have his own real estate. Moreover, this right belongs to the widow only during the life of her father-in-law; if she did not survive her father-in-law, then after her death she does not leave any right to his estate to anyone. The exercise of the rights of an heir in the general manner begins from the minute when the inheritance is opened. But for a widow, the exercise of her rights to allocate the estate from her father-in-law begins from the minute when she presented her rights to her father-in-law and demanded an allocation from him 60. To extend the right of a widow (or widower) beyond these limits, to elevate it to the moment of her husband’s death - while her demand is addressed personally to the father-in-law, and the inheritance in the father-in-law’s estate, as shown above, has not yet been opened - would be completely unfair: this would mean providing the widowed spouse with advantages completely inconsistent with the essence of the right that the law grants him, and with the essence of the legal relationship that arises from this right. Therefore, it would be unfair to assume that, in view of this right of a widow or widower, a father-in-law or father-in-law, from the moment of the death of a son or daughter, is responsible to the widowed spouse for all actions, disposals, alienations and reductions in the value of their property, from which that spouse has the right to ask for a proper allocation. In any case, this responsibility begins from the minute when the father-in-law or father-in-law is presented with a demand for allocation from the widowed spouse. If at this moment the estate of the father-in-law or father-in-law remains in the same composition as it was at the death of the daughter or son, then according to the calculation of this composition, the allocation is made, but if something was reduced, alienated or distributed by the owner before a claim was made against him, then there is no reason to turn back what was alienated and distributed. It is especially said about a widower (Article 1153 of the Civil Code) that he has the right to ask for an allocation from his father-in-law’s estate during his lifetime, when the deceased wife did not have her own estate, and it did not reach the surviving husband, either by row or by any other act. This edition of the article leaves room for bewilderment, because it does not explain: it did not reach - from whom? The law could not have in mind exclusively acts performed on behalf of the wife in the name of the husband, although such acts, no doubt, were primarily on the mind of the legislator. Acts from the wife to the husband on the estate could be of any kind: could be drawn up on the basis of Art. 116. Zach. Citizen an act granting the wife's estate for lifelong ownership to her husband, a deed of gift could be issued to the husband, and a deed of sale could be executed from the wife to the husband. In this case, acts of all kinds, both gift and compensation, eliminate the husband’s right to ask for an allocation from his father-in-law’s estate during his lifetime, for they prove in any case that the wife had her own real estate during her lifetime (which is the main condition of the law). But 1153 art. He also understands acts that were not given from one wife, for he mentions a row, which is written not on behalf of the wife to the husband, but on behalf of the wife’s parent to the son-in-law. A regular entry on the real estate, even if it was written from the mother-in-law, is included in the conditions of Article 1153, because it still proves that the wife received the real estate, or the husband received the real estate from the wife. But does the deed issued directly and on the occasion of marriage by the father-in-law in the name of the son-in-law fit the same conditions? I think that it is appropriate if the deed was a gift, for it must be assumed (unless a different motive is proven due to special circumstances) that the direct motivation for such a gift was the father’s goodwill towards his daughter, her husband and family; if the deed was for compensation (for example, a bill of sale) or by its content and circumstances it is clear that the motivation for its issuance was for external reasons, outside of marriage and family relationships, then an act of this kind does not fit the conditions of Article 1153. Acts issued to the husband for the estate, in addition to the wife, from the mother-in-law, in no case comply with the requirements of this article, because between the son-in-law and the mother-in-law there is no legal relationship that is established by Article 1153. between son-in-law and mother-in-law have the right to demand allocation. So, the widowed spouse receives: A) if the deceased spouse had his own real estate - a specified portion of the cash, free from will, real estate and movable property of the deceased spouse; the right to demand, upon the death of a father-in-law or father-in-law, a specified portion of the husband's (or wife's) inheritance share, calculated based on the inheritance opened by the father-in-law or father-in-law. B) If the deceased spouse did not have his own real estate - a specified portion from the cash movable property of the deceased spouse; the right to demand, during the life of the father-in-law or father-in-law, a specified portion of the husband's (or wife's) inherited share of real estate, calculated based on what the father-in-law or father-in-law will have on the day of the death of his daughter or son; the right to demand, upon the death of a father-in-law or son, a specified portion of the husband's (or wife's) inherited share of movable property, calculated based on the inheritance opened by the father-in-law or father-in-law. The spouse's right to the specified portion is also given the following advantages. This right for the spouse himself is not terminated by any statute of limitations and is not eliminated by entering into a new marriage. If the widowed spouse himself did not ask for the allocation of the specified portion during his lifetime, then his right is destroyed; only the right to continue an already begun claim for allotment passes to the heirs (1152). Of course, if the word “heirs” in this case means the natural children of the widowed spouse from the marriage with the deceased spouse, then in no case do they lose anything, because they inherit after both of their parents (the sons of Marya the widow receive, as the children of her deceased husband, everything that their mother could have received for herself in the specified portion after her husband, when she asked for an allocation during her lifetime). In this only, and not in any other sense, it is said in Art. 1152. Citizen Laws: if a childless wife dies without asking during her lifetime for the allocation of the specified part, then her heirs do not have the right to demand this part, and it goes to the heirs of her husband (cf. Cass. decision 1882, No. 101). It would be wrong to conclude from this expression that the heirs of a wife who did not ask for an allocation receive the right to ask for her if she did not die childless. It happened that on this basis, the widow's children - from her second marriage - demanded for her deceased mother to allocate a specified portion from the estate of her first husband, although she did not ask for this during her lifetime. Such a claim is completely unfounded: in this sense, the State Council in 1832 (Poln. Sobr. Zak. N 5741), interpreted the decree of 1817, on which the cited 1152 article is based. The purpose of the law on matrimonial inheritance law, the State Council reasoned, is solely to ensure the position of a person who remains widowed and, with the death of another person, loses the means of maintenance that he enjoyed during his life. At first, the indicated shares were allocated to widows only for lifelong ownership and upon their death they were returned to the family heirs, but later it was found more convenient to replace the lifelong ownership with the allocation of the indicated shares into property and extend the same rights to the widower. But this purpose of the law has not changed at all, and it is even more reinforced by the provision of 1817, which gives the spouse the right to ask for an allocation for the entire duration of his life and refuses this to his heirs, when he himself did not ask during his lifetime. With such attention to persons who were married, the same law did not consider it necessary to extend to other relatives, because it would be unfair to allow the brother or other relative of the deceased wife to demand, in her person, the allocation of the indicated part from the husband’s estate and thereby transfer it to someone else’s family. (Cf. also Decree of March 1872, March 14 N 15364 in the Koptev case. In the same sense, the Highest approved opinions of the State Council took place on July 15, 1861 in the Ozerova case, Journal of the Ministry of Justice of 1861 N 12 and 1868 in the Myasnikovs and Belkin case.) To the descendants of a widow who did not ask for an allocation, if they themselves are not connected by blood relationship with the person from whose estate the allocation followed, the right of the widow herself, who did not ask for an allocation, cannot in any way be granted; it disappears with her death, and in it the right of representation is impossible for her descendants - in relation to her father-in-law, for only a person connected with the deceased patrimonial estate by blood relationship, and not by property, can represent and intercede. In one case (Khitrova, November 24, 1868), the State Council recognized the widow's formal desire as sufficient publicity - her request for separation, which she submitted to the District Court a few days before her death, although this request, having been filed in the wrong place, was returned with an inscription. In the same sense, decide. 2 General Collection 1870 in the case of Pimenova and Cass. decide 1878, N 188 and 1882, N 101. Everyone is free to ask or not to ask for the allocation of his specified part; but if the spouse who has the right to this claim is recognized and declared an insolvent debtor with the establishment of a bankruptcy, or his already available estate turned out to be insufficient to satisfy the creditors, then the right to demand allocation passes to the bankruptcy or directly to the creditors. But this right to initiate a claim for allotment is granted to them only during the life of the debtor; If the debtor died without asking for the allocation, the creditors no longer have the right to ask for this: after the death of the debtor, they can only take advantage of the claim brought during his lifetime (1155). The specified portion of the spouse is always allocated to him in full; stands out, as can be concluded from Art. 1128. Zach. Gr., first of all (the children share the inheritance among themselves, with the exception of the specified portion for the spouse) and is not subject to any offset or equalization with the shares of other heirs, no matter how many there are: the share of the wife or husband is always unchanged. In this regard, this share enjoys an important advantage over the daughter’s specified share, which is subject to accounting and equalization. The right of a widow to a specified portion of the family estates of the deceased father-in-law, in cases where it is granted to her by law, must be proportionate to that part of his family estates, which should have constituted the legal inheritance of her husband. Therefore, if the father-in-law, during his lifetime, divided his family estates among his heirs, bypassing her husband, or with a decrease in his legal share, the widow has the right to demand the next part for herself according to calculation, without being embarrassed by the conditions of the said division, even if this division took place during the life of her late husband and even if he did not dispute this division. Finally, the wife’s specified share does not include the dowry and her own property acquired upon marriage (Articles 1001, 1150). The specified part of the spouse, even if it was separated from the ancestral property, is considered in any case to be acquired from the receiving spouse: this property of the specified part confirms that the spouse is not a direct heir after the spouse. Direct inheritance occurs by blood; The direct heir is considered to be the person who belongs to the family of the deceased. But the spouse does not belong to the spouse’s clan; he lives in the clan, and with the death of his spouse, he is separated from the clan (cf. Art. 1352). The indicated part of the widow (and widower) is considered an inheritance, because the rights of the widow to receive this part are based on the general law of inheritance, therefore, accepting this share as an inheritance exposes the widow to the general consequences of hereditary liability, from which her husband has no right to protect her with his spiritual will, which cannot violate the rights of third parties, i.e., the testator's creditors, to satisfaction from his property, or other heirs, to equal distribution responsibility. Wed. article about this subject in the Journal. Min. Just. 1863, N 11, p. 445. The spouse's indicated part does not benefit from hereditary increment; therefore, no matter how much the number of heirs by blood decreases, the specified spouse portion does not increase. The right of a spouse is not a general right of inheritance with the clan of the deceased, but a special right of the spouse to the specified part, which is separated to him (cf. decision on the village of Simonova. Collection. Sen. decision vol. I, No. 490). However, this provision, which is essentially correct, is rejected by the latest judicial practice, which recognizes that from the content of Art. 1154. Zach. Gr. it cannot be concluded that the widowed spouse is deprived of the right to take advantage of the increase in his share of the inheritance due to the abdication of one of the heirs (Cass. decision 1884, No. 23). The request of the widow (and vice versa, the widower) for the allocation of the specified part is protected, as can be seen from Article 1152, the right of both her and her heirs. Therefore, this right does not disappear as part of the husband’s property; when it passed to the husband's heirs, the wife's heirs have the right to demand an allocation from this property for her. If the husband’s heirs are at the same time the wife’s heirs (namely, their common children), then by accepting the father’s inheritance, they also accept the mother’s indicated part as part of it, therefore (even if they did not inherit anything else after the mother), they can, for this reason alone, be held accountable for the mother’s debts (see Sat. Sen. Resolution vol. II, No. 595). So, the right of a widower or widow is exercised either by allotment or transfer in the general composition of the estate to a common heir. But only the indicated part is separated by separation. This separation is important in the case when it is necessary to determine the property of the estate (acquired) that went to the widow’s specified portion. Only known, limited, special real estate can be recognized as generic or acquired. estate. Only a special estate, during a hereditary transition, receives, as a result of this transition, one or another property. So, when the specified part of the wife, without being separated from the husband's ancestral property, in its general composition passed to the common heir, there is no way to determine what exactly in this property became acquired. This requires separation, a department. If there was no such department, the difference between paternal and maternal in the general composition of the estate exists only in the personal consciousness of the owner. The consequences of such a condition are of particular interest. If a son were to inherit separately his father’s estate and separately the estate received by his mother for the indicated portion, one would become his paternal ancestral property, the other would become his maternal ancestral property. But when, having accepted his father’s inheritance, he also accepted as part of it the indicated part of his mother, which had not yet been allocated to her, there is no way to indicate the maternal ancestral part in the general composition of the estate. Meanwhile, the following may happen. Such an owner may die childless, in which case the relatives of his mother may have a claim to that part of his estate that corresponds to the maternal decree, on the grounds that this part was his maternal ancestral part. Is it possible to recognize them as heirs of the deceased patrimonial owner in this part? Is it possible, i.e. Having isolated from the quantitative mass a part of its content that has never before had a separate existence, at the same moment create for it such a quality that is determined only by the previous separate existence and the previous history of the property? I think it's impossible. You will not find a solid basis to justify such an operation, even in such a case when the estate taken over by the deceased patrimonial owner after his father was preserved intact until his death. What if it didn’t survive? If some part of this estate was alienated by him during his lifetime, how can one determine which of the alienated items in the total mass belonged to the paternal family estate and what to the mother’s family estate? The above considerations are not consistent with the Senate decision (2nd General Meeting, 1870) in the Pimenov case. In this case, Fekla Bychatina, having become a widow, asked for the allocation of a specified portion from her husband’s estate, but, without receiving the allocation, she died. Her son Fedor, having become the heir to his father's estate, died childless. Rights were claimed to his estate: his own nephew, and, moreover, the brother of his deceased mother Thekla to that part of the estate that corresponds to her widow's share. The Senate decided that Fyodor Bychatin, having accepted the parental estate, also exercised his mother’s right, which she had not lost during her lifetime, to the specified part, which was acquired from her, and from him became the maternal maternal property, therefore, upon his death, this part should pass to the mother’s clan, to her brother. All of the above shows the special care our legislation takes regarding the wife. The rules of our law are inspired by concern for the position of the widow after her husband; but the widow’s right was subsequently extended to the widower, which cannot but be recognized as a deviation from the original principles of the law, for the benefits that are explained and justified by concern for the widow are incomprehensible and do not seem entirely fair when applied to the widower. And about the benefits provided to the widow, it should be noted that they correspond to that era of social life, when a widow, losing her husband, seemed incomparably more orphaned and defenseless than in our time. However, even in our time, these benefits have not yet lost their significance; in the current state of legislation, they somewhat compensate for the disadvantage for women of the general rules on inheritance. In no other legislation do spouses enjoy such advantages as in ours. Roman law calls on a wife to inherit only in certain cases and under certain conditions; French law calls for her when there are no other relatives. A special case of inheritance after a wife occurs when a husband of a noble estate takes, with the Highest permission, the surname of his wife, after the suppression of her family in the male tribe. Then, upon the death of the wife, if there are no children left, all of her immovable estate, which came to her from her father, passes to the husband (Article 1160 of the Civil Law). Lithuanian regulations. The statute on the right of a wife after a husband (but not a husband after a wife), which remains in force for the Chernigov and Poltava provinces, comes closer to Western legislation. Spouses generally do not have the right to inherit after each other in each individual’s separate property. When both of them, having nothing at the time of marriage, later acquired property through common efforts, both bought it together or accepted it under deeds of gift, then they receive after each other - with children, a third of this property, and without children - everything that remains. The wife's dowry, when it was secured on the husband's estate, returns to her, but if it was not provided or did not exist at all, the widow receives upon the death of her husband in possession (and not in ownership) a part equal to the children they have in common (interpreted: a part equal to the filial part), if there were no children, a third part of the husband's entire estate; but if he enters into a second marriage, he has the right only to lifelong ownership of the fourth part of his husband’s estate; however, the heirs are given the right to redeem this right by paying half the price according to the judicial assessment. This is the right of a first-married widow; a widow after her second marriage is given less rights: she receives a lifelong ownership of a part equal to the common children when there are several of them, and if only one son or one daughter remains, she enjoys only a third part for life. A widow who marries a widower, upon his death, enjoys a lifelong equal share with the common children; and if there were no children, he owns a share equal to the children from his first marriage until he marries; in the latter case, this part is also lost. But all these rights are granted to the wife only in the case when the husband, during his lifetime, did not strengthen anything immovable or movable to her by a legal act or did not give her for lifelong possession. A widowed noblewoman who entered into a new marriage earlier than 6 months after the death of her first husband is deprived of the estate assigned to her by her husband according to the vein record. See Art. 1157 Zach. Citizen and a note to it and an article by Mr. Pestrzhetsky in the Journal. Min. Just. 1860, N 12. A. In the inheritance of the Mohammedans, all the wives of the deceased, no matter how many there are, receive in total from the entire estate, with children, one eighth, and without children, a fourth, and they divide what they receive equally among themselves (1161). B. According to the charter of the Riga pilot shop, in the event of the death of a pilot in service, one of his widows is given half of the share of pilotage dues that would have been due to the deceased in the next division: other heirs have no right to participate in this money. See II Collection. Zach. 1854, November 24 (28760) § 67. B. Widows of the husbands of officials have the right to a pension, in cases and according to the rules specified in the Constitution. about pensions, but the right to ask for a pension is limited to a special period (III volume of the Constitution of pensions. 171–173, 217–227), and the pension terminates with the widow’s entry into another marriage and deprivation of the rights of the estate or entry into monasticism (ibid., art. 155, 251, 252). D. On the right of the widow of a Protestant preacher to an apartment and income from the place during the mourning year, see Ord. In. Spanish 357. D. Upon the death of a disabled person settled in Pavlovskaya or Nikolaevskaya Sloboda, a widow, if she has little. children may use the premises or area of ​​the deceased until they reach adulthood. P.S.Z. N 49663. E. On the participation of widows in the land allotment after the death of their husbands among peasants and foreigners, see Vol. IX, Special. Adj. XVI, Pol. Bashkirsk, st. 20. Among the Cossacks Ord. Cossack. Sat down. 118 et seq. adj. to 53 Art. according to Cont. 1863, paragraph 30; see also Const. about exile ed. 1890, art. 363. § 42. Escheatable inheritance. – Cases in which escheated property is turned in favor of different institutions and classes When there were no heirs after the deceased, i.e. no one appeared during the 10-year period when summoned, or none of those who appeared proved their right, then the remaining estate is recognized as escheated; it either turns into state property, or, by special right, is provided in favor of certain institutions or societies to which the deceased belonged. This special right is enjoyed by: educational institutions (ved. people's education), after officials at these institutions who are in the service; Universities and the Medical-Surgical Academy - after their members, teachers and officials; educational institutions of the department of the Empress Maria, after those who served in those institutions, as well as after students and pupils, the spiritual department after the spiritual authorities (in their movables) 61; Catholic monasteries, after nuns (in their monetary dowries); cities after city dwellers, in real estate, if it was within the city limits and the lands allocated to it (real estate outside this line, movable property and capital go to state property cf. Cass. decision. 1878, N 47); rural society after the peasants assigned to society; Cossack troops, after officials and Cossacks, Little Russian Cossack societies after their Cossacks, in their hereditary Cossack lands (lands lying inside the public dacha, but acquired from outsiders, as well as movable property and capital enter the society only with its consent; otherwise, equally, lands acquired from outsiders outside the public dacha are converted into state property); society of Sarepta and Baltic Evangelical colonists, after the deceased colonist (Const. Col. 179); disabled capital - in prize shares following those killed in battle; emerital cash department of the naval department - after those who served in this department, except for the lower ranks, whose artel and own money turns into food or grub, and if they died on a government ship or vessel, then their property is given to hospitals; care home for female orphans of the Odessa Charitable Society - after those cared for in it (Zak. Gr. art. 1162–1172, 1174, 1176, 1178, 1179) 62. According to the law of 1893, escheated property after hereditary nobles is turned over (except for the cases specified in Articles 1168–1172, 1174, 1176–1178 and 1180–1182 of the Law of the Russian Federation) in favor of noble societies. Hitherto this extended only to the property of nobles recorded in the genealogical book; The new law also applies to the property of nobles who are not registered. The immovables appeal to the nobility of the province where they are located. The movable property goes to where the deceased is recorded in the genealogical book, and if he is recorded in two or more provinces, it is divided equally. If he was not registered, but had real estate, then the movable property follows the same procedure. If he did not have real estate, then the movable property should go to where the father or paternal grandfather was registered, in the same order. 1891 Apr. 3 No. 45. – Regarding what arose in the case of the Tambov State Department. property on the issue of declaring escheat the property of State Councilor Kashkadamov, is rule 1169 of Art. Zach. Citizen on the circulation of escheated property remaining after the death of pupils and pupils of the educational department of the Empress Maria, in favor of those educational institutions - in which the deceased were brought up, to the property remaining after those persons who died while being educated in these institutions, or to the property of former pupils and pupils who died after leaving these institutions, Citizen. Cass. Dep. found that this question should be resolved in the first sense. A. Monasteries are assigned the hereditary right to the sacristies of the monastic authorities and to their escheated property, to all movable property of ordinary monks and to buildings inside the monasteries remaining after the death of ordinary monks. IX. 393; 442, 443. Const. Foreign Spanish 1016 (per Cond. 1890). Among the Armenian-Gregorians, the property of the patriarch, diocesan leaders and vicars, if not bequeathed in favor of charitable institutions, goes to the benefit of the Etchmiadzin Monastery, and the property of monastic abbots and monastics, in the same case, goes to the benefit of their monastery. Est. Foreign Spanish 1015, 1016 (according to Cont. 1890) and 1871 March 1 (49304). B. According to the rules for the organization of peasant volosts in the Baltic provinces, inheritances in which there are no legal heirs are addressed to the volost cash office. Full Collection Zach. 1866 (43383) § 11. B. The property left after the exile in the place of settlement, if he had no direct heirs or wife left in Siberia, is sold, and the money goes to the economic capital of the exiles, especially to the province where the deceased was (Constitution of exiles, ed. 1890, art. 431, 433). Before distribution, the property of the exiled deceased goes - past the heirs, into the economic sum of the Irkutsk and Amur Governorate Generals (note to Article 431). The buildings left behind by convicts, if there are no heirs, go to the department of the plant where the deceased was located (Article 427). After the exiles, the property is given to their closest relatives if they followed the exiles, otherwise they go through sale into the economic capital of the exiles. Est. exile, Art. 431, 434. D. Money after the ranks of the Don Army killed or died in the regiment, if there are no heirs, goes to the treasury of the parish church of the village where the deceased had residence (cf. Law of Civil. 1219). D. Their debts are paid from their own money belonging to the dead, killed and missing ranks, as well as salaries and other sums that followed them from the treasury, but for some reason were not issued, the rest of the money is then given to their closest relatives or to those to whom they will be assigned according to the spiritual will. But if a will is not made, and the relatives of the deceased do not appear within a year to receive the inheritance, then the money turns into disabled capital. St. Military Fast. Part II. Book I. 2210 Art. according to V Cont. E. Private waqfs, upon suppression of the births in whose favor they were established, apply to the state. property. Est. Foreign Confession Adj. to 1203 art. and 1874 July 5 (53703). G. Houses remaining after the death of retired or retired lower ranks who settled in former state-owned villages, if there are no heirs, are turned over to the village for public needs. Est. Forest ed. 1893, art. 281, 413, approx. 2. Z. Special cases of escheat or circulation of certain amounts to the treasury, or in favor of a special department, see Establishment. Ord. ed. 1892, Art. 172. I. If after the sale of the insolvent property, to satisfy all his debts and cover the bankruptcy expenses, there is still money left, but the heirs do not appear when called, then this money is turned to the Prik. General Charities; see Set. General Ghost ed. 1892, Art. 45 paragraph 3; but to explain this, it is necessary to believe it according to Bankrotsk. Est. 1800, Dec. 19 (19692) Part I § 160. J. In addition, there are cases in which some property, either by type or by the title of its owners, in the event of their death, does not allow inheritance at all to the blood relatives of the deceased: in this case, these properties are given a special purpose. Thus, sacred images in granted panagias and crosses, after the death of clergy, are removed from their frames and turned into the sacristy of the place to which the deceased belonged due to his service (vv. 1025, 1186). The sacristies of the monastic authorities turn to the monastery treasury; All movable property of monks of lower degrees also goes there (1187). The escheated property of the bishop is turned to the benefit of the bishop's house (IX. 395). Icons and sacred objects, when inherited by non-Christians of other faiths, must be transferred by them within 6 months from entry into the inheritance into the hands of the Orthodox or the Orthodox Church (1188–1190 centuries). 1891 Jan. 30 No. 2. – On the question of whether the treasury acquires an estate by escheat only due to the expiration of ten years from the time of publication of the summons of the heirs, or must, for this purpose, exercise its right of ownership by seeking a court ruling on the transfer of property, or actually take possession of this estate, Gr. Cass. Dept. spoke in the sense that the estate becomes escheat, constituting state property, due to the fact that within ten years from the time of the last publication about the summoning of the heirs, no one came to receive it, or none of those who appeared during this period proved their right. § 43. Special inheritance procedures. – Inheritance and division among peasants according to custom. – Law of inheritance in the Baltic provinces For some estates, a special inheritance procedure has been established. 1. For protected estates. The founder of each reserved estate is obliged to indicate in the act itself which of the persons of his family he intends the estate to; however, those who have legitimate children or other direct descendants cannot bypass them: those who do not can appoint relatives in the lateral line, from the hereditary nobility. The founder may, in the event of the death of the first appointed heirs and the suppression of their offspring, decide which of his relatives should then receive the estate. But if the estate upon establishment has the property of a family, then the intended heir must be from the family from which the estate came to the founder. In any case, the transfer of the estate to the descendants of the designated heir must be carried out in the manner determined by the laws: the founder can only decide to whose descendants the estate should go if the descendants of the first-appointed one dry up. The general law of inheritance is this: after the first owner, the eldest son and his offspring inherit, always in the person of the eldest son, by right of representation; if the eldest son died, leaving no representatives in the direct line either in the male or in the female tribe, then the second son follows with offspring, also in the person of the eldest; if there are no sons or offspring from them, the eldest daughter with offspring, then the second daughter, etc. If after the deceased owner there are no descendants left and he was not the first owner by appointment, then the estate passes to the eldest of his brothers and his eldest offspring, etc.; then to the eldest sister and her eldest offspring. And when there are no brothers or sisters with offspring left after the deceased, the estate passes to the eldest of the brothers or the eldest of the sisters of his father, in the same order, if only this uncle or aunt descends in any degree from the founder, or the original owner, or the first heir of this estate. On the same basis and in the same order, observing in all cases primogeniture, the representation and preference of the male tribe to the female, all other collateral relatives inherit, provided they come from the above-mentioned persons. Inheritance in a reserved estate after the owner does not prevent the same person from inheriting in accordance with the general order in other non-reserved estates after the same owner (Civil Law 1192–1205). If 2 or 3 separate reserved estates came to one person, then they are not merged with that owner, and their further distribution among the heirs is carried out according to a special order (Articles 1206, 1207). If a husband and wife have separate estates, then the husband’s estate goes to the eldest son or, in the absence of sons and their offspring, to the eldest daughter; and the wife’s estate goes to the second son, or if they have only one son, to the eldest daughter, or to the second, when the eldest receives her father’s estate (1208). The reserved property of the estate is destroyed when there are no more heirs from the hereditary nobility in the reserved line: then the estate goes, according to general laws, to the heir of the last owner (1209). If the owner died without providing for the fate of his widow and children, who do not inherit in the reserved estate, then the widow receives a lifelong right to a sixth of the net income from this estate, and the children have the right to demand that a special capital equal to two years of net income from the estate be created for division between them through a loan. The same right belongs to the widower and children after the owner of the estate. The income of the last year remaining after the death of the owner, both collected and subject to collection on the day of death, is divided, minus the personal debts of the owner, between the widow and children - not heirs (Articles 1211–1213. See also in the first part of this work the article on reserved estates). 2. For estates granted by primacy in the Western provinces (Articles 1214–1217). These estates always go to the eldest son; only after the first acquirer, who has no sons, does the estate pass to the eldest daughter and through her to her eldest son, or the eldest son of another daughter. When the first acquirer has no daughters, the elder brother inherits. 3. For plots allocated to indigent nobles based on regulations issued in 1848; they pass without fragmentation to the eldest heir in the family (516, 1191 art.). 4. For inheritance after foreigners. The procedure for the inheritance of foreigners in the estate remaining in Russia is determined by general laws (cf. 63 Articles of the Legislative Court. Civil and 1274 and 1281 Articles of the Establishment of the Civil Court), except for the Kingdom of Poland and the provinces of Bessarabia, Vilna, Vitebsk, Volyn, Grodno, Kyiv, Kovno, Courland, Livonia and Podolskaya, where, according to the law of March 14, 1887, foreigners in real estate outside the cities inherit only in a direct descending line and after the spouses, if, moreover, the heir settled in Russia before the publication of the above law, in all other cases the heir is obliged to sell the property to a Russian subject within three years, otherwise it is taken into custody and sold at public auction (IX, Art. 1003, note 2, appendix to Cont. 1890, art. 3; Law. A special rule has also been established regarding perpetual debts belonging to foreigners entered into the state debt book: property of this kind goes to the heirs of the foreigner according to the order and inheritance rights of the state to which he belongs. The same was decided on state continuous-income tickets (Article 1218 of the Civil Code; Establishment of the Credit Edition of 1893, Section II, Article 66, Section III, Article 49). 5. For inheritance after the colonists - in the lands allocated to them from the treasury. According to the rule, the youngest son inherits; only in case of inability, his plot is given to one of the eldest sons or close relatives, by appointment of the deceased or by order of his superiors. There are no special regulations regarding inheritance in the lands acquired by the colonists, but regarding movable property it is decreed that the widow of the deceased is given 1/4 of the share, the same share to all daughters together, and the rest is divided equally between the sons (Constitution of Col. 169–171, 176, 178). According to the general law for colonists, their younger sons (minorate) inherit in the plot, without fragmentation; This rule was established in a decree on March 19, 1764, and is in connection with the general goal of the government to organize colonization for the establishment and success of agriculture, which was recognized as a necessary means of maintaining areas in economic integrity. Therefore, the same law decreed: if the youngest son cannot own the plot with proper success, due to his childhood or some kind of inability, then he should leave it to his father’s will: whomever of his older sons or relatives he chooses as heirs or guardians; if the father himself does not have time to do this, then the district authorities are obliged to elect a guardian for the young heir; If the heir is completely incapable of ownership, then give that plot from the closest relatives to those who do not have their own plots, and if the rights of several are equal, by lot. So, here, with conditional and limited ownership, the hereditary transfer of a plot should be determined not solely by blood relationship, but by the ability of relatives, even the most distant ones, to continue and maintain the farm. Disposition of movable property at the will of the parents; but if no will is left, the widow is given 1/4 of the share, the same for all daughters, for a dowry, and the rest to all brothers, with the understanding that the heir to the plot is obliged to support the mother until death, and the sisters until marriage. If there is only one widow left with her daughters, then she will own the plot until someone gets married; the owner of the plot becomes the first man who enters the family (cf. Est. Col. Art. 113, 120–125, 149–161, 169–178). These legal rules of inheritance are not, however, strictly observed. In practice, they are significantly changed by the common law of the colonists, which is more consistent with their economic needs. Thus, for example, the right of minority remains unapplied; This deviation does not, however, contradict the law itself, in which the rule on minorities does not have an unconditionally binding meaning: the plot can be transferred to the most capable; Consequently, it always depends on the will of the householder, on the pretext of the inability of the younger one, to transfer the plot to the eldest son or even to one of the further relatives. Urgent economic necessity compels the colonists to divide the plots that constituted the original economy, by inheritance, by wills, or by family agreements, in order to make room for the founding of new farms for such members of the family or community who would otherwise remain landless; however, 173 art. Est. o colon. gives the right to divide household plots with the consent of the assembly and elected leaders. In any case, the positive rules of the Charter of Colonies. Regarding inheritance, they mean the colonist mainly in the circle of his land settlement and mean the plots allocated to him from the treasury for farming. But, in addition, each colonist can acquire, regardless of the special rights of his class, as a Russian subject, lands and immovable estates outside the colony and all kinds of movable property. In relation to their own lands, which are outside the state allotment, to the colonists, according to the force of Art. 167. Est. Colon., all rights granted to rural inhabitants were granted. Some colonists adopted, as stated above, by custom, special rules for inheritance in their own property. Among the Mennonites of the Molochansky district, these rules are expressed in the form of a written position, which these colonists value very much, without separating it from their religious provisions and rituals. By virtue of this position, women inherit equally with men in all lines. Heirs in the descending line do not share the inheritance with anyone. Parents unconditionally exclude all relatives beyond the first collateral line and divide the inheritance equally with cousins. Grandfather and grandmother share the inheritance with uncles and aunts, as well as with cousins; great-grandfather and great-grandmother - with cousins. Cousins ​​are preferred to natural uncles and aunts; native nephews and nieces - to cousins, uncles and aunts, etc. (see Our Colonies - Klaus, St. Petersburg, 1869, pp. 12, 130, 158, 186, 220 and Appendix 8). The inviolability of customs in the inheritance was granted to the former colonists in the new provision about them. T. IX, Special. App., XV, Art. 19, paragraph 7. 6. For inheritance in land plots allotted to officials of the Don Army for short-term use (Ust. Cossack Village. Art. 53 note 3. Appendix to Continued Art. 9. Compare part one of this work § 63). 7. Estates granted for a period of rental ownership, upon the death of the owner, if the term has not yet expired, are inherited only by the widow of the deceased and children, and then to descendants in a direct descending line: further conversion of such estates into lateral lines is not allowed and they are returned to the treasury if there are no heirs in the direct line. The expression: then may give rise to bewilderment, does the law allow inheritance in these estates only once before the expiration of the term? According to the meaning of the law, if a son who received such an estate after his father, to whom it was granted, died before the expiration of the period of ownership, then there is no obstacle to his children, since they constitute the descendant descendants of the first owner, from accepting the estate as an inheritance. Estates of this kind should not be fragmented during inheritance; this does not mean that the material value of the right becomes the property of one only among many heirs: the income from the estate is the common property of all, but the management of the estate must belong to one. On the same basis, i.e. in favor of only the wife and descendants, inheritance is also allowed in cash leases (Constitution of Kaz. named after Appendix to Note 3 to Article 2, Article 36). 8. A special order of inheritance in fief estates, in the male line. Flax estates are not subject to fragmentation, but pass in their entirety to one of the sons permanently in the male line, and upon termination they are turned into the treasury (T. VIII, part I, ed. 1893, Establishment of Forestry, Art. 761 and appendix II to note 1 to Article 1, Establishment of the Kaz. im., Art. 1). 9 . Upon the death of the exiles, all movable property and money that they acquired in Siberia passes to their direct heirs located in Siberia and to their wife in the specified part; if there are no direct heirs, then everything goes to the wife who came to Siberia with her husband of her own free will, or in Siberia who married him during exile; but the exile’s property does not apply to the heirs residing in the internal provinces. The same order is observed, as can be concluded from the note to Art. 432. Est. about exile ed. 1890, and in the inheritance of real estate that could be acquired by exiles in the place of settlement before 1845 according to the previous rules, and after that, on the basis of the Decree of 1859 (423, 424 Articles of the Statute on Exiles). The property of exiles who died on the way, or before distribution in Tyumen, does not come into inheritance; only their own money, which was taken from them upon departure against a receipt, can be transferred after them to their wife and closest relatives, if they were sent along with the exile. The buildings erected by the exiled convict at the place of work pass to his wife, children or other relatives (Statute on exiles, Art. 427–434). The inheritance after an exile opens not only by death, but also by conviction for a new crime, when he will consequently be removed to another Siberian province or region (Article 432). Upon the death of an exile's wife, the inheritance belongs to the husband or parents of the same rank (?) or to those who came with him to Siberia of their own free will. Art. 430 Set. about exile, in which this rule is placed, is very unclearly stated. 10. Roman Catholic churches receive 1/4 of the movable property after clergy who were at those churches and died without a will. Est. Foreign Spanish 116. 11. A special procedure for inheritance is indicated, however, not entirely definitively, for hereditary lands or estates belonging to Khans, Beks, Meliks and Agalars (1846 Dec. 6 (20762) paragraphs 9–11): the heirs, in the division of these estates, are given, in addition to Russian laws, to be guided by the rules of Sharia, as well as Adat or local custom 63. 12. A special rule determines inheritance in the capital contributed to the debt repayment commission by a foreign investor for a perpetual debt. In the event of his death, the perpetual debt goes to his heirs according to the order and rights of the state to which he belonged. The law does not say that this rule applies only to the inheritance of foreigners living outside of Russia. Credit. Est. ed. 1893, sec. II, art. 66. 13. The inheritance of peasants is determined according to their customs, Vol. IX, Special. adj., General cross. floor. 38. Gender Off 166. Local Great. 110. Local Malor. 93. Local Transcaucasia Art. 81. Local Bessar. Art. 36. This rule applies regardless of whether the inheritance consists of a peasant plot or other property, and whether the inheritance case is carried out in a volost or general court. General laws apply only when the custom is not specified or the indication is considered insufficient (Cass. decision 1880, No. 174; 1885, No. 3). To the Householder, according to Malor. Location Pos., it is possible to transfer, during one’s lifetime, the family plot to the nearest heir; and whoever does not have a direct heir can pass it on to an adopted child. When passing by inheritance, plots cannot be divided into more than half of the highest walking size (Articles 94–96). For a similar rule on non-fragmentation, see Local. Floor. Transcaucasia Art. 84. Wed. Opinion. State Sov. 19 Feb. 1861, about alienation. room lands, vol. IX, art. 330, note, adj. according to Cont. 1890 Our general laws on inheritance were first formed in the everyday life of the service classes: general rules were clarified and prescribed by royal decree, based on the needs of this life and the interest of the Sovereign's service. The law on inheritance gradually became more definitive, the more definitively the beginning of personal property degenerated from dependent and local ownership. Peasant life remained outside of official rights and obligations, and peasant land ownership remained outside the legal definitions inherent in property. It is not surprising, therefore, that the general law of inheritance remained a dead letter for the peasants, who in essence did not have the right of inheritance, but only a hereditary custom. It is impossible to capture this custom in the form of definitive general rules for individual cases, because popular consciousness was expressed in the indisputable agreement of family members, in public verdicts, in the verdicts of a special peasant jurisdiction, and in each individual case there could be a variety of shades, so that it is extremely difficult to extract general guiding rules from individual cases. One thing is certain: that the peasant hereditary custom differs significantly from the general inheritance law, and the grounds for this difference are rooted in the properties of the peasants’ economic life. By the nature of this way of life, the family in it has a special economic and legal form, and the property itself is not presented in the same form as, for example, that of a nobleman or merchant. In peasant life, the main figure is personal labor, from which, in the absence of personal property and freedom, the full meaning of capital had not yet been clarified until recently: the concept of capital could not but exist, but capital in general seemed to be an aid to personal labor, and was not separated in the sense of the collected stock of previous labors, and with great difficulty received, with the special development of industry, market, exchange value. Under such circumstances, the family appears to the peasants as a workers' economic union, and property as the common economic equipment of the whole family, which cannot be divided without upsetting the economy; if you have to divide it, then you need to take into account, in fairness, not so much the closeness of kinship, according to an abstract idea, as the actual participation of one or another member in the general earnings. In a peasant family it is difficult to indicate who is the owner of the common family property; You can only specify a manager, and with his death, the inheritance is not opened, but only a change in the manager is made, who usually becomes the eldest, either by age, or by the direction of the deceased, or by choice. Division is not at all a necessary consequence of this rearrangement, for in essence there is no transfer of inheritance, and there is no estate that could be called hereditary in the sense of the general law. The division of a family is caused by special circumstances, the economic needs of all or some, quarrels, etc., and is essentially nothing more than a division of common earnings, and even non-blood relatives, if they lived in the family (for example, stepchildren, sons-in-law), can be debtors, and the division is not made generationally, according to an abstract principle, but according to the number of available adult workers. Anyone who has previously separated from the family and settled on his own farm does not participate in the general division; hence the assumption that on the vine, i.e. in the old house, the youngest son remains the owner, since he lived with his father and did not have time to stand out (this custom, however, is not observed everywhere). The woman herself does not participate in the division of family property, the widow does not receive for her husband, and the married daughter is considered completely separated, and the girl can only claim a dowry. In general, when dividing, it is taken into account how many of those dividing participated in the acquisition, in the increase of the total family capital. Therefore, the brother of the deceased, when he did not live with him in the division, participates together with his children in the division of property after him, and his stepsons also participate if they worked in the house. Daughters usually receive nothing from their brothers or receive a small portion. These are the essential grounds for division, stemming from the conditions of economic peasant life; but at the same time it is necessary to note: firstly, that in some areas where there was no custom for families to live without division in the general composition, where there was a custom of separate ownership of land in plots, or where peasant ownership of land on the right of personal property has long existed, and the indicated grounds change; secondly, that in addition to common family property, some movable property constitutes the separate personal property of individual family members, and in this property there are special inheritance customs. In general, legal customs are difficult to communicate and never achieve the completeness and definition characteristic of positive law. In our country, the peasant hereditary custom was not at all taken into account when deciding cases in general courts when it came to inheritance (for example, when opening an inheritance in the city after a peasant industrialist, or in separate peasant property that lay outside his rural settlement), in general, cases of this kind were outside the general jurisdiction and were decided by patrimonial, class or administrative authorities. Only with the liberation of peasants from serfdom did the peasant hereditary custom gain significance before the law, for Art. General positive about the peasants. provided to peasants in the order of inheritance of property (not excluding property that can be acquired on the basis of Article 33 on the side, outside the peasant allotment) to be guided by their local customs 64. Where, as we have in Russia, property relations are so inextricably and so variedly connected with the usual structure of the family, in the agricultural population, it would be great violence on the part of the legislator to abolish all these customs and fit all hereditary orders into one narrow frame of positive law. And among the Germanic tribes, and even more so among the Slavic tribes, hereditary orders arose from family life, and developed on it, with the essential goal of protecting the family in its integrity in terms of property. That is why, in our time, and where processed codes of inheritance law have long existed, voices are heard arguing for the need to separate regulations on family and inheritance from civil law codes. According to the new law of 1889, the department of the volost court included cases of inheritance and division between heirs of peasant property: a) without limiting the amount, when it is part of the peasant allotment, and movable property is part of this allotment; b) when the inherited property located within the volost, although not part of the peasant allotment, its value does not exceed 500 rubles. In the newest code, processed by Bogisic for Montenegro, both family relations and inheritance rights are left without legislative analysis and definition. In addition, in the Far East, the Japanese legislator is inclined in the upcoming development of a civil code for this state. Law of inheritance in the Baltic provinces. According to Roman law, the concept of idle inheritance (her. jacens) is recognized as a legal entity, and the calling to inheritance is distinguished from acceptance. The predominant basis of inheritance law is an inheritance contract, then a will, and after that inheritance by law. The ability to inherit is required at the moment of calling for an inheritance, and according to a will or contract - at the moment of committing one or the other. Inheritance by law is allowed in conjunction with inheritance by the will of the deceased only in Courland; in other areas the Roman rule applies (nemo pro parte testatus pro parte intestatus; Ost. Civil. Law. 1691–1704, 2125); however, if the will does not assign certain shares to the heirs, then, after the distribution of parts according to the will, the remaining property is divided among them not according to the proportionality of these parts, but equally, according to the number of persons or tribes (2698). The following are called upon to inherit: firstly, the living spouse, and secondly, the blood relatives of the deceased. If there are no latter at all, then the spouse receives the entire inheritance and shares it with relatives. The definition of the marital part is distinguished by a special variety of regulations, due to the historical differences in rights and customs in different areas of the region; so that in the civil law 160 articles are devoted to this subject (1709–1869). City law, zemstvo law, Livland, Estland, Courland, Pilten zemstvo, Narva city law - contain various regulations about this; In addition, a special procedure has been established for the inheritance of spouses of clergy in Courland, Livonia, Estland, Riga and Reval. Everywhere, however, the right of a spouse is determined differently, depending on whether he has children or no children, whether the husband left a widow or a widower left after his wife: the extent of responsibility for inherited debts also depends on this. Without going into the details of local statutes, it is enough to point to the decisions of Livonia and Estonia zemstvo law as a sample. A wife with no children receives the entire inheritance after her husband for unaccountable possession and use, until division, which children or, after the death of children, relatives can demand only if the widow enters into a second marriage, preserving until then or until her death only the expected right to inheritance. During the division, the widow receives all the movable property of the deceased, and from real estate and debt claims a share equal to the child's, but in the event of her death before the division, the right to this last share does not pass to her heirs. A childless widow owns the entire inheritance for 1 year and 6 weeks from the death of her husband; then, upon division, he receives the widow's estate, all movable property (and in Estonia, 1/2 of the debt claims). A widower with no children in Livonia inherits all his movable property, and owns all other property until his children reach adulthood; in Estland, during widowhood, he retains the entire estate in lifelong ownership, and in the case of a new marriage, upon division, he receives all movable property, money and a share of real estate and debt claims equal to the child’s share. A childless widower (in Livonia) receives all movable property and money, and the use of estates for 1 year. Illegitimate children inherit only after the mother and her relatives, in the same way as legitimate children, and vice versa. Those adopted after their adoptive parents and their relatives inherit in the family estate only due to the special conditions of adoption, and in the acquired estate they inherit after the adoptive parents on an equal basis with legitimate children. They are not disinherited even after their blood relatives. After the adopted person, his relatives by adoption inherit, along with blood. The general order of inheritance is borrowed literally from Roman law according to the 118th novel, in the same 4 categories. The right of representation in categories 2 and 3 extends only to the nephews of the deceased, but no further, and in category 4 is not allowed at all; in the last category, neither multiple kinship, nor full blood, nor gender difference matters. When men and women inherit jointly after a nobleman, the former have a preferential right in all ranks to retain the estates. These are the general rules. But in the diverse law of the Baltic provinces, general rules can only rarely serve as sufficient guidance. The order of inheritance is complicated by a great many local differences, similar to those mentioned above, and many other city and zemstvo rights. This difference depends mainly on the different properties of the property, and moreover, when the ascendants participate in the inheritance along with the brothers and sisters of the deceased, the extent of their participation is determined differently, depending on whether the deceased patrimonial owner was separated during his lifetime or not. In Estonia, ascendants certainly exclude collateral relatives. In Livonia, from the estates, a man receives equally twice as much as a woman; in Estland this advantage of sons extends only to the father's, and not to the mother's, estates. In Courland, sons receive from their father's inheritance after a nobleman three times as much as daughters. According to Livonian law, the paternal line goes in the lateral lines to the father's clan, the maternal line goes to the mother's clan. The right of escheat exists, regardless of the rights of the state treasury, for the University of Dorpat, for the city, for the evangelical fraternal society and for the church (regarding clergy). Note to the second chapter. According to local Bessarabian laws (Donich Tit. 37; Armenopoula Tit. VIII, book V), the order of inheritance is presented in the following form. Those who descend first inherit. Children adopted and legitimized by recognition inherit along with their legitimate children; the full-blooded exclude the half-blooded. Children of deceased parents inherit by right of representation generationally. If there are no descendants, those ascending inherit, of all degrees, with the exception of the next one before the closest ones, but they participate equally with them if there are full brothers and sisters of the deceased. After a son dies, a father, even if he leaves behind children, receives his estate for lifelong ownership. Full brothers and sisters are preferred; Only when they are in short supply are those of inferior descent called upon to inherit. Men are not preferred to women. If the deceased has no living brothers, but only their children and nephews, then all of them, no matter how many there are, divide the estate equally. The spouse, after the deceased spouse, and with the children, receives an equal share with them; with lateral heirs - brothers, receives an equal share with them if there are more than three of them, otherwise a fourth. In some cases, incidentally, in the event of a second marriage, the surviving spouse retains his share only for life. In general, these laws are poorly defined and full of contradictions. According to the Armenian code of law, the order of inheritance is determined in accordance with 118 new laws. and later Roman law (see Alekseev’s article on the Arm. Court. in Reading Moscow. Ist. General. 1870). Chapter three. Opening, acquisition and division of inheritance § 44. Opening of inheritance and acquisition thereof. – Liability of the illegitimate heir to the legitimate one. – Transfer of inheritance rights. – Agreements on future inheritance The right to the opened inheritance belongs to the heirs from the very death of the owner (1254). Therefore, no matter what time the heir appears, his right is elevated to the minute the inheritance is opened, which follows him in essence with all its increments and income from that time. The application of this rule is indisputable if, before the heirs entered into the inheritance, it could not be considered to belong to anyone: on this basis, for example, the estate is given to an absent heir from the government (with all income, except for expenses, on which 1% is due, see 1244). But when the heir appears, it may turn out that before him the person legally owned the estate, who previously appeared and was recognized as the legal heir, but must now completely cede it to his priority or partly give up his joint right. In this case, the question of the liability of the previous owner to the new one, in terms of income, is resolved according to the rules on remuneration for ownership, depending on whether it was in good faith or in bad faith (Law. Civil., Art. 609–615, 618–626, 628–643. Cf. Cass. decision. 1876, No. 29 and this work, part 1, § 21). Special rules determine the liability of heirs by law, brought into possession of the estate, to the heir under the will, subsequently presented for the same estate (Civil Law 1300–1302). The right of an heir to an opened inheritance, until it has been realized, is a personal right, transferable only through legal inheritance: in this regard, our laws allow unlimited so-called transmission. But the question is: is it possible to transfer this right by will to a third party or by contract? There is hardly any reason in our laws to prohibit the transfer of this right by a will, which establishes the same inheritance, if the estate to which the right relates is movable, which cannot receive patrimonial property from a hereditary transfer. If this ancestral estate, or generally being immovable, should receive ancestral property from the heir, then the transfer of inheritance rights to such an estate to a third party, and not to the one who should be the heir according to the will, will be inconsistent with the spirit of our laws on family estates and on wills. These considerations apply even more so to the right to inheritance of a person who is not the only heir, but a joint heir with others, for in this case the freedom to transfer the inheritance right is hindered by its inseparable community with other persons, without whose consent the participant, on the basis of the general law (Article 1314), cannot alienate his share (cf. Collection of Sen. decisions vol. 1, 598). Only in the Chernigov and Poltava provinces are allowed, according to local law, the so-called snail records of the assignment of inheritance (Article 1256; cf. this work, part 1 § 39). Talk about this subject. in dec. 1 General S. Sen. 1871 according to the date of inheritance. Arch. Plato. In the Gogol case (Cass. decision 1872, No. 794), the question arose: with the transfer of the entire share of the father’s inheritance according to the snail record, when indicating the amount of land, was the right to receive a redemption loan on that estate transferred? It was proven that the snail. records are of two types: for an uncertain inheritance and for a known part of the inheritance. But the Senate decided that, according to the Lithuanian statute, a snail record means the transfer of inheritance rights in their entirety, although according to the content of the record it may also contain the closest definition of the components of the inheritance. Before the inheritance is opened, there is no heir to it, in the sense of civil law; if there are persons available who, by relationship, even the closest one with the owner, can be considered his intended heirs, this assumption has no legal significance, i.e. in itself does not give them the slightest right to property 65. Since the civil personality of the owner exists in full rights, there can be no talk about the civil right of the heir to the estate (there can be talk when the rights of the owner are limited by the imposition of guardianship, Law. Civil. 376), especially since until the very moment of the opening of the inheritance it is impossible to foresee with certainty which of his intended heirs will be present or alive and who will be recognized as the actual heir. According to the law, as noted above, we do not have the necessary heirs; although the law in other cases mentions direct heirs (Article 1054 of the Civil Code), this name is devoid of legal meaning, because they are not granted special rights and it is not explained who the direct heirs are. 1. The intended heirs of the owner do not have, until the opening of the inheritance, the right to claims arising from the quality of heirs. The opposite would mean that there may be a split in the civil personality, and that this split limits the unity and free will in the person of the owner. Therefore, the presumptive heir does not have the right to challenge the civil action of the owner on the estate, and the rights of third parties based on this action, for example. donation, sale made by the owner. The right to such a claim opens up for the heir only from the minute the inheritance is opened (therefore, from that very minute the limitation period for him must be calculated). At least even the estate to which the owner’s action related turned out to be a family estate, and this circumstance does not give the putative heir the right to sue. There is, however, a special category of estates that are recognized as the property not of one person, but of an entire family or family - reserved estates; these estates, during the life of the owner, contain the legal and not supposed, but actual right of his heirs, and therefore it is impossible to deprive the heirs of the right to challenge, during the life of the owner, his orders tending to violate reserved rights. 2. Any agreements and records about an inheritance that is about to open cannot have force, since one can only express one’s will about property to which there is a valid right; In addition, the law does not allow such agreements for moral reasons. Therefore, it is hardly possible to give decisive force to the renunciation of the inheritance, even if this renunciation was announced before the patrimonial owner himself and before the other supposed heirs. Until the right has yet been discovered, it cannot be allowed to dispose of it, and renunciation is a concession of right or a deviation from right. According to Roman law, renunciation of an expected inheritance was allowed with the consent of the person from whom the inheritance was expected. Our law does not provide a reason to recognize such a renunciation as valid: in essence, it will not be a unilateral act, but an agreement or contract regarding the expected inheritance. A) During the life of her husband, Alexandra Gavrilenko filed an appearance petition with the District Court that she grants the heirs by husband who will receive the family estate, either to allocate to her a specified portion of it, or instead to give her 21,000 rubles. Subsequently, when dividing the husband's estate after his death, his heirs on this basis refused to allocate the specified portion to the widow. But the Senate, on the basis of 1148, 1159, 709 (according to the 1887 edition, art. 710) and 1104 art. Zach. Citizen, recognized this application of the wife to cede her share from her husband’s estate, during his lifetime, as invalid (decision of the Sen. General Assembly of 1874, in the case of Gavrilenko and Strukov). B) Book. Golitsyn, during the life of his wife, entered into a condition with her regarding the allocation of the seventh specified portion of the real estate to her. estate or money for it, and the wife refused further participation in the inheritance after her husband. Such an act, subsequently challenged by the husband, was declared invalid by the Chamber (and then the Senate) in violation of Article 709. (according to the 1887 edition, art. 710) I part. X volume. Cass. r. 1872, N 1096. C) In the western region, under the Lithuanian Statute, lifelong ownership agreements, or so-called ones, were in use. surviving records, especially between spouses (Lithuanian Stat., Section V. Art. XVII, § 1; Section VII, Art. I, § 1), stating that the estate of one person should pass, upon his death, into the lifelong possession of another surviving person, and vice versa. In 1869, by decision 1 General. Collection The Senate for the village of Vyrzhikovskaya recognized that the succession of an estate based on such an act, as based on an agreement, is not due to the inheritance. Therefore, it is recognized that when the estate of a criminal’s husband is confiscated, his wife, based on the estate received from her husband on the basis of such an act, cannot be placed in the category of persons deprived of participation in the inheritance after a political criminal; that the treasury, through confiscation, could receive the property of a criminal only within the limits of the rights and obligations in which he himself was at the time of his political death, therefore, it did not have the right, at its unilateral discretion, to destroy the lifelong agreement, which Wyrzhikovsky himself did not have the right to destroy. The renunciation of inheritance has legal force in only one case, and in this case this renunciation cannot be called preliminary. According to our law, it is permissible to precede the inheritance with an allotment; but with allocation, at the will of the patrimonial owner, the hereditary share, during his lifetime, is transferred into actual possession and ownership of the nearest heir; therefore, in these cases, patrimonial rights to the estate are actually transferred to the allocated person, and it is up to him to consider himself, for his share, completely satisfied and not demand anything more when dividing the estate, upon opening of the inheritance, among other heirs (Articles 998, 1002 of the Law). In the person of the insolvent debtor, his own accession to inheritance rights is eliminated or limited. Everything that comes to the insolvent person by inheritance during the competition is included in the bankruptcy estate (Const. Court. Trade ed. 1893, art. 571). At the end of the insolvency proceedings, the unfortunate debtor is restored to his rights (621), and the careless debtor, who subsequently inherits it, is given the full satisfaction of his outstanding previous debts (623). This rule is somewhat modified in relation to a careless debtor in a non-mercantile capacity. If he receives an inheritance, he is taken into custody, of which, until his death, only 1/5 of it is turned over to his family for his benefit, and the rest goes to pay off debts; upon death, payment of debts is stopped. Zach. Court. Citizen Art. 527, 528. § 45. Measures to protect the discovered inheritance. - Inventory. - Calling the heirs. – Confirmation of inheritance rights. – Deadline for the appearance of heirs and the entry of those who have appeared. – Special rules for the merchant class Between the opening of the inheritance and the entry of the heirs into it, there may be a more or less long period of uncertainty about who should be considered the owner of the remaining estate, and there is no one to guard the estate. In this case, measures are taken by the competent authority to protect the estate in favor of the heirs. According to the old order, these measures were taken by the police and the court: according to the new order, they are taken by a magistrate in the order of protective proceedings. These measures are: firstly - inventory and sealing of the estate, secondly - calling the heirs (1224, 1225 Zak. Gr.). In essence, it is impossible to foresee in advance which heirs will appear and who exactly, and therefore it would be necessary in all cases to take measures to protect property. But the law says (Article 1226): an inventory and sealing of property is carried out: 1) when there are no heirs at the opening of the inheritance and 2) when the property, by law, must go into trusteeship. If some of the heirs are absent or there is doubt as to whether they are all present, the movable property of the deceased must be subject to an inventory. According to the new procedure, the magistrate begins the inventory (through a bailiff), having received notice of death (1227 Zak. Gr.; 1403–1407 Art. Est. Court. Civil.), and in areas where the provision on zemstvo chiefs has been introduced, the zemstvo chief (Law. Civil., Art. 1227 note, according to Cont. 1890). In Art. 1231, 1234 and 1238 Zak. Citizen Some features have also been established regarding the inventory and protection of property under various conditions, namely after persons who died on the way and on the ship, after spiritual authorities, after the owners of factories and manufacturing establishments, after Russian subjects who died abroad, and after foreigners in Russia. The preservation of the described property is entrusted either to the existing heirs, or, when there are no heirs in mind, to an outsider, for example, the owner of the house (Cass. decision 1867, No. 384; cf. Law. Civil, appendix to Art. 1227, Art. 7). The estate of a person who is missing is taken into state custody (1243 Gr. Law). The inventory of property, together with the proceedings, is submitted according to the old procedure to the judicial place in charge of which the property is located (in accordance with the order of patrimonial jurisdiction); according to the new order - the justice of the peace, in whose area the inherited property is located (the expression is vague, because after the deceased the property could remain in different localities and areas). The court (or judge) makes an order to summon the heirs through the Senate Gazette (public gazette). The assumption that all heirs are unknown should be allowed in any case; but in 1239 Art. Zach. Gr. it was decided that the challenge is made in three cases: 1) when all the heirs or some of them are absent (obviously, the assumption of this should be allowed in all cases without any difference, and therefore this one reason is sufficient to make the challenge in all cases; and then there would be no need to mention the subsequent two reasons); 2) when the deceased left capital in the State Bank; 3) when he has not redeemed the things pledged and overdue in the Loan Treasury. These same three reasons are referred to in Art. 1401. Est. Gr. Court., from which it can be concluded that in these cases the summoning of the heirs is obligatory for the magistrate, but in the next article, 1402, it is said that the judge (in addition) makes an order to summon, at the request of private individuals, at the request of the police, at the request of the prosecutor's supervision or the authorities of the deceased. For the specifics of calling heirs after those who died in military service and lower military ranks, see the note to Art. 1239. Zach. Gr. 66 In addition, there are special rules on the storage and distribution of property after killed and deceased ranks in the regiments of the Don Army (cf. 1219 Zak. Gr.); on the opening and acquisition of inheritance in property remaining in provinces and regions with special rights, after the death of natives of the provinces with common law, and vice versa (1279–1286); remaining after persons installed in the Empire, temporarily staying in Poland or Finland, and back (1287–1295); on the protection of property after the deceased in the Krasnovodsk District. 1870 Apr. 24 (48280). Reference made in 1401 Art. Est. Citizen Court., in connection with Art. 1403, on Art. 1239. Zach. Citizen, may be confusing. One might think that an order for protection must certainly be made when the deceased left capital in the Bank or unredeemed items in the Loan. Treasury. Obviously, such a conclusion would be unfounded. In the above cases, it is necessary by law to call the heirs to protect the banking interest; but there is not the slightest reason for this reason alone to take measures to protect the entire inheritance. From the above articles one should not conclude that security is always connected with a call. The calling of heirs has its own special meaning and may. made and will protect without acceptance. measures when they are not required (Cass. decision 1871, N 421). If the whereabouts of the absent heirs are known, then, in addition to publication, they are also called through the local police. Publication is also necessary because it determines the period for the appearance of the heirs and for the approval of the appearing heirs in their rights to the distribution of the inheritance. Those who have appeared within six months from the time of the last printing in the statements can ask that, without waiting any longer, they be allowed to take possession; and if the property was in their hands, they have the right to consider themselves owners, given the indisputability of their rights (1241). For special rules on summoning foreigners who died in Russia, see Art. 1247, 1248. Zach. Gr. Conventions on inheritances concluded with foreign governments contain rules on the procedure for the protection and inventory of inherited property by local authorities together with the consul of the subject country or without him in his absence; on the deposit of property to the consul and on the right of the latter to sell movable things that are subject to damage, and to charge to the estate the expenses required in the event of death (cf. Ordinance of the Consular Edition of 1893, art. 2, note 2). If within a 6-month period no one comes to search for the inheritance, the remaining estate should (according to the general rule 1243 of Article 1243 of the Law of the Civil Code on missing persons) be taken into state custody (to the guardianship department). The estate comes into guardianship in a dispute over inheritance, in the cases specified in 106614, 1098–1103, 1300 Art. Zach. Gr. and 397, 398 art. Zach. Court. Citizen It is prescribed to take into guardianship populated estates inherited by non-hereditary nobles, pending the completion of an act of redemption of peasant lands or until the alienation of the estate by the owner to a hereditary nobleman (1304 Art. Zak. Gr.). A) Application of Art. 1226 Zach. Gr. is associated with important difficulties due to its vagueness. Under the old order, the estate was usually left, without an inventory, in the possession of available heirs when they were present, and in this case it was not worth much difficulty to eliminate the intervention of the police. This made the position of the heirs easier, but, on the other hand, there were many cases and reasons for theft or concealment of property. On the contrary, with the introduction of world institutions, 1226 Art. began to be applied with excessive severity. Indeed, its text in many cases provides the same basis for both eliminating the inventory and demanding an inventory. With the new rules of legal proceedings in place, there were more reasons for executive officials to fear liability for failure to comply with an important formality, but on the other hand, there were also new personal incentives to demand its obligatory observance, since the collection of a fee in favor of the bailiffs is connected with the preparation of the inventory. Therefore, it is not surprising that today the magistrates’ courts require an inventory of the opening inheritance with excessive severity, which in other cases resembles pretentiousness. There is a lot of grumbling and complaints about this, especially in the case of the inventory of small inheritances, which do not correspond to the costs of the inventory and the hassle; however, it is difficult to satisfy these complaints on the basis of the current wording of Article 1226. It would be necessary to express it more definitively. For this, it might be necessary in our law to establish the distinction between direct and indirect heirs adopted in other legislations and to provide the direct heir with the legal opportunity to take possession of the estate directly, with the assumption of responsibility to others who may appear, and at the same time reduce the costs of inventorying small inheritances. B) Protection of the inheritance by executive order serves to protect the integrity and to make known the amount of the inherited estate, in the interests of those persons who can appear as heirs and be recognized as heirs, or third parties who have an open and declared right to collect their personal claims from the inherited property. Therefore, protective proceedings can be initiated, firstly, without anyone’s request, solely at the discretion of the justice of the peace, when he was notified of the opening of the inheritance. If, at the same time, the justice of the peace may have a personal conviction that besides the present heir, who already owns the estate in this capacity, there are no other heirs, and there are no other interested persons in mind, then it seems to be up to him, under his own responsibility, to remove the protection. Secondly, protective proceedings can be initiated upon the application and request of interested persons who have a claim to the inheritance or to it. Thirdly, finally, it can be initiated in the interests of the actual heir himself, who has already entered into the estate, in order to protect him from claims that may subsequently arise against him from co-heirs or creditors who appear. It should be noted, however, that the mere failure of the alleged heir to announce the opened inheritance does not in itself impose on him heirship liability to the creditors of the deceased or liability to the heirs who will appear. The former must also prove that he entered into the inheritance by deed itself; the latter are obliged to prove that the composition of the hereditary estate shown by them was really such at the opening of the inheritance, and decreased precisely due to the fault or negligence of the guilty person (cf. Cass. decision 1870, N 1583). The rules of protective proceedings for bringing to knowledge the opened inheritance, in the strict sense, apply to such a state of the inheritance in which it consists of a directly opened inheritance, i.e. a mass of property that no one knows who will belong to; but when the hereditary property, after the death of the patrimonial owner, has already come into the possession of another person and is registered with him as his hereditary property, then bringing this property to notice and protecting it with an indisputable protective order cannot take place (unless at the request of the actual heir who entered into the inheritance), for it is inconsistent with the essence of the indisputable order. The heir can take possession of the inheritance directly and without asserting the rights of inheritance, thereby assuming the responsibility associated with accepting the inheritance. Then he, as an heir, enters into a legal state of ownership, which cannot be violated by the action of the executive power, in the manner of indisputable proceedings. It is necessary to proceed to this possession, in case of denial of the owner, no other than by the claim of the person who is with his own hereditary title to the same estate, and the order for the protection of the hereditary property, among the entire mass of property of the person who owns it, can no longer follow except by order of the subject court in the manner of judicial proceedings. These considerations are confirmed by the decision of the Citizen. Cass. Dep. Senate 1870 N 1892, in which such a case was discussed. According to the grandfather's serf will in favor of his son, who accepted the inheritance, the grandson of this grandfather owned the estate; but 20 years later, after the death of this grandfather, a decision was made by which the grandfather’s will was not recognized as a serf, but was left to ask for approval as a household one. Regarding this decision, the legal heir of that grandfather turned to the magistrate with a request to protect the inheritance, which had opened 20 years before. The Senate declared the order of the magistrate to satisfy this request illegal. In 1871, a request was made to protect the inheritance, which opened in 1856. The Senate recognized (Cass. decision 1872, N 1048) that protective measures are assumed to be necessary immediately after the death of the owner, and therefore the present case does not relate to protective proceedings, and the adoption of protective measures 15 years after death was not mandatory for the magistrate. C) The practice of conservation has already raised many controversial issues and confusion. In what cases should you and in what cases should you not start protecting? What should be inventoried and sealed? How to satisfy the claims of third parties for things found in the property of the deceased? To whom should the described property be deposited? What to do in cases where economic management of it is required, continuation of business, fishing, trade, protection of the right associated with ownership (for example, deadlines for obligations and debt claims, etc.), fulfillment of necessary expenses, etc.? In what order and by what authority is the transfer of property carried out upon the appearance of claimants to the inheritance or upon presentation of a will? All these questions still pose difficulties for our practice (see the detailed articles on this by G. Zakrevsky and Gerard in the Journal of Civil and Criminal Law, 1872–1874). The legislative power is required to clarify and supplement those principles that are outlined so far in a few, very unclear features in the statute of protective proceedings of 1864. At that time it was assumed that the principles of this business remained the same and that it did not require a new organization. But the previous principles, very unclear, were sufficient under the action of the previous bodies of judicial proceedings and turn out to be insufficient for the new ones. G. Zakrevsky in his article (Journal of Civil Law 1874, No. 2) also presents draft provisions that, in his opinion, should be supplemented with the current legislation. In general, in judgments about this important subject, two opposing opinions are expressed. Some look at the protection of inheritances as a measure taken by order of the authorities, to the interest of unknown persons who may have the right to inheritance, and to the protection of property from theft, which is supposed to be possible in any case. From this point of view, protection is considered desirable in any case, even if it is a constraint for private individuals, just to ensure the integrity of property. The magistrate is placed in the position of a guard, from whom not a single death in his area should be hidden, so that the immediate adoption of security measures is not missed. In this form, of course, the measure of protecting rights would lose its civil significance and would turn into a measure that is restrictive for private law. The harm from protection would become more noticeable than the harm that is supposed to be prevented through protection. There is another opinion that is much more fundamental and closer to the purpose of the civil law on protection. The purpose of the law on protection, like any civil law, cannot be unconditional. Legislation cannot set itself the goal of protecting any civil rights in property through supervision, guardianship and the adoption of police measures. The execution of such a task would exceed the means of state power, and by the very nature of the matter would be impossible. The government can take into its jurisdiction and supervision properties that are completely ownerless; but if it proposed to extend guardianship to all property for which there is no legal owner with legal title, it would put itself in extreme difficulty, and the freedom of private ownership would be excessively and unreasonably constrained. Therefore, the law of protection of inheritances must be looked at, first of all, as a tool through which private interested parties are allowed to protect their rights. Then there may be cases in which the subject authority (now the authority of the magistrate) can, at its own discretion, take measures to protect the inheritance, and these cases must be associated in law with circumstances allowing for the assumption that the property is ownerless, or that its true legal successor is unknown. Moreover, the security itself should not exceed the necessary measure of limitation and constraint. The purpose of the law is not to ensure that property is preserved unconditionally, but mainly to ensure that it does not remain without a responsible owner, manager or owner until the identity of the legal and indisputable successor to the deceased is revealed. D) In ​​the Lisin case (Cass. decision 1868, N 602), the Senate recognized that, by force, 1226 and 1239 art. Protective measures are not always required in all cases. It depends on the discretion of the magistrate, guided by the evidence presented from the present heirs, if they eliminate any doubt that there are no absentees, and the fear that the interests of the absent and incomplete ones may be violated, to take or not to take legal measures to protect the integrity of the inheritance: These measures should be taken only when they are caused by legitimate real necessity. Wed. also Cass. decide 1869, N 1170. E) Taking measures to protect the inheritance, although at the request of the police, depends on the discretion of the world. judges, in accordance with the law, indicating in what cases and under what circumstances protective measures are required. Cass. decide 1868, N 602. When the estate, after the deceased patrimonial owner, by virtue of a will, came into the lifelong possession of the widow, according to the inventory, in accordance with 4 paragraphs of the appendix. to Art. 116 Gr. Zach. (according to the 1887 edition, Art. 5331), then the magistrate has no reason to then take measures to protect this property in the interest of the legal heirs. Cass. decide 1870, N 1251. E) Although the protection of hereditary estate 1403 Art. Est. Citizen Court. indicates to carry out simultaneously with the summons, but this is of course about those cases in which the magistrate recognizes by law that it is necessary to take protective measures, but there is no such rule in the laws that the summons cannot be made regardless of the protective measures, and there may be cases in which it does not seem necessary to take measures to protect the inheritance that has already been taken into the possession of the present heirs and is in their possession, but the summons turns out to be necessary to confirm their rights, upon preliminary announcement of the opened inheritance. Cass. decide 1871, N 421 and dec. General Collection 1870, N 10. G) since the purpose of protecting inherited property is to preserve it, the magistrate may authorize the sale of the property described by the protective order when, by its nature, it is subject to damage. Cass. decide 1869, N 649. H) The right to request recognition of rights to inheritance through protective proceedings is not limited to the expiration of the 6-month period for calling the heirs. Cass. decide 1869, N 15. i) When there are minors among the heirs, the estate, when protected, is subject to an inventory, even if in addition to their heir, their father, with whom they are located, was also an heir. Cass. decide 1871, N 151. J) Due to the opening of the inheritance, certain rights of the deceased are suspended until the legal representative of the person of the deceased appears. This is how procedural rights stop. See Set. Gr. Court. 77, 681, 752, 959–961 . But in some cases, even before the approval of the heirs, it is permissible to request the appointment of a guardian to the remaining estate, who is the representative of the person of the deceased in court. Est. Citizen Court. 751, 752, 959–961. The state of the inheritance from the time of its opening, until the appearance and entry of the heir, arouses bewilderment: on what grounds can third parties who need to exercise their rights bring a claim against the deceased owner? When, after the death of the patrimonial estate, there are no heirs and the heirs do not appear soon after being summoned, the inheritance does not have a direct owner and representative, and there is no direct law stating that in such cases the entire estate must be taken into the guardianship department. This would result in extreme inconvenience for all persons who have a property matter before the deceased patrimonial owner; but the law does not deprive such persons of the right to justice at a time of uncertainty about the heir; on the contrary, in Art. 215 Est. Gr. It was decided that claims against the person of the deceased owner, if there are no recognized heirs who have taken possession, are brought to the court in whose department the inheritance was opened. This article does not indicate, however, who should be the representative defendant in that claim for the deceased patrimonial owner. The defendant must be a guardian if the estate is under guardianship. If it did not enter the guardianship, then, according to the rule adopted in practice for the publication of new ones. Est. Court, the plaintiff can apply to the guardianship with a request to appoint a guardian for the opened inheritance, and then the appointed guardian is a defendant in court in his claim. There is no other way; however, it is obvious that in these cases the guardian cannot be the unconditional representative of the person of the deceased in the claim brought against him by the latter, and on the part of the guardian responding in court, both abuses and omissions are possible, which may subsequently serve as a reason for the restoration of procedural rights for the legal heir. For example, when the guardian appointed to the estate admitted the claim brought against the deceased, or allowed the claim to be awarded in court, the heir who appeared subsequently may ask, as a third party, for the restoration of the proceedings or may hold the guardian accountable when the latter, through negligence, failed to present the evidence against the claim available in the affairs of the deceased (cf. Cass. decision 1869, No. 883). K) What to do when several conflicting claims are made under protective order for the approval of several persons in the rights of inheritance to the same estate? In the old procedure, the court was able, having examined the dispute, directly, in its own proceedings, to turn the case from an indisputable order to a controversial one (Articles 390, 393 of the Law Court. Civil). In the new order, this is impossible, because in order to start a lawsuit, it is imperative to file a special petition for this end, a deliberate statement of claim. Therefore, in practice, in such cases, the court closes protective proceedings, allowing the litigants to assert their rights through a controversial judicial procedure. But here a new difficulty arises. In every claim there is a presumptive defendant. Who should be considered a defendant in an inheritance claim? The answer is clear at first glance: in patrimonial claims for property, the demand is addressed to the one who owns the property, because in essence of patrimonial law, property is obtained from any person who has it. There can be no bewilderment when the inherited estate, after the death of the patrimonial owner, has already come into someone else's possession under private law: it is obvious that a claim must be brought against the owner, although the jurisdiction of cases of this kind is determined by the patrimonial principle, i.e. at the place of opening of the inheritance (215, 1401 art. Ust. Gr. Court.). But if the estate has not yet come into anyone’s possession, but is in the state of an open inheritance, under the management of a guardian, who should be considered the defendant in an inheritance claim? Such a case occurred in the Vargunov case (Cass. decision 1870). The court, having observed in the protective proceedings that there were several claimants to the inheritance, did not approve any of them in protective proceedings and sent them all to litigation. But only one of them declared his rights through a lawsuit, designating as the defendant the guardian assigned to the hereditary estate; other persons who declared themselves in protective proceedings did not declare their rights in a claim. In such circumstances, the plaintiff has no one to name as a defendant, except the guardian, who is in charge of the estate, because the protective order is closed to him, and in the lawsuit there is no consideration of either the heirs of the owners or the heirs of the claimants. The court may recognize the guardian as a party and rule on the right of the plaintiff; if other claimants appear during the proceedings, then each of them, in turn, will become plaintiff and defendant against each other: this is the property of any joint claim for the same estate (mixed claims). In any case, the decision on inheritance rights that follows in court will have only conditional significance, as long as there is still a legal opportunity for a new heir to appear on the same estate and declare his exclusive or joint right with others. Is approval necessary for inheritance rights? Our legislation does not know (existing, for example, in French law) the legal distinction between direct, or existing, and indirect heirs, and we have no reason to say about them that such and such enters into the inheritance, and such and such requires recognition and approval. Without a doubt, there is, in the very essence of the matter, a difference, for example, between a natural son, the only heir, who lived with his father and is with him at the moment of death, and between a great-nephew, who comes to the inheritance from the outside, having learned about the death of a relative, perhaps unprecedented during his lifetime: the former has no need to ask who he is, and the latter cannot avoid this question. But this difference is factual, not legal; in a legal sense it does not exist. Both for the actual heir, and for many other persons whose interests are connected with his entry, it is necessary that he enter into the inheritance not silently and not unannounced, but from a state point of view - the hereditary transfer of property is more important than any other transfer of property rights; Consequently, the interest of public order requires that anyone approaching the inheritance, as a known heir, give his name and justify it. This is how our old practice always understood inheritance. Without a doubt, in many cases, the children and close relatives of the deceased, if they were with him at the moment of death, entered into the inheritance by themselves, and it remained with them without special approval, in the absence of a dispute, although in the event of a dispute there were always disadvantages of such an undecided entry; but judicial practice has always adhered to the idea that the heirs must be recognized and approved by the court 67. This statement was made by the court in the manner of indisputable (what is now called protective) proceedings. The inheritance, upon discovery, came under the jurisdiction of the subject court, to which the putative heirs applied for approval, presenting documents about their quality (metric certificate, pedigree, etc.) necessary to justify their name as heir, and the court’s business consisted only in certifying the right, unless, moreover, a dispute was declared by another person on his behalf in the rights to the same estate. Upon publication of the new Constitution. Court. Gr. Book IV (Judiciary protective article 1408) says: the heirs of the deceased who appear when summoned, if they consider it necessary to seek the assistance of the court to determine their rights to the inheritance, declare this to the court. A) Interpreting this article, Cass. Dep. The Senate (1867, No. 177 and No. 75) recognized that since the court is obliged to take measures to protect the inheritance, it also participates in the approval of the heirs. After the magistrate has taken protective measures on the opened inheritance, it can be transferred to the heirs who have appeared only by order of the subject court, which, in this case, “does not enter into consideration of the legality of rights, but recognizes only in an indisputable manner the right of inheritance to the protected property. Such recognition or determination of inheritance rights seems necessary in order for there to be a judicial act, and in order to prevent incorrect orders regarding the transfer of property to third parties who do not have rights to it.” It is also recognized here that the jurisdiction of these cases is distributed between justices of the peace and district courts at the beginning of the assessment jurisdiction, by virtue of paragraph 1 of paragraph 29 and 202 of Art. Est. Citizen Court. See also 215, 216 Art. In the said decision it was recognized, therefore, that it is necessary to ask for confirmation of the rights of inheritance, even if there was no dispute about the inheritance. However, in other decisions (1867, No. 384), the Senate recognizes that “as long as there is no dispute about inheritance, laws do not establish mandatory approval of inheritance rights.” In other cases, it was recognized that when the inheritance includes real estate, then approval in it is in no way subject to the department of the magistrate's court. Cass. decide 1868, N 238. B) In the case of Luba (Sb. Sen. decision vol. I, No. 300) it is recognized that direct entry into possession of the hereditary estate applies only to the heirs who are present at the opening of the inheritance and whose right is not subject to doubt; but whoever appears after the 6-month period established for the transfer of the estate to the available heirs must properly prove his inheritance rights. Это воззрение на предмет слишком обременительно для бесспорных наследников и переходит меру требования закона. The matter seems simplest, it seems, in this form. Heirs are direct and cash, i.e. бывшие при умершем, жившие в дому его (напр., сын, дочь и т.п.), имеют и фактическую и законную возможность вступить прямо, бесспорно и без формальностей, в наследственное после него преемство. Наследнику, хотя и не жившему в доме, но наличному (т.е. живущему в том же городе, уезде и пр.), труднее это непосредственное вступление, особливо когда он неизвестен или малоизвестен в дому, но нельзя сказать, чтобы и для него такое вступление было невозможно, если он прямой наследник, является вслед за смертью и не встречает противодействия или спора. Но когда человек умер и наследников никого нет налицо, положение являющегося впоследствии по вызову лица делается затруднительнее. Он становится претендентом на наследство, ввиду образовавшегося уже управления наследств. property. There is no need to bring a claim for inheritance, because there is no one else to bring it to: it is enough to declare your rights in an indisputable (or, in our new language, in a protective) manner and ask for confirmation of rights and for taking possession. The heir who appears before the expiration of the 6-month period will be in this position; but there is no reason to burden this situation for the one who appeared after this period, if, after all, he appeared first, and no one else had previously taken possession of the inheritance and was not confirmed in rights. The law does not at all attach to the 6-month period the significance that indisputable proceedings are possible ahead of it, but impossible behind it. Whether within this period or after its expiration, it makes no difference who did not appear first, but having appeared, he found the estate already in the possession of another heir, and is forced to turn to the person in possession in order to either oust him altogether or share the ownership with him. Is this recourse required to be made in no other way than in the form of a claim? I don't think it's necessary at all. The law does not at all imply that in all such cases the matter is controversial. There may not be a dispute at all. The heir who appears again has the full opportunity to either take possession directly and even silently, with the consent of the person whom he already finds in the inheritance and in cash possession, or to ask for confirmation of the inheritance in an indisputable manner, pointing out to the court the heir who has already taken possession, if he does not foresee a contradiction on his part. In this case, the court must present this request to the actual owner of the inheritance and, if there is no contradiction on his part, proceed to verify the rights of the petitioner (i.e., to certify his family connection with the deceased), in an indisputable manner, and indisputably admit him to the inheritance to the extent not denied by the actual heir. The court has a legitimate reason to refuse the petitioner an undisputed approval only in the case where there is a contradiction on the part of the owner. When, at the very opening of the inheritance, security measures were taken at the discretion of the magistrate, the possibility of direct actual entry into the inheritance is eliminated, but it does not follow from this that the heir could enter into the inheritance only by a court verdict. The magistrate may, without further proceedings to certify rights, transfer the inheritance to the person who appears, if he personally does not doubt his rights to the inheritance (cf. Cass. decision 1872, No. 277); if in doubt, he can demand from him a certificate of right, i.e. decision of the subject judicial authority, although in an indisputable manner, on approval of the rights of inheritance, and when such a certificate is presented, does not have the right to refuse the petitioner. In Cassation. decide 1869, No. 15 and 1876, No. 483 The Senate explained that, after the expiration of the 6-month period, there is no need for the appearing heirs to ask for confirmation of inheritance rights through litigation, but they can, if there is no dispute, ask for this in a protective manner. In the case of Shcherskaya (Cass. decision 1870, N673), the Senate recognized that there is no rule in the laws that no one can enter into the use of inheritance rights without a court verdict, but on the contrary, the possibility of accepting an inheritance by directly taking possession and use of the estate is allowed (Articles 1254, 1261 of the Civil Code); from this the Senate concluded that there is no need to require from persons seeking inheritance law, when filing a claim, certification that they are approved heirs; in the event of a dispute about their inheritance rights, this dispute is resolved by a court verdict. This rule seems to be quite sound. A person who calls himself an heir and is not recognized as an heir by those against whom he makes his claim based on the right of inheritance is obliged to certify this right, but there is no reason to demand that this certification be declared in an indisputable form, i.e. in the form of a verdict that has already taken place in a previous dispute. To demand this from the plaintiff would mean to arbitrarily delay the commencement of the claim to the benefit of the defendant, which the law does not provide him with (cf. Constitution of the Civil Court. Art. 571), and to the embarrassment of the plaintiff, which the law does not provide. The question of the right to a claim on an inheritance, subject to doubt, is no different from other, so-called preliminary (praejudicialis) questions that may arise in a case and are resolved in it together with others, therefore, there is no reason to demand a separate resolution for the question of the right of inheritance, especially in the new procedure of legal proceedings, in which there is no distinction between claim and patrimonial cases. C) In 1867, Lev Maslenikov asked the district court, after requesting from his brother his documents for their house and land that belonged to their parents, to make a division of this estate according to the laws. At this request, the district court began to demand from the petitioner indisputable evidence of the rights to the inheritance and then, not being satisfied with the documents presented by him, decided to deny him the rights to the inheritance. The Senate (4th Dep. September 16, 1870) hardly recognized these arguments as correct. Given the presumed indisputability of the common ownership of the inherited property, the court should have presented Maslenikov’s request to his co-heirs and co-owners and then only if the rights to the inheritance turned out to be controversial, turn the matter to controversial proceedings, in which proof of inheritance rights would be required. D) Rights to the opened inheritance must be resolved on the basis of those laws that were in force at the time the inheritance was opened. On this basis, the Senate recognized that Maria Shamshieva, who married under the laws of Tsar Vakhtang (according to which a daughter who received a dowry during her father’s life does not participate in the inheritance with her brothers after his death), should participate, according to Russian laws, in the inheritance after her father, which opened when the laws of Tsar Vakhtang were replaced by Russian laws. См. реш. General Collection Sep. 1841 in the Svirsky case and 1861 in the Kashchieva case - Collection. Sep. decide N 75 и 685 и реш. Cass. Dep. in the village of Shamshieva 1869, N 1241. E) In an inheritance claim, there is no requirement to present evidence about what exactly the inheritance being sought is about and to what extent it extends. This is how the State Council decided (Highly approved Opinion July 30, 1862) in Strelkova’s case in such circumstances. In 1834, Zhdanov died, leaving 4 sons and a daughter, Strelkova, who died the following year, leaving 3 children. Zhdanov's sons accepted his estate, and in 1852, Strelkova's children sued for their next share of Zhdanov's inheritance in their mother's degree, claiming that in total they were owed about 60,000 rubles. The Senate refused them, recognizing that they had not proven the amount of their claim, but the State Council recognized this evidence as unnecessary and, in agreement with the Chamber, allowed them to take into account their inheritance share when dividing the inheritance. E) Confirmation of the inheritance by the order of protective proceedings is indisputable. It does not follow from this, however, that the court, regarding a request for confirmation of rights, should not enter into the consideration of these rights. He should not himself raise controversial issues relating to the interests of another person who did not appear at the case and was not in dispute with the petitioner. But the claim of the petitioner himself is certainly based on the legal relationship to the deceased patrimonial owner, from which the petitioner derives his right to inherit after him in a certain estate. Within the limits of this legal formula of the claim, the court has the right and obligation to carry out legal and factual verification of the claim. There was such a case. After the death of the Kugushev princes, their second cousins, also the Kugushev princes, laid claim to their inheritance in an indisputable manner. The district court considered that the inheritance consists of the family estates of the deceased, which came to him from the mother, and the petitioners belong to the father’s family, and therefore refused the petitioners. They complained and explained that the assertion of the rights of inheritance confirms only bona fide possession, but does not recognize the material right of ownership of the inherited estate, and therefore the court, in a protective order, should not require evidence necessary to clarify the right of ownership. This complaint was left without consequences by the Senate (Cass. decision 1872, N 1288). In the case of Counts Kapnist about the inheritance after the wife of Major General Sophia Skalon, nee Countess Kapnist, a Civil Code arose and was resolved. Cass. Dep. in the affirmative sense, the question is: can an heir who has asked for confirmation of his rights of inheritance in a certain share and, according to such a request, has been approved in a protective manner, can then demand, in a lawsuit, an increase in the said share to the legal size (Cass. decision 1893, No. 4). G) For jurisdiction in cases of protection of inheritance and assertion of rights, see my book Judicial Manual NN 124, 1490–1498, 1515. With the expiration of the 6-month period, heirs who did not have time to appear do not lose their rights. They retain the right to claim inheritance during the general zemstvo prescription (1241, 1244, 1246, 692); but then they should already begin to take possession of other persons, if others had time to appear before them and receive the property. The law does not clearly explain from what time the 10-year period is calculated: usually the beginning of this period is taken to be the last seal in the Senate Gazette about the summoning of heirs. But this formality is hardly of unconditional significance: the publication is made to announce the death and the discovered inheritance, but if it was not done in a timely manner (it often happened that there was no publication at all), then the lack of publication can hardly be justified in skipping the statute of limitations for such persons who knew about the discovered inheritance even without publication. So, for example, if a sister, together with her brother, being at the death of her father, left that brother in exclusive possession of his father’s property, and it has not been proven that she herself participated in this possession, her brother may reject her claim for inheritance after the expiration of the statute of limitations. It goes without saying that prescription has an extinguishing effect only on those rights of heirs that remained silent and without implementation. And since, according to our law, confirmation of the rights to inheritance is not required unconditionally, and the accession is accomplished by itself, there is no reason to blame the heirs and subject them to any statute of limitations for their failure to appear when called and failure to declare rights, if they themselves, as heirs, took possession of the hereditary property and remained in this possession (cf. Cass. decision 1873, No. 645, 1880, N 101, 1885, N 1). To Cass. decide 1877, No. 81, it is stated as a general provision that the limitation period is calculated from the date of publication, but if there was no publication, then from the day the inheritance was opened. Then, in decisions of 1877, No. 265 and 1879, No. 333, the Senate recognized that publication is made only for absent heirs, therefore only for them the statute of limitations is calculated from the date of publication, and for existing heirs, the expiratory limitation period is calculated from the day the inheritance was opened. According to the Senate, for everyone in general who knew about the opening of the inheritance before publication, it does not matter when calculating the statute of limitations. Special rules on the period for accepting an inheritance (1 year) after officials of the educational department; after those who died in hospitals and almshouses, as well as other institutions of this kind, see Art. 1251, 1253 Zak. Citizen The question may arise: whether, when approving the rights of inheritance by protective order, it is necessary to raise, at the discretion of the court, the issue of limitation, which, as is known, the court itself does not raise in litigation (706 Art. of the Constitution of the Civil Court). I think that it should not, because the question of limitation, i.e. on the extinguishment of the right to claim, refers to the negative side of any process and constitutes an accessory to the objection, which is declared and proven by the responsible party; Perhaps, when filing a claim, the plaintiff himself included in its form the question of limitation as follows: I have the right and have not lost it by prescription, for this reason and for this reason. So, if the request for approval of the inheritance was made unconditionally and after 10 years from the time the heirs were called, the magistrate’s court should not pay attention to the limitation period. Raising a question about it is the business of the one who appears as a disputant against the applicant for the inheritance and declares his rights to it, after the loss of the applicant’s inheritance rights (such a disputant can be the treasury, according to the right of escheat). The right to inheritance, in itself unconditional, is extinguished only by an unconditional statute of limitations. All other deadlines for appearing to receive an inheritance, to partition, apportionment, etc., have only conditional and particular meaning. In practice, confusion arose about this subject for the following reasons. Rules 7 Dec. 1867 on confiscation, it was decided that of the estates that are in common possession of the criminal with other co-owners not involved in the crime, only the part belonging to the criminal is allocated to the treasury. For this purpose, a publication is made from the court with a summons to the accomplices so that they, within 6 months, declare to the court their right to participate, with evidence, with the preliminary that after this period, the appointment to the treasury from the common estate of the part will follow an allocation with only those accomplices who declare their rights within the deadline. From these words of the law, the courts of the western region, under the influence of fiscal requirements, began to draw the conclusion that participants who did not appear on time decisively lose their rights to the estate, even if it was in their possession, in favor of the treasury. In this sense, many decisions have already been taken by which patrimonial rights were taken away from co-heirs who did not appear when summoned to share the treasury to the extent of one of the heirs being subject to confiscation. Obviously, such a conclusion could only come from confusing the concepts of inheritance with the concept of division and allocation of common ownership. Now, fortunately, the true meaning of the law has been restored by the decisions of the 2nd General Assembly. Senate (for example, according to the village of Volodkovsky, according to the village of Abramovich, 1871), which recognized that missing a 6-month deadline deprives those who did not appear only of the right to participate in the production of the division with the treasury, which is carried out without waiting for them, without stopping, but does not in any way deprive them of the patrimonial right to the estate and does not lead to the transfer of property belonging to them to the treasury. Upon approval of the rights of inheritance, the ruling of the court, or the certificate of approval issued by the court, is presented where it should be (709 Art. Zak. Gr. 1424 art. Establishment Gr. Court.) for entry into possession. Failure to perform this ritual does not prevent one from taking actual possession of the inherited property, but without entry, the owner may encounter difficulties when making deeds to the property. Confirmation of inheritance rights does not constitute a legal necessity in the literal sense. But it becomes necessary due to the disadvantageous position in which the successor of the estate is placed by the practice of Notarial Regulations, when he does not have an official document on taking possession. Current notaries, based on Art. 167 and 168. Notarial Statute, they absolutely require an introductory sheet from persons who perform acts of alienation of the estate, and without input they do not perform acts, no matter how indisputable the possession is. Therefore, the old and undisputed owners of hereditary estates are now predominantly placed in a difficult position to carry out acts. They have to, sometimes after long-term possession of the hereditary estate, ask for confirmation of inheritance rights and for entry into possession. The commissioning and transfer of ownership is published in the statements (see Article 1296 of the Legislative Code and the articles on commissioning in the 1st volume of this book). The input is generally important in that it serves as the basis and proof of legal ownership, and therefore, in any case, it is advantageous to have this basis and proof in one’s hands. The capital that belonged to the deceased under a note in the state debt book is transferred to each of his heirs, in accordance with the terms of the loan and the inheritance share of each, while maintaining the rule that capital cannot be divided into plots of less than 30 rubles. Est. Credit. ed. 1893, sec. II, art. 91, 112. To Cass. decide 1872, No. 277, it is explained that “taking into possession is not required by law to enter into an inheritance of real estate, for taking over (707 Art. Civil Code) is a means of strengthening the right of ownership of property, and the law does not prohibit the possession and use of property even without the final strengthening of the right of ownership of it; such strengthening is necessary only for the owner to acquire evidence of his exclusive right to real estate, against other persons, which is not at all necessary for the heir to take possession, whose rights there is no doubt.” From this it follows that the justice of the peace (on taking the property into custody), having an undoubted certificate of the rights of the applicant to the inheritance, does not have the right to then refuse to transfer the property to him and demand from him the submission of a writ of execution for taking possession. The Kotelnikov case, in which the above decision was made, provides an instructive example of confusion of concepts. The patrimonial owner who died in 1857 left a will. It was challenged and declared invalid in 1867. Then the heirs are called, and the inheritance is taken into custody. The heirs appeared indisputably, and the district court confirmed them in the inheritance. This would seem to be enough: the heirs would have the opportunity, on the basis of this indisputable certification of rights, to enter into the inheritance without formally taking possession. But the district court, having approved them, at the same time refused to enter them, firstly, due to the prohibition that appeared on the house, which was imposed on the occasion of a dispute over a will that had already been completed (this already expresses a confusion of concepts, since the power of the prohibition extends to acts of alienation, and not to legal inheritance); secondly, due to the insufficiency of the act of strengthening the house of the deceased patrimonial owner presented by the petitioners (again, a confusion of concepts, since verification of the indisputable rights of the deceased patrimonial owner to his property regarding the hereditary transfer to his heirs is not at all the duty of the court). Then, when the heirs with such a decision from the district court turned to the magistrate to transfer the estate to them, the magistrate refused to do so for failure to comply. entry sheet and (added a new reason) for failure to submit a separate act! Obviously, there is not the slightest reason to demand the division of the estate between co-heirs before transferring the inheritance to them, when the law allows them to own the inheritance in general, without division. Enough confusion, but when the heirs filed a complaint against the judge to the Congress, the Congress, refusing them, added, to increase the confusion, a new consideration and order. Having noticed that the judge mentioned the division and concluding that without the presentation of the act of division the judge could not allocate any part to anyone, the Congress ordered that Art. 1317 be applied to the case. Zach. Gr., that is, take the estate into custody for non-division! The confirmed heirs, having been brought into possession of the estate, must give way to others if others subsequently appear and prove their immediate right, based on the law of blood inheritance or on a will, hitherto unknown. But the heirs, according to the law, in this case are not responsible to the heirs under the will, either in income or in the management of property, until the dispute was brought to them; on the contrary, the previous owner has the right to demand compensation from the new owner for improvements to the estate. What was pledged and sold before the opening of a dispute is not returned; only the sale or mortgage price is reimbursed, without interest (Law Gr. 1300–1302). In the case of Kutuzov (Sb. Sen. decision vol. I, No. 261), his heirs, who did not ask for 30 years to take possession of the hereditary estate, were recognized as having not lost the inheritance right by prescription, because the publication about the summoning of the heirs was not made in a timely manner; At the same time, the Senate found that even before 1827, previous laws, starting with the instructions of the Office of Confiscation of 1730, prescribed that heirs must be summoned. But in the Terentyeva case (ibid. No. 404), where the acquittal of the applicants for the inheritance was based on the same objection, in the absence of limitation, this objection was rejected, since in the present case all the heirs were present at the opening of the inheritance and divided the estate among themselves peacefully, therefore, it cannot be objected that a challenge should have been made. In the Bolychev case (Sb. Sen. decision vol. I, No. 706), Wulf, Osipova’s heir, having taken possession of the inheritance, upon presentation of Bolychev’s claim to Osipova, without disputing it, avoided satisfaction and referred to the fact that Osipova’s heirs are not all present, that until all debts are opened, it is impossible to judge whether she still owes money to anyone, and before they are presented to all heirs, it is impossible to proceed with satisfaction. The Senate rejected these objections, accepting that the summoning of Osipova’s heirs, debtors and creditors had been published, and the deadlines under Article 1241 had already passed. 1 part X t. 6 months for the appearance of heirs and under 1007 Art. Zach. Court. Citizen (according to the 1893 edition, art. 504) 9 months for the appearance of creditors. Thus, the Senate attached the same meaning to the publication on the opening of inheritance as the publication on calling creditors in the event of non-commercial insolvency: hardly fair and thorough. The opening and acceptance of inheritance after persons who carried out trade has its own characteristics, established by the Bankruptcy Charter of 1800, in the form of protecting the interests of persons who had business with the deceased. For this purpose, special proceedings are established, which begin either at the direction and request of the creditors of the deceased, or at the request of the heirs, which are obligatory on their part; the purpose of this proceeding is to bring awareness of property and inheritance matters and to establish hereditary liability by recalling the acceptance of inheritance (Civil Law, Art. 1238, note 1, appendix, Art. 1–12). If the creditors have doubts after the debtor about the state of his affairs and property, which remains without an inventory, and announce in the proper court the number of their claims, then by order of the court, on the same day, an inventory of the inherited property must be drawn up in front of the creditors and sealed, and the heirs and other creditors are summoned with deadlines for appearance (3 months, 9 months, 18 months); If the heirs do not appear for more than 9 months, his creditors can receive a distribution from cash 68. By appearing, the heirs can satisfy the creditors or they can ask to be given time to look around. Then they are given a month's time and are allowed to see the property and debts with creditors. After considering everything, the heirs have no choice but to either accept the inheritance, with unconditional responsibility, if the creditors believe them, or to renounce; in the latter case, the insolvency of the hereditary mass is revealed (Civil Law, Art. 1238, note 1, appendix, Art. 1–5). Upon the death of a person who traded with a loan from others, his heirs are obliged, no later than the third day, in front of the police (or outside the city - in the presence of witnesses), to make an inventory of all the property, and within a month, after inspecting this property, they must give feedback to the police and the subject of the trial whether they accept the inheritance, or renounce, or still ask for time before further inquiries. Based on this review, and if the debts were announced, then on the first announcement of death, the court makes a publication, in accordance with Art. 1. adj. to approx. 1 to st. 1238 Zak. The citizen seals the property and leaves it in the hands of the heirs, and if they renounce or there is suspicion of them, he takes it into his care (vv. 7–9). If the existing heirs do not fulfill the above obligation or delay, without a legal reason, they are obliged, as stated in Article 10. “to be liable with the inheritance and personal property in all valid claims against the deceased.” These words, according to the wording of Article 10, are incomprehensible, because the heir, in any case, does not bear such responsibility; but they are explained and supplemented by the text of the quotation - Art. 165. 2 hours Bankruptsk. Ordinance, where it is said: we are obliged to answer: to the extent that it is prescribed to deal with the fallen, i.e. under insolvency law 69. These rules, apparently very imprecise and vague, have, one might say, fallen out of practical use and, for the most part, are not observed in practice. Special rules were established back in 1835 for the case when, after the death of the owner or partner of a commercial enterprise, minor or absent adult heirs are left. In this case, the other partner or the chief clerk is obliged, no later than the third day, to notify the court of the death and the state of affairs and books of the enterprise. According to the circumstances, the court must first of all decide whether to allow uninterrupted continuation of the business of the enterprise or to begin an inventory of property to protect the interests of creditors and heirs; then he proceeds to call the heirs, and upon their appearance, an agreement is made between them on the continuation of the case or on the division (Civil Law, Art. 1238, note 1, appendix, Art. 13–20). Inherited estate after the person who carried out the trade, if his debts are cleared, and the heirs did not appear within the period prescribed by Art. 1 adj. to approx. 1 to st. 1238 Zak. Citizen, enters into guardianship, and after the final 10-year period is sold at public auction, with the proceeds being used in favor of public charity institutions (Law Civil, Art. 1238, note 1, appendix, Art. 6). However, this rule, it seems, must be understood in the narrowest sense (in comparison with the general provision; see Civil Law on escheatable property of urban inhabitants) and applied exclusively to those cases in which there were circumstances foreseen by Articles 1–6 of the mentioned appendix to Art. 1238. A) The calling of the heirs is a formality observed on the occasion of the opening of the inheritance. The inheritance opens with death; therefore, with the death of a person there is a need for a challenge. By force of Art. 12 adj. to approx. 1 to st. 1238 Zak. Civil, when at the death of a person or subsequently legal signs of insolvency are revealed and it is declared by the court, then inheritance has no place. From this it is concluded (see the decision in the case of Andreev Zh. M. Yu. 1864, No. 7) that “on the death of a merchant, calling the heirs does not constitute a general rule, but the court itself, where the claims were filed against him, is given the opportunity to either call the heirs, if there are no signs of insolvency, or declare him insolvent, and inheritance has no place.” It is hardly reasonable to resolve in such an unconditional sense the question of a summons, for a summons is only a means of announcement, leaving open the question of the right to inheritance and its implementation. Without a doubt, the court in charge of the affairs of the deceased may consider it unnecessary to summon the heirs of the insolvent, but if someone, in order to protect their rights connected with the death of the deceased, wanted to summon the heirs of the insolvent, there would hardly be a legal basis to refuse him - especially since as the insolvency case progresses, the initial assumption about it may still be confirmed, and the liquidation of affairs and property may still clear the remains, the receipt of which cannot be eliminated heirs. B) The decision of the Senate in the Vonchakova case (Cass. decision 1870, N 244) says: as in 163 art. Est. Bargain. (Article 7 of the appendix to Note 1 to Article 1238 of the Civil Code, ed. 1887) states that the heirs are required to provide detailed notification whether they are entering into a full inheritance and payment of debts for the deceased, or do not accept this payment forever, or until further information, then this law undoubtedly establishes the possibility of conditional renunciation of the inheritance. § 46. Acceptance of inheritance. – The significance of calling creditors and some publications. – Feedback on acceptance and actions indicating acceptance The heirs have the power to accept or refuse the inheritance (1155). Both are actions of the will - in the first case positive, in the latter negative. But one should not think that the acquisition of an inheritance is based on this action of the will: its acquisition is traced back to the moment of its discovery. However, the acceptance of an inheritance has very important legal consequences, because with acceptance, the heir irrevocably enters into the representation of the deceased in property and loses the opportunity to renounce the inheritance; therefore, the acceptance of the inheritance decisively determines the relationship of the heir to the inheritance and to all third parties who have property matters with the deceased patrimonial owner. Acceptance of an inheritance, according to our current law, can only be unconditional (cf. Cass. decision 1878, No. 243). There is no middle ground between such acceptance and renunciation. Our law does not know the form of accepting an inheritance according to the inventory, with its legal consequences. That is why, in our case, the heir, in any case, must, before accepting the inheritance, make sure of the number of debts lying on the inheritance, for no matter how much he accepts, in terms of quantity, of the estate, in any case he will be obliged to answer unconditionally for all debts and claims that may subsequently arise. But such certification is extremely difficult and in most cases impossible given the existing lack of publicity of credit. Sometimes, for this purpose, publications are printed on behalf of the heirs calling on all creditors and debtors of the deceased so that they publicize their claims and debts; but such publications serve only as a private measure of publicity, having no legal significance for third parties, 70 and, no matter what deadlines are assigned according to these publications for the appearance of creditors, they do not lose anything by missing these deadlines, and the heir does not gain anything. Thus, it is impossible for the heir to make a correct accounting of the debts of the deceased in a timely manner; on the other hand, it is often impossible for him to take into account the quantity and value of the inherited estate, especially if, as often happens with us, the deceased himself did not keep proper management and records of it, and the law does not indicate the possibility of requiring, before acceptance, a detailed inventory of the inherited estate. Therefore, accepting an inheritance in many cases involves significant risk. A) The opinion of the State Council of 1860 (Article 2113 of the Civil Code) established the rule on calling receivers and transferors of property according to safe receipts in the following sense. In general, it is believed that the receiver is obliged to return what was accepted while he is alive, regardless of how long ago it was. But when he died, his heirs, in order to protect their right, are obliged, before entering into the inheritance, within 6 months from the date of its opening, to call the transferors according to the receipts of the deceased patrimonial owner. If they did not do this or, having done so, entered into the inheritance before the expiration of the deadline for appearing on summons, then they are obliged to answer according to the safe receipts presented. From here it seems to be concluded that if the heirs have complied with the law on summons, they may still, in view of the safe receipts, refuse to accept the inheritance; and whoever, when summoned, does not present receipts within 6 months, loses the right to collection. The heirs of the giver are obliged to make a similar challenge to the receiver for the safekeeping of the safe receipt left behind; If they do not do so, they are deprived of the right to sue on receipts, and those who made the challenge resume the limitation of this claim from the time of the last challenge. See Cass. decide 1867 г. N 160; 1869, No. 909, 1032. The decision of the Senate (Cass. decision 1869, No. 832) recognized that the summons of the person who accepted the property for safekeeping has no meaning for a person who, without a summons, has already recognized his obligation to return the property and has begun to fulfill it. B) Upon death, or upon deprivation of the rights of the state contractor, his obligations for the execution of the contract pass to his heirs, should they so desire. His heirs (together with the mortgagors and guarantors) are notified of this in the appropriate case, either directly at the place of residence, or through publication in the statements, so that within 4 months they can ask for the contract to remain with them; otherwise, the treasury proceeds with orders regarding the deposits (Pol. Treasury. Contract. Art. 194, 198). B) By force of Art. 6 adj. to approx. 2 to art. 420 Zak. Citizen (Article 290 of the Constitution of the Censor. Edition of 1857) those to whom the author bequeathed or assigned his work are obliged to announce this and certify it within the first year after his death, then in relation to this work they enter into all the rights of his legal heirs, and these latter can call them to appear within the prescribed period in the same way as other accomplices or creditors. Based on this article, the judicial chamber recognized that all acquirers of copyright must, like heirs, ask the court for confirmation of their rights, within a specified period, after the death of the author's transmitter. The Senate (Cass. Resolved. 1869, No. 178) recognized this reasoning as incorrect and confirmed that the law does not have a period other than 10 years, which would bar the right to claim an inheritance. When the acceptance of an inheritance is a mandatory act, then it should follow that only persons who are fully capable of performing civil acts and entering into obligations are capable of acceptance (and, on the other hand, renunciation). Therefore, for minors, the insane and the insane, consent or disagreement to accept the inheritance is expressed by the guardians appointed to them (1257). Our law does not determine in what form a positive will to accept an inheritance must be expressed. The law indicates the only sign of acceptance - the entry of the heir into personal ownership and use of property. In 1261 art. It is said: acceptance of an inheritance is considered when the heirs neither made a claim about non-payment of debts, nor retained the income from the estate of the deceased, but owned and used the property for their own personal profit. This law itself is unclear and raises the following questions. Is it possible, regardless of taking possession of property, to recognize a person as having accepted an inheritance by virtue of one revocation or application, and from what time does such a statement acquire irrevocable force? In the absence of an exact legal definition on this subject, it seems impossible to allow one vague statement of the heir, even made before the court, on his own impulse, to oblige him irrevocably, if it is not confirmed by action. Even the request of the heir who has appeared to confirm him in the inheritance does not in itself serve as an irrevocable act of acceptance, until a court decision is made to confirm his rights of inheritance. A statement of non-payment of the debts of the deceased, if made at all and at the heir’s own prompting, can also hardly be recognized as an irrevocable expression of will; Would he have followed the request of the creditors themselves, who wanted to make sure who should be accountable to them after the deceased? A notice given to an individual creditor regarding non-payment of a debt does not exceed the limits of the individual personal obligation. On the contrary, if the revocation is accompanied by taking possession, or, regardless of the revocation, there were actions on the part of the heir that prove ownership and use of the property for personal gain, then the acceptance of the inheritance is undoubted and irrevocable. The law says: personal profit, and thereby indicates the possibility of retaining property under management and disposal while preserving income, regardless of the acceptance of the inheritance. For example, the son of a deceased patrimonial estate may find himself in this position, remaining in the management of the property: he still has the opportunity to refuse to accept the inheritance, even if he managed it economically for some time, as long as it is proven that this management was not for himself and not for personal profit. Of course, this situation cannot last long, because interested parties always have the right to demand from the heir a positive announcement of acceptance of the inheritance. What actions show that the heir owned and disposed of the profit for himself is determined by the court in each given case. It seems that the expression “for personal gain” should be given the broadest possible meaning, i.e. there is no need to necessarily require confirmation that the heir received a real profit, which he took advantage of. It is enough to ensure that his will in action on the estate was directed towards personal profit, that he acted in his own name, as the owner and proprietor. Other actions, by their nature, correspond to the goals of protection and management, without implying the owner's autocracy and self-interest. So, for example, if the heir demands the assistance of the authorities in the protection, inventory of property and he himself participates in both, defends the interests of the estate in court or with the government, accepts incoming payments and income to preserve them, leases out economic quitrent items, even if he makes the necessary expenses for repairs and maintenance of the property, etc., there is still no reason to conclude from these actions that he accepted the inheritance. Other actions are incompatible with the quality of management and with the goals of simple protection, but require the full economic will of the owner; in this case, one has to either recognize in the action an abuse of power, malicious intent, a violation of someone else's right, or recognize in it the will of the full owner and the consciousness of property rights. So, for example, if the heir alienates or mortgages property, orders the release of forests for cutting down, makes deferments to debtors, etc., such actions cannot but raise assumptions about accepting the inheritance. So, without establishing a special form for revoking the acceptance of an inheritance, our law defines only the general characteristics of this action. As soon as these signs are present, acceptance is irrevocable, i.e. the person who accepted the inheritance in the sense specified in Art. 1261. Zach. Citizen, it is no longer possible to destroy the power of acceptance and evade its consequences. The decision of the Cassation Department of the Senate of 1867, N 384 recognized that “the event of acceptance of an inheritance is conditioned not only by the taking into possession, transfer of property and use of it for personal profit, but also by the fulfillment of obligations, both those lying on the inheritance and those established by the deceased owner, as long as they do not contradict the laws: This conviction is also led by the consideration that our laws do not allow the conditional acceptance of an inheritance before preliminary familiarization with the state of affairs, and therefore, the one who accepted the inheritance is honored not only by the one who took possession of the inheritance and took advantage of its benefits for personal profit, but also by the one who began to take actions and orders, as an heir, in relation to the fulfillment of the obligations lying on the inheritance.” So, one review of the acceptance of an inheritance in itself cannot serve as an unconditional sign of actual acceptance and the responsibility associated with it. This revocation is a legal action, an expression of will, obliging the performer, since this action affected the rights of third parties (for example, creditors who intended such a revocation, other heirs, etc.); to the extent that other persons suffered from this action, the performer of the action will be responsible to them. But still, this review, as stated above, does not yet acquire the force of a special legal action, with which the idea of ​​​​the unconditional transfer of inheritance rights is associated. This would be a formal force, which is assigned to such a revocation by foreign legislation, without allowing any objections and evidence that there was no genuine entry into the inheritance. Our law does not assign formal force to such a revocation; therefore, it does not eliminate even after the withdrawal of evidence that there was no entry into the inheritance. But if there was not only such a response, but also a formal petition for confirmation of inheritance rights and the confirmation of rights itself followed from the court, is it possible to allow such evidence even after that? I think it is possible, but not in all cases. A person confirmed at his own request in the rights of inheritance to the property left after the deceased is directly assumed to be the heir and responsible person after the deceased; therefore, the creditors of the deceased, having presented such evidence of hereditary transfer to a known person, do not then have to prove that this person has come into actual possession of the hereditary estate. A recognized and approved heir does not have the right to relinquish the title of heir and evade inheritance responsibility on the grounds that he has not entered into actual possession of the inherited property and cannot do so because another person or other relatives of the deceased have used that property. Still, the confirmed one will be considered an heir, and it will not be an excuse for him that he did not actually receive the property, for, having accepted the rights of inheritance, he along with them received the right to demand property from anyone who may have it; It depends on his will to demand or refuse the demand, if it is inconvenient, but still he cannot renounce the accepted title of heir and must be responsible for the debts of the deceased patrimonial owner. But he has the undeniable right to demand that another person, who also has inheritance rights, if he did not present them, but arbitrarily entered into disposal of the property of the deceased, was also recognized as an heir and a person responsible for the deceased, on an equal basis with the heir approved by his application; but until then, even this latter is obliged to answer for the debts of the deceased in indisputable proportionality. If the confirmed heir can prove that nothing was left after the deceased and that his request for approval of the inheritance to the property was based on a mistake, such an objection should, it seems, be allowed in view of Articles 1259 and 1261; but if any property remained after the deceased, or if the heir at least used something after his death, or if the remaining property was destroyed, destroyed, stolen due to random events, or third-party violence and did not go to the heir, all such objections cannot be accepted (cf. Kononova’s case in the Civil. Cass. Department. December 18, 1869, N 1266. Another Cass. decision. 1868, N 768). In Kassac. decide 1869, N 501 and 1872, N 1249 Senate, based on Articles 1259 and 1261. Z. Gr. and 1408 art. Est. Gr. The court explained that the responsibility of the heir for the debts of the deceased cannot be made dependent on whether the heir is confirmed in the rights of inheritance or not, and when filing a claim against the heirs of the debtor, the court must, according to the circumstances of the case, discuss whether these heirs actually used the property of the deceased, and if the court comes to the conclusion that they owned and used the property for personal profit, then they should be held liable, even if they were not confirmed in the rights of inheritance. But in 1873 Kassats. By decision on May 15 in the Mikhnev case, the Senate found the heir liable for the debts, because he was formally confirmed in the rights of inheritance and gave feedback on its acceptance - despite his subsequent withdrawal that he did not take possession of the estate. The mere retention of inherited property does not serve as a sign of acceptance of the inheritance: it is necessary to prove that the defendant retained the property and used it as an heir (1870, N 1583, 1872, N 493). In the case of Podgorodinsky Min. People's Enlightenment held him, as an heir, accountable for his father's debts, pointing out on his part actions that served as a sign of acceptance of the inheritance. Namely, although he did not directly take possession of the property and, upon reaching adulthood, formally renounced the inheritance, but, firstly, after the death of his father, he, together with the trustee, complained about the actions of the guardian on his father’s estate; secondly, together with the guardian, he leased this estate to an outsider. But in neither one nor the other action, the Senate (General Meeting 1874) found no signs that the son was using the estate for personal profit, for the complaint against the guardian related to the care of the integrity of the estate, and it was leased with the condition that the rent be used to satisfy government obligations and arrears lying on the estate. Reception by a relative should not be considered as signs of acceptance of an inheritance, for example. wife of the deceased, money owed to him not for personal benefit as an heir, but to satisfy a need associated with the personality of the deceased himself, for example. for his funeral, as long as it is possible to prove that the money was received and spent specifically for this purpose. Therefore, for example, a brother who, before the funeral, asked for the deceased’s well-deserved salary for the funeral and received it for this purpose, should not therefore be recognized as having accepted the inheritance; but if, having buried him at his discretion, he then asked for his salary as an heir, he cannot excuse himself from heir responsibility by the fact that he spent more on the funeral of the deceased than he accepted the salary. If the relatives of a deceased person, after his death, took part in his litigation with other persons as heirs, this circumstance alone, in view of Art. 1261. Citizen Zak., can this be considered a sign of silent acceptance of the inheritance? In the previous procedure of legal proceedings, this circumstance could not positively serve as such a sign, because in the previous procedure, the course of the case and its explanation depended on the discretion of the court, there was no rule on the suspension of proceedings by the death of the litigants, and cases, with the death of one or the other party, usually did not stop, but continued their - often silent and slow - course, so that a person who had not yet declared himself an heir and had not yet accepted the inheritance, of necessity, sometimes, in view of the possibility of such adoption and in order to avoid the loss of procedural rights, stand in court in place of the deceased, respond to calls and defend the interests of the inheritance. Moreover, as can be seen from the above, our law presupposes the possibility of such a state in which the relatives of the deceased enter into the economic management of the estate in order to preserve and support it, without being heirs and without owning or using it for personal profit. (In the case of the Logvenovs and Muratov, the Senate of the General Assembly of Moscow in 1860 recognized that the mere participation taken by the Logvenovs in the dispute against the claim of Muratov against their deceased sister, and their designation in the court decision in this case as heirs, does not yet serve as evidence that they accepted the inheritance after the sister, when the case shows that the hereditary estate remained in guardianship without the participation of the Logvenovs and without a response to the acceptance of the inheritance. See. still decided General Collection September 1870 on the village of Panaioti.) In the new procedure, the procedural relationship of the heirs of the deceased to the litigation has been changed. With the death of the litigant, the proceedings of his litigation are suspended by itself, by order of the court, which awaits the resumption of proceedings from the successor of the deceased party (681, 687 Art. Ust. Gr. Court.), at his special request, with which legitimation is necessary, i.e. justifying the right to sue; therefore, the person taking legal action after the deceased (if he is not acting as a guardian) must name himself as an heir and indicate his heir title; at the same time, according to the terms of the process, the heir who appears acts in his own name and assumes procedural responsibility with procedural law - in a word, he takes possession of the process for his own personal gain, therefore, he fits the conditions of Art. 1261. Zach. Citizen Wed. Cass. decide 1875, N 927. § 47. Renunciation of inheritance. – Signs and consequences of renunciation. – Can the descendants of the renunciated person exercise the right of representation? – Increment of hereditary parts. – Examples and questions from practice Renunciation. A sign of renunciation of inheritance is either leaving the inheritance right silent or a positive expression of will. Whoever, when summoned, does not appear to accept the inheritance within the prescribed time frame, is recognized as having renounced the inheritance. But the heir, who is clearly established, can (if he has not entered into possession and use) renounce the inheritance by a positive declaration of his will in the proper public place (Art. 1265, 1266). A positive renunciation must, within the meaning of the law, be direct and clear. The law says that it is done in the proper public place, and the proper place, of course, should be considered the court in whose department the inheritance was opened. When such an expression is used in the law, the question arises: what force does such an announcement have if made in the wrong place? The word legal should not be without meaning and it must be assumed that in the latter case the heir can, depending on the circumstances of the case, challenge his abdication, whereas in the first case this is not allowed. Without a doubt, there is a significant difference in the clarity of consciousness and in the completeness of expression of will - between a statement of renunciation given to the court in which an inheritance case is being processed, and between a statement of renunciation given to the police against a demand for payment of an inheritance debt. On the other hand, the silence of the heir leads to the assumption of renunciation only when the assumption is undoubted and the silence is unconditional (Section 2, Article 1265). If one heir remains silent, not presenting his rights, while other heirs declare them through a positive action, for example, a dispute against the will of the deceased, such silence in itself is not considered a renunciation (Article 1267). Consequences of renunciation: firstly, for the renouncer himself. By rejecting the possible benefits of the inheritance, he is freed from all the burdens that lie on him. Whoever renounces is not obliged to pay the debts of the inheritance (Article 1268). Of course, renunciation only applies to the range of rights and obligations regarding property (Article 1104); From this renunciation, therefore, other rights that are transferred by virtue of birth and kinship do not depend, such as: the right to name, honor, fortune, etc. Secondly, for the inheritance itself. The renounced person is excluded from the number of heirs. If the renouncer was the only heir after the deceased, i.e. if there was no one else with him with whom to take into account and divide the hereditary estate, in this case the inheritance passes into a further line and degree, i.e. to those persons who, after the departure of the renunciant, have the immediate right to inherit. And when the renunciant has no blood relatives at all, the hereditary estate becomes escheated. In the person of the renounced person, can his descendants enjoy the right of representation? Most people admit that they cannot. They say: you can only represent a person who died before the opening of the inheritance; whoever is still alive at this moment cannot be imagined, and the one who has renounced cannot, by analogy, be likened to the deceased; he is only excluded from the account of the heirs. As a result, from the right of representation as established in many legislations, practice draws the conclusion that representation is not allowed in the person of someone who has renounced or is incapable of inheriting 71 . And we draw the same conclusion from the literal meaning of Art. 1123. But if there is no inheritance by right of representation, is it possible to be an heir without this right? Many people here answer this question in the negative. In other legislations (for example, in the French Code Civ. 743, 745) the law allows for the possibility of inheritance by descendants and collateral relatives either by right of representation, or in one’s own name (de leur chef), and it happens that a person who cannot take advantage of the first right inherits by virtue of the latter, on which, according to the local law, an important difference in the division of the inheritance and in the accounting of the inherited share depends. But our law allows inheritance of offspring in the person of an intermediate member only by right of representation (cf. Art. 1123, 1127, 1128, 1136), without connecting the right of inheritance with certain degrees of kinship; consequently, where the right of representation is impossible, there is hardly a place for the right of inheritance under our laws. And therefore, when, for example, after a deceased patrimonial owner there were left a son and children, and a daughter allocated during the life of the parent, and the son refused the inheritance, then it would go not to the son’s children, but to the daughter. Many people hold this opinion; but one can hardly agree with him, based on the closest consideration of the essence of the right of representation. This right should not be confused with inheritance. You cannot inherit after two persons in the same property at the same time. The inheritance is opened in one person only, goes from one person only to a known heir, due to the direct relationship between him and the deceased patrimonial owner. It would be a mistake to assume in this regard that there is some other intermediary person through whom direct law should be perfected and come into full force. A grandson, inheriting after his grandfather, receives an inheritance not from his father, but from his grandfather, due to his direct relationship to his grandfather, and in such an inheritance there is no need to allow an unnatural assumption or fiction, as if the inheritance goes first from the grandfather to his son and through him to his son, i.e. to my grandson. Although it is impossible to have a grandson without having a son, by nature, this mediation is necessary only for the transmission of blood and for the establishment of kinship, and as soon as the event of birth has taken place and kinship has arisen, a direct kinship relationship is established between grandfather and grandson, therefore, direct inheritance right from the first to the last, if at the death of the first his son, and the father of the latter, who is in the closest degree of kinship, is not alive, otherwise he excludes his son. If so, then what does the right of representation mean and how is it practically expressed? It is necessary to make a reservation to avoid a misunderstanding: the right of representation is not an independent, organic right; it is a legal term meaning one of the qualities of hereditary transfer and division, but not the root of inheritance law. The right of representation arose among the Romans, but in Roman law this term itself was not commonly used, and the essence of the rule on representation was as follows. According to the general position, the closest degree in each class of inheritance excludes the further one, therefore, in a strict sense, further degrees could not participate in the inheritance on an equal basis with the closest ones; for example, if the son of a deceased patrimonial owner was alive, the descendants of the deceased son would not participate in the inheritance. The right of representation gave such descendants the opportunity, in the division of the inheritance, to take the place of their parent, who died before the opening of the inheritance, to be equalized in his name to the nearest degree, and in this case they participated in the inheritance generationally and divided among themselves equally the entire share of the nearest degree in whose place they entered. (In the 4th class of inheritance, the right of representation was not allowed at all.) Thus, the essence of the right of representation was among the Romans and is everywhere in the fact that, firstly, proximity of degree loses its unconditional meaning; secondly, that in the division the inheritance is divided not according to the number of living persons, but according to the number of tribes (in stirpes). Then, any opposition between one’s own inheritance right and the inheritance right upon presentation has no legal basis 72 . For these reasons, the expression used in our laws: “inherit by right of representation” should, in all fairness, be understood in the sense that representation determines not the fundamental right, but the mode of inheritance. Should this type of inheritance be eliminated, along with the right of inheritance, in all those cases where the person who should have been represented, being alive at the moment of the opening of the inheritance, turns out to be either incapable of inheriting (cf. St. about nak. 1566), or deprived of the rights of the estate, or renounced the inheritance. I think not. In all these cases, there is no immediate person capable of accepting the inheritance; therefore, his descendants can take his place, without losing their blood connection through him with the deceased patrimonial owner - by right of representation. Although the law apparently limits the right of representation to the death of the represented person (1127: after death... when there are no survivors), it would hardly be fair to attach a close, exclusive meaning to this limitation. These expressions: if they are no longer alive, essentially mean the impossibility of the person to whom the inheritance reaches to personally use it, the absence, removal from the account of the living heirs of this person; this impossibility may be physical, but it may also be legal - the consequences in both cases are the same, because there is no fundamental reason for the difference. There would be a reason if the right of representation implied that the represented conveys his right to the representative; then it would be necessary to admit that the one who does not have the right himself cannot transfer it; but there is no transfer here, and the heir by nomination inherits, as stated above, not after the person represented, but directly after the deceased patrimonial owner, in his own name, although with representation; therefore, representation (i.e., participation in the inheritance by blood to the extent of a parent who is not present) is not prevented by the fact that the person represented is physically alive, but only legally does not exist for the inheritance. In a word, physical death is not an essential moment in the right of representation. Let us imagine that after the death of a patrimonial owner, his own son is deprived of the rights of the estate. Can his children receive his inheritance after his grandfather, by virtue of representation? If the natural son is deprived of inheritance by his father according to rights. 1566 art. Code of punishment, can the children of this son inherit after their grandfather? If a natural son (in the presence of children) is granted by his father an estate by will only for lifelong ownership, and no direct heir is designated, can the children of this lifelong owner be considered direct heirs after their grandfather? (Cf. D. Kurnosova in the 1st General Collection. September 5, 1873) If his own son renounced the inheritance after his father, can the children of this son inherit after his grandfather? We think that they can in all these cases. In the person of a deprived state, family rights are destroyed, and therefore hereditary rights. Therefore, in family and hereditary relations, rooted in the previous state of the convicted person, the rights of both the convicted person and his children born after the conviction should be considered destroyed; but for children born before conviction, these rights remain inviolable (Code of Punishment, Art. 24, 27), which is positively recognized by law, Art. 28. Lay down about the order. In the person of the deprived of inheritance, his personal right of inheritance is exclusively eliminated, but as at the same time the family rights and relationships of neither him nor his children are destroyed, the inheritance right of these latter in relation to the grandfather remains inviolable. Also, the one who renounces the inheritance renounces personally for himself, and does not even have the power to renounce for his children (whenever they were born - before or after the renunciation), therefore, it cannot be assumed that by virtue of this renunciation the blood family relationship of the grandchildren to the grandfather is eliminated, and, therefore, their right to inherit after the grandfather. Grandchildren cannot be excluded from the inheritance after the grandfather simply because they renounced the inheritance after the father, for every hereditary relationship is a single relation of one person to the same person, and the inheritance after the father is not confused with the inheritance after the grandfather. Also, on the other hand, and for the same reason, there is no reason to exclude grandchildren from their grandfather’s inheritance simply because their father has renounced this inheritance. Legal Vestn. 1872, No. 1. Renunciation of inheritance is only a negative act of will. It cannot be combined with the expression of a positive will regarding the same property. By renouncing, the heir completely and decisively removes his will from the inheritance; therefore, he does not have the right to renounce in favor of this or that person or this or that use. Thus, the Senate invalidated the recall in this regard, in which the heir, Archimandrite. Plato, renouncing the inheritance, transferred it to the disposal of the bishop for charitable deeds: this revocation was assigned only the power of a simple renunciation (decision 1 of the General Meeting, September 1871). The issue of the so-called increment of inheritance shares (Anwachsungsrecht, jus accrescendi) is connected with the renunciation of inheritance. There are no definitions on this subject in our legislation; but, bearing in mind, on the one hand, the rule of Art. 1254, that the right to the opened inheritance belongs to the heirs from the very death of the owner, and, on the other hand, the natural action of renunciation, i.e. exclusion of the renounced person from the account of the heirs and from the division - it is necessary to recognize that the share of the renounced person, turning into the composition of the whole inheritance, goes to increase the share of other heirs, if there are any. But then another question arises: does it turn into the general composition of the inheritance indifferently and goes into division among everyone, or does it turn into the inheritance of those persons who, together with the renunciant, had a special collective right. To resolve this issue, it should be noted that our inheritance law generally distinguishes the type and quality of hereditary estates, and divides the inheritance along lines (1121), which already determines the share of each line. So, if the estate that followed the renounced person was due to him according to the exclusive right of his line (for example, ancestral property that was subject to return to his family, or acquired property that followed the father’s family - Art. 1163), and in the same line, after the renunciation, there were no other heirs left, then the estate becomes escheated; If there are others left in the same line who, in the absence of the one who renounced, would have had property, then his share turns to them. If the renunciant was supposed to inherit by right of representation jointly with other persons equally, then his share applies to them exclusively, even if the deceased patrimonial owner had other heirs, personally for himself or by right of representation for another person. In general, the following provision can be accepted as a guiding rule in this case: renunciation serves in favor of the one who, if the heir had renounced, would have received less. For example, if the brother of the deceased had to share the inheritance with the three sons of another brother, his share would remain the same, no matter how many nephews there were, therefore, with the renunciation of one of them, he does not gain anything, but the brothers of the renounced can acquire. Renunciation of inheritance was considered irrevocable in Roman law. But, according to French law, a person who has renounced an inheritance can still return his renunciation if, in the meantime, the estate is not accepted by another heir. Moreover, the abdication can be destroyed if it is done to the detriment of the creditors of the heir (Code C. 788, 799). Our law does not mention such cases; therefore, one must think that renunciation, made in the established form, is irrevocable, at least in relation to those persons (other heirs, treasury) who, as a result of renunciation, acquire rights to the estate. Examples and questions from practice A. Begichev, having declared himself the heir to Malama’s estate, then filed a petition in court stating that he did not intend to use the remaining hereditary estate, but was granting it for lifelong ownership to the widow of Malama’s deceased nephew, and after her death in favor of the university. The Senate recognized that Begichev, having once positively renounced the right to inheritance and thereby eliminating himself, could no longer transfer this right to anyone else (Sb. Sen. Resolution II, No. 386). In the practice of the Cassation Department. Conditional abdication of the Senate in favor of other heirs is not allowed (1877, No. 24, 1878, No. 243). B. In a separate entry, the abdication, although made by a minor, was recognized by the State Council as valid, because the entry was written not for the sale or mortgage of the estate of minors, but for the allocation of property in favor of them, and the natural father who issued the entry took the place of their guardian and trustee (opinion of the State Council of 1852 in the Denisov case). A renunciation of inheritance made by a minor without the consent of the trustee, as containing an assignment of rights, was declared invalid according to decision. Moscow General.. Collection 1856 in the Gamaleya case. V. In the case of Krasnomilashevich (Sb. Sen. decision vol. I, No. 38), the Senate recognized as valid the renunciation of inheritance under a will, expressed in a petition to the Chamber, regarding the appearance of the will, in interrogation before the Chamber, and at home, in an announcement to the assessor on the occasion of the entry. And in the case of Zevina (ibid. No. 278), the Senate found that abdication is carried out according to the law by means of an announcement in the proper public place, but on the part of Zevina (the heir under the will), this ritual was not observed, and she only refused to satisfy Levin’s claim to the testator, because the only reason is that the estate that came to her by inheritance from her husband was used to pay off the penalties accruing on it, which a revocation does not constitute a renunciation in legal form. Compare also Sat. Sep. decide Vol. II, No. 321. Cass. decide 1872, N 1014. A notarial condition is accepted as sufficient evidence of renunciation of the inheritance, in which the heir acknowledges that he has received everything that follows him, and that the remaining parts of the inheritance belong to the other heirs. G. After the death of Lev Shakhovsky in 1831, guardianship was established, and in 1849 his son Vladimir, who had reached adulthood in 1834, announced to the court that he refused to accept his father’s estate and pay his debts. This renunciation was declared invalid by the Senate (Sat. Sen. Resolution II, No. 640) for the following reasons. Vladimir Shakhovskoy in 1832 wrote to the guardian about accepting and preserving his father’s inheritance, in 1833 he agreed to the sale of hereditary movable property, in 1846 he took over the estate and took horses from it. Payment to creditors was made from movable property, and then from the sale of real estate, therefore, its income went to the heirs. Moreover, it is impossible to refuse an inheritance 5 years after coming of age, when the first condition of the law is to give a response to debts, and creditors cannot be forced to wait 15 years for such a response from the heirs. - Cass. decide 1873, May 30 N 783 it is recognized that after approval of rights and entry into possession, the revocation of renunciation of inheritance is not valid. D. In the case of Rachmaninov (decided by the Moscow General Meeting of 1853), the Norovs and the Treasurers claimed rights to his family’s maternal estate. Only the Norovs complained about the decision of the Civil Chamber, which did not recognize these rights, and argued in the Senate that the declaration of satisfaction on the decision and the omission of the complaint on the part of the Treasurers was tantamount to abdication, therefore, the part subject to the Treasurers should follow by virtue of the increment of the Norovs, according to the unity of inheritance law. But the Senate rejected such reasoning, recognizing that the renunciation is made by a positive announcement; and the announcement of pleasure on the decision of the court on rights confirms the strength of this decision. E. In decision 1 General. Collection Sep. On April 15, 1860, in the Pastukhov case, it was expressed that a renunciation of inheritance made by a person declared insolvent, by virtue of a publication depriving the debtor of disposal of all property, could be valid only if his debts were satisfied from his own estate. In the same case, the Senate subsequently decided that a person who, by a decision of a lower court, was considered an heir after an uncle, who accepted capital in this rank and used it, is not deprived of the right to refuse the inheritance when, after that, by a decision of a higher court, he was recognized as an heir in this capital not after his uncle, but after his father. Journal Min. Just. 1864, N 12. The renunciation of the inheritance of a person declared insolvent does not have decisive force: it is valid only to the extent that it does not violate the rights of third parties, i.e. creditors of the insolvent, for the entire mass of his property. So, at the request of the creditors, such a renunciation may be declared invalid. See solve. Sep. (2 Dept. 3 Dept.) March 27, 1873 in the case of Count Komarovsky, sl. in General Collection June 7, 1874 To Cass. decide 1884, No. 50, it is explained that the heir can use the right to renounce the inheritance only to the extent that this does not deprive his creditors of the opportunity to receive satisfaction of their claims, since, according to Art. 1547 Zak. Gr., the assignment of one’s right is invalid if done to the detriment of a third party. Consequently, in case of non-payment of debts, in the absence of other property to satisfy the creditors, the renunciation of the inheritance can be declared invalid, but, of course, only in the interest of the creditors and only in the amount of their claims. J. After Prushinskaya, an estate remained, which included, among other things, a claim on the husband who survived her. After the death of her husband, Prushinsky, the property passed to his granddaughter, his filial daughter, Elovitskaya. Prushinsky's two daughters, heirs to their mother's estate, began to demand from Elovitskaya, as the successor to their father's estate, that the said claim be satisfied. Elovitskaya, refuting this claim, argued that this claim does not exist, since the plaintiffs themselves ceded it to their father in a settlement agreement with him. But the court decision recognized that there was no such concession and that the claim exists. Then Elovitskaya also declared her rights to participate in the same claim, as an heir after her grandmother, Prushinskaya. The courts rejected this right of Elovitskaya, reasoning that since she herself disputed this claim, rejecting its existence, she thereby renounced the inheritance after her grandmother. But the State Council recognized Elovitskaya’s right, judging that there is no reason to recognize the dispute against recovery, which constitutes the value of the inheritance, as equally valid as the renunciation of this inheritance (pl. State Council. May 21, 1872). If the renunciation was made conditional, it loses its force with the destruction of the condition. In the case of Filippova (Sb. Sen. Resolution II, No. 955), the Senate recognized: although Filippova renounced the specified part after her husband in the petition, but under the condition that she would have lifelong ownership of the house; but since by subsequent decisions she was deprived of this lifelong possession assigned to her by her husband’s will, then with the destruction of this condition her right to receive the specified portion should be restored. Z. In the Titova case, the Senate (Sb. Sen. Resolution II, No. 900) did not recognize as valid the renunciation of inheritance, expressed by her conditionally, and, moreover, not subject to judicial jurisdiction. The person to whom the renunciation of the inheritance must be made is recognized, according to Art. 1408 Set. Citizen Court. (see Cass. decision 1867, N 177, 1869, N 15, 1872, N 776), the court on which it depends to allow the transfer of the protected estate to the heirs who have appeared, i.e. to whom the inherited property, according to its location, type and price, is subordinate. The declaration of renunciation of inheritance, in the absence of a dispute, does not require any recognition or approval from the court. Cass. decide 1872, N 776; 1876, N 476; 1880, N 27. I. Popov’s estate was sold for a debt of 3,000 rubles, but the auction did not take place and, having destroyed them, he was ordered to accept the amount of the debt from Popov and return the estate to him. Meanwhile, when Popov died, his heirs were ordered to be called to ransom, and they accepted the estate with ransom, and subsequently began to deny inheritance debts, claiming that they received the estate not by inheritance, but by ransom. They are denied unfairly, because the redemption of the estate is granted to them, since they are heirs, therefore, it is wrong to exempt them from the consequences of accepting the inheritance (cf. Sen. decision 1, No. 323). J. Dmitry Khrushchov, having received the estate after his father, did not receive an inheritance from his mother, which is why he refused responsibility for her debts. But the Senate decided that his mother, having become a widow after the death of her husband Khrushchev, asked for the allocation of the specified portion to her, and although she did not receive it, she retained the right to allocation for herself and her heirs. And since Dmitry Khrushchov received all his father’s estate, then as part of this estate he should also have the specified part of his mother, therefore, if he agrees to accept her, he must be responsible for his mother’s debts, and if he renounces, then this part should be allocated to satisfy her creditors (Sb. Sen. Resolution II, No. 595). § 48. Consequences of accepting an inheritance. – Responsibility of the heir for debts. – Possibility of debt division The heir owns the property of the deceased, with all claims and demands associated with the property (including debts receivable, deserved salary, etc., which legally belonged to the deceased in service. Law. Civil. d. 1258 73). The right to a claim that has not yet been filed, or a procedural right to a claim that has been initiated, is limited in the person of the heir by limitation, since it was limited in the person of the deceased, i.e. how much time the deceased had left at the moment of his death, the same amount passes to the heir from that moment (Law. Civil. 566). The heir becomes the successor of the deceased patrimonial owner and the representative of his property rights, as well as his own rights, so that in the person of the heir his legal personality is united with the personality of the deceased. Therefore, imagining in himself the personality of the deceased with all his demands and obligations, the heir can no longer keep with him his personal claims to the deceased and his obligations to him: both are repaid in the inheritance, according to the proportionality of the quantities. Therefore, if the heir owed money to the deceased, his debt will be repaid completely and completely if he is the only heir; partly, if he is partly an heir, together with other persons, i.e. whatever share of the inheritance he received, in such a share his debt is repaid. If the heir was a creditor of the deceased, then his claim is repaid, also in proportion to the inheritance share, i.e. having received, for example, half of the estate, he has the right to demand only half of the debt from another heir - the successor of the other half of the estate, and half of the debt is repaid in his own succession. This repayment occurs by itself, by force of hereditary transfer, the claim disappears by itself, and the heir no longer has the right to extend it to the deceased patrimonial owner or to any part of his property. Therefore, if, upon accepting the inheritance, he had transferred his letter of loan to a deceased patrimonial owner to a third party, it would not have been valuable in the latter’s hands in that part of the recovery that would have been repaid by the transfer of the inheritance (cf. about this decision. Cass. Dep. Senate 1869, N 1292; 1874, N 190; 1880, N 35, 70). One of the cases of such offset of debts and claims of the heir into the inheritance is indicated in Art. 1260. Zach. Citizen It explains that the son, being a creditor (literally: a giver of money for preservation) of his parent, upon his death receives from his co-heirs not the entire amount that the father owed him, but with the deduction of a part of this debt, which falls, according to the division with other brothers, to his share. Part of the son's creditor rights is extinguished in his inheritance right. By receiving rights and claims on the inherited property, the heir assumes responsibility for all debts and penalties falling on the deceased patrimonial owner - personal and unconditional responsibility, which is not limited to the value of the accepted estate, but also falls on the estate personally owned by the heir himself (Law. Civil., 1259, 1543, 1544, 2110; Pol. Treasury. Contract. Art. 72, 194). In only one case, the law allows an exception to this rule: in open-ended obligations and written on demand, when they are presented for collection upon the death of the debtor, his heirs are responsible for one estate accepted by inheritance (1259 note 74). But this unconditional responsibility appears in its entirety only where the representative of the deceased is one person, the only heir. And when there are several heirs, then responsibility is distributed among them in proportion to the inheritance share of each (cf. Cass. decision 1879, No. 294; 1886, No. 60). This means that the one who received, for example, a fourth share of the inheritance is also responsible for the fourth share of debts, but in this fourth share of debts he is still responsible with all his property; therefore, in order to determine what part of the debt falls on the person of the heir, it is necessary to take into account the amount of the estate he received and determine its ratio to the total amount of the entire inheritance. In many cases, it is impossible for us to make this accounting completely uniform, due to the general uncertainty of values ​​in our economy, and also because our inheritances are mostly accepted in disarray and without inventories. The obligation of heirs to answer for the debts of the deceased in proportion to the inherited shares applies equally to both heirs by law and heirs by will: this is constantly recognized by our judicial practice (cf. Sat. Sen. decisions, vol. II, 312. Cass. decisions 1874, no. 190; 1880, no. 34, 35). However, the responsibility of the heirs under a will may be distributed by the testator and disproportionately to their inherited shares; so the general rule about liability for debts in proportion to inherited shares applies to inheritance under a will only in the case where no instructions are made on this subject in the will (cf. Cass. decision 1874, No. 190; 1880, No. 70; 1882, No. 62). The heir’s statement that he is not the only heir cannot in itself serve as a legal reason for either the elimination or deferment of liability: the one who accepted the inheritance is obliged to unconditionally pay the debts of the deceased patrimonial estate, regardless of whether he is the heir alone or together with others (Cass. decision 1873, N 1647). Without a doubt, in this case there is only a vague response that does not contain a clear indication of the recognized and approved heirs. From other decisions it is clear that the heir against whom the claim is brought is obliged to prove that there are other heirs who are obliged to share responsibility for the claim with him; he is obliged to prove that he received not the entire inheritance, but a certain share, in proportion to which, if he proves it, he is liable (Cass. decision 1876, No. 549; 1877, No. 330). In the person of the heir, his own debts merge with the debts of the deceased patrimonial owner, i.e. he is responsible for both equally and completely. But is it possible to assume that the estate of the heir himself, together with the estate inherited by him, is responsible for these and other debts, upon acceptance of the inheritance, collectively and in an indifferent mass? Our legislation does not establish either positive rules or a definitive procedure for the so-called division of debts (see § 36); however, it would be contrary to justice to reject the possibility of such a division in our country. The entirety of his estate must be responsible for the personal debts of each person: in this only assumption, a loan is made to the person during his lifetime; therefore, it is unfair to allow that, after his death, this estate of his was turned to cover the debts of another person, even an heir, to the detriment of the creditors of the deceased patrimonial owner, who believed in the deceased and his wealth, and not in the heir. Moreover, every inheritance, in its totality, contains rights and obligations regarding property, united in the person of the deceased patrimonial owner, and the heir, accepting the inherited property, accepts it only with all the burdens that lay on it. Our law in 1259 art. gives grounds for separating hereditary debts from the personal debts of the heir. In Art. 1259 states that the heir is obliged to be responsible for the debts of the deceased, in the event of a lack of estate, even with his own capital and property. So, if, at the request of the heir’s personal creditors, foreclosure was applied to the estate that he had inherited from another person, the latter’s personal creditors have the right to demand that this estate be turned first of all to their satisfaction: we can point to the court decisions that have been made in this sense (for example, Sb. Sen. decision II. 552). But if the inherited estate was already sold and the proceeds were used to satisfy the personal creditors of the heir before the creditor of the deceased patrimonial owner pointed to this estate to satisfy his claim, then there is no direct legal basis for turning over the estate or the money, for the personal creditor in any case has only a personal, and not a real, right to satisfaction from a certain estate. It is known that our laws are very vague in everything that concerns bankruptcy proceedings, and the satisfaction of some creditors to the detriment of others often depends on random reasons (who warns whom). Meanwhile, it often happens that in the hands of one heir, and, moreover, still insolvent in his debts, several inheritances from different persons burdened with debts are combined. In such cases, it would be fair to create a special debt from each inheritance; but in the absence of definitive rules on this subject, debts are combined together, and satisfaction is made randomly, with the constraint of some creditors to the benefit of others. The decisions of the Senate Cassation Department recognized that the property of the deceased patrimonial owner is mixed with the property of the heir, therefore the creditors of both have the same right to satisfaction: the creditors of the first do not have a preferential right to satisfaction from the inherited property (cf. decision 1879, No. 85; 1880, No. 23); but in dec. 1886, No. 63, based on historical research Art. 1104 and 1259 Zak. Citizens, of which the first determines the composition of the inheritance, and the latter establishes the responsibility of the heirs, the Senate came to the essentially fair interpretation that the creditors of the deceased patrimonial owner have a priority right over the heir’s creditors to satisfaction from the inherited property, and if part of it is mortgaged or alienated by the heirs, then from the remaining parts, and they are obliged to certify that the property indicated by them was inherited by the defendants from the deceased patrimonial owner, their debtor. Liability for debts is based on inheritance and not on the right of representation. Distinguishing one from the other, the law (1262) confirms that children are not obliged to pay debts for their parents if, upon their death, they did not receive any inheritance, although by right of representation they later received an inheritance from their grandfathers and other relatives (cf. Cass. decision 1870, No. 1114; 1879, No. 342, 392). The treasury and other departments inheriting by escheat are not exempt from general liability for debts and obligations (1263). On the liability of the heirs of a deceased patrimonial owner for government accounts, see Vol. VII. Part 2, General Account Est., Art. 335, note, adj. Art. 6, approx. On rights and liability for claims in procedural terms, see Law. Court. Citizen, Art. 30, 31. Set. Citizen Sudopr. Art. 457, 458. On the responsibility of the heirs after the commander on the occasion of the surrender of the regiment. Arch. Military Post., part 3 books. I, art. 358. A) Some of the property inherited by the heirs in the person of the deceased are exempt from penalties falling on him (benefic. competentiae). These are, for example, the pensions assigned to the widows and children of the deceased: only a third of the widow’s pension is taken to replenish the government’s collection, and nothing is taken from the children’s pension. T. III Const. pension. Art. 232, 233; Floor. Collection Citizen Art. 394. Const. Citizen Court, art. 1088. To replenish accounts and collections of state and private emeritus pensions following the debtor’s family, or one-time benefits, half is withheld. Arch. Military Fast. part II, book. I, 2271 art., note. 3 to V Cont. Reserved estates and the income from them are not subject to personal penalties falling on the deceased owner. Zach. Citizen 492 Art. It would hardly be legal to extend this rule to the replenishment of private collections. This rule is special of its kind, and not a consequence of a hereditary transition. If a widow, since she receives a pension or a lump sum benefit after her husband, who left nothing of his own, were recognized as an heir to him, then the general rule of Art. 1259 would have to be applied to her. Zach. Citizen about the responsibility of the heir. But for this reason alone, she cannot be recognized as an heir. A pension, a one-time allowance constitutes the government's favor to the widow of an official for his service; both are assigned to the widow not because she is an heiress, but because she is a wife (the same considerations apply to children), completely independent of inheritance law. Only property that actually belonged to the deceased on the day of his death, even if acquired through service, is considered to be the inheritance; therefore, Art. 1258 is included in the inheritance. salary earned on the day of death: it is a value that was actually formed and constituted the personal property of the deceased. A pension is a completely different matter: it is a personal property not of the husband, but of the wife left behind him, and it is a state, not a civil right, a consequence of the husband’s service, but not of inheritance after the husband. So, the question of deduction from the pension for the husband’s debts may arise not from considerations of inheritance law, but from considerations alien to this right, and therefore this deduction is not assumed by itself, but requires a positive prescription and rule in the law. There is such a rule regarding government penalties, but there is no such rule regarding private penalties. One can point to some decisions in which receiving a pension after the deceased was recognized as a sign of acceptance of an inheritance (for example, the decision given in J.M. Just. 1865, No. 9); but such decisions, of course, are based on a misunderstanding. In the opposite sense, see Cass. decide February 14, 1873, N 202. Cass. decide 1872, No. 1036, it is recognized that a widow who has received a salary deserved by the deceased is not exempt from responsibility for her husband’s debts, and she cannot be justified by the fact that the money received was used to cover funeral expenses. B) Some penalties are extinguished upon the death of the person subject to the penalty. This is the money given in advance from the treasury to the official for runs and salary. In this case, we can say that the penalty itself arises precisely because of death, and therefore it is extinguished by death. III volume. Const. Sl. Law, Art. 228. About the allowance issued when assigned to serve in a remote region - ibid., Art. 225, note, adj. Art. 13, about money not collected for orders - Uchr. Ord. ed. 1892, Art. 195, 196. B) Zak. Citizen 1544 art. The heirs of a person who has undertaken personal service cannot be required to continue such service, but this law does not deprive the heirs of the right to receive remuneration for personal service already performed by the deceased counterparty, since this remuneration already constitutes part of the property of the deceased, belonging to his heirs. With the termination, due to the death of one of the counterparties, of the personal relationship established by the contract, the property obligations arising for one of the parties from the contract are not repaid; therefore, the heirs of the person in whose favor the work was performed under the contract do not have the right to refuse to pay the remuneration agreed for this work (compare Sb. Sen. decision II, N 1064. Cass. decision 1871, N 206; 1875, N 960). D) The heir assumes all the rights and obligations of the deceased; therefore, an acknowledgment of obligations made by the deceased is mandatory for the heir. The heir has no right to challenge the obligation recognized by the deceased. In the Olonkin case, the State Council recognized that a guardianship established over a spendthrift has the right to challenge the obligations recognized by him before the establishment of guardianship; and when the guardianship does not take advantage of this right, then it passes, upon the death of the spendthrift himself, to his heirs. Legal West. 1867, No. 4. D) In many cases, although a person undoubtedly inherits a certain property, it is very important to determine exactly from which person that property came to him directly by right of inheritance, because after whom someone is an heir, he must be responsible for his debts. A widow, left behind by her husband with children, if during her lifetime she did not receive the specified part of the husband’s estate by division, then this part, remaining part of the husband’s estate, in any case will be inherited by her children. But if their father did not leave any debts, and their mother left debts and did not leave any existing estate, then it is beneficial for the children of the heirs to be recognized as heirs after their father in the entire estate. However, if their mother, during her lifetime, already asked for the allocation of a specified portion to her, then in this specified portion the children should be recognized as inheriting after her, and not after their father, and obliged to answer for her debts, according to proportionality. In the case of Vasily Khrushchev, the question arose: should he be held accountable for his mother’s debts, for his recall that he did not receive any inheritance from his mother, but accepted only his father’s inheritance. It turned out that after the death of Khrushchev’s father, his son remained heirs to his estate, and his mother, who during her lifetime entered into the guardianship with a request to allocate the indicated part to her, but, not yet receiving the allocation, died. From this, the Senate (Sb. Sen. Resolution Vol. II, No. 595) concluded that the right of Khrushchova’s widow to allocate a criminal code. units passed to the force of 1152 Art. to her heir son; hence you. Khrushchov, having accepted his father's inheritance, also accepted the indicated part of his mother into its composition. Therefore, the Senate determined: to take away from Vasily Khrushchov a review of whether he agrees to accept that part of the inheritance with responsibility for his mother’s debts; if he does not agree, then he is obliged to provide it in favor of the mother’s creditors. E) In Maykova’s case, the question arose: can the heir of an unscrupulous owner be released from the obligation that lay with the latter under an agreement concluded by him with a third party, if this heir did not know about the dishonest use of his predecessor’s property? In other words: does the actual ownership of property pass to the successor by inheritance with the same internal qualities that it had with the deceased patrimonial owner, by virtue of his consciousness - or is the property of this ownership determined by the successor solely according to his personal consciousness? The Senate (Cass. decision 1869, No. 315) recognized, referring to the heir's liability for bad faith possession to the legal owner, that both the right to use the property and the liability for the obligations of the deceased arises for the heir from the death of the former owner. For heirs, within the meaning of Art. 1259 and 1543. Zach. Citizens, there is no new beginning for the fulfillment of these obligations: the same responsibilities that would have fallen on the deceased if his life had continued are transferred to them. Therefore, the heir, having accepted possession with the knowledge of its wrongfulness from the previous owner, is guilty of being responsible for this consciousness during his own possession, even if it has not been proven that the heir himself was also aware of the wrongfulness of his possession of that property. G) After the death of Anna T., an inheritance in the real estate was opened. The sister of the deceased, Marya B., had not yet been confirmed in hereditary rights and had not received the estate in actual possession, sold it under a deed of sale to Varvara V. Then the buyer took possession of the estate, and Marya B. was confirmed in her inheritance rights. 5 years after that, Marya B. died, and her son Ivan G. was confirmed as her heir. Having entered into the inheritance, he began to prove that his mother did not have the right to sell the estate that she inherited after Anna T., until she had not yet been confirmed as an heir and had not received that estate in actual possession. On this basis, G. asks to destroy the sale as illegal and, having taken away the estate from the buyer V., to include it in the inheritance that opened after his mother. Can such a claim be allowed? Don't think. Inheritance is the totality of property, rights and obligations left after the deceased. The heir enters only into the property, into those rights, into those obligations that belonged to the deceased: but in no case does the law give the heir greater rights than what belonged to the person who left the estate. The right to claim property, without a doubt, passes to the heir to the same extent as it belonged to the deceased patrimonial owner. But in the present case, the right to claim did not belong to Marya B herself. The subject of such a claim is essentially the destruction of the sale. The sale can be destroyed because it violates the right of the treasury or private law. In both cases, the claim belongs to the person whose right was violated. If Marya B. had sold the estate before it came into her actual possession, and it later turned out that the inheritance right in this estate could not belong to her or belonged not to her alone, but jointly with another person, then this latter person could consider her right to be violated by the premature sale and would have a legal basis to initiate a claim for the destruction of the sale. But if Marya B. was and has always been considered the only heir to the estate she sold; if no one except her could extend their rights to this estate during her lifetime, then she herself did not have the slightest reason to demand the destruction of the sale, which she herself voluntarily committed. She herself could not be a violator of her own rights; a claim on this basis is not conceivable, and another violator could not be considered if she alone owned the inheritance right in the sold estate. No one's rights were violated by this sale; therefore, Marya B. did not have the right to claim for destruction of the sale. It is obvious that the position of her heir, in relation to the sold estate, remains the same in relation to the inheritance received after her; he is not a third party, not a representative of any new right, but a successor to previously existing rights, a representative only of those property rights that belonged to her; therefore, with the death of Marya B., he could not obtain a separate right to claim for the sold estate. H) Parents, basically. 1141 and 1142 art. those who received property after childless children as a lifelong possession or in return as a gift - are they, on a general basis, obliged, as heirs, to be responsible for the debts of the children? “We have to,” Cass decides. Senate (dec. 1873, N 436, 758), but not on a general basis. Obligated because the debtor's estate must be responsible for his debts. But not being, in the literal sense of the law, heirs after children, the parents do not fit in this case under the rule of Art. 1259, i.e. are not required to pay children's debts from their own capital and property 75. § 49. Fees and duties on the hereditary transfer of estates. – Opening and acquisition of inheritance according to the law of the Baltic provinces Until the beginning of this century, the transfer of estates by inheritance was not free from fees and duties. During the period of the Code, certificates of hereditary immovable estates were subject to a quarter duty. Under Peter, the decrees of 1717 (N 3099) and 1724 confirmed the collection of this duty, at an altyn per quarter, when registering hereditary estates. Under Catherine II, with the increase in the size of serf duties, it was ordered to take 3 kopecks when recording deeds for immovable estates, wills and when registering an inheritance. from a quarter (Uk. 1763 and Land Survey Inst. 1766, Chapter IX). All these fees were abolished by a manifesto on September 15, 1808. In these fees, others completely mistakenly see the imposition of inheritance duties. These fees were part of the existing system of certificates and refusals of estates, exclusively real estate, and the transfer of such estates by inheritance, also combined with a certificate, was not excluded from the general fee, but inheritance in particular was never subject to a duty by our law. Duties and fees on inheritances, which have existed for a long time in Western states, arose from feudal relations that were alien to our way of life, therefore, we had no historical basis for such a fee. In 1821, the Minister of Finance, Count Guryev, in a presentation to the State Council, tried to establish a duty on inheritances and, borrowing its system from foreign legislation, did not prove quite thoroughly that this duty had existed in our country for a long time (P.S.Z. N 28814); but this attempt failed. The only thing left in the law was the serf duty restored in 1808 on spiritual wills, by which the estate is assigned in addition to the general inheritance law; but this duty is significantly different from the duty on inheritance, in which the estate is transferred by force of law directly and without an act, whereas in a will the estate is transferred by act, and this act is consistently brought under the general rule, by virtue of which the serf duty is imposed on all acts establishing the transfer of ownership of property. Therefore, the question of introducing a duty on inheritance was the subject of discussion in the tax commission, which was inclined to think about the possibility and necessity of such an establishment (see the report of the special Commission for the revision of serfdom and clerical duties of 1868–1869). The Commission justifies this determination from a historical, economic and financial point of view. It is certainly difficult to agree with the Commission's conclusions. Our inheritance tax has no historical basis at all, as shown above. The economic and financial conclusions of the Commission are based on ordinary considerations taken from theory, from foreign works on financial science, and from foreign legislation, and do not correspond to the economy of our life and the conditions of our legislation. The Commission intended to extend the duty to the acquisition of inheritances (both in real estate and movable estates) in distant degrees of kinship, starting from the third, raising the percentage of the duty (from 4% to 7%) according to the greater or lesser distance of kinship in the inheritance. The establishment of such a tax, in my opinion, is restrictive for property beyond a fair measure, because in the present state of our economic life and our legislation it is impossible to apply to them the rules that are conveniently applied to completely different conditions of life and legislation among other peoples. First of all, one cannot help but take into account the extreme uncertainty of the value of real estate in our country, which in Western countries has acquired an almost market value, and is always accessible to accounting without difficulty. It is, perhaps, possible in our country to establish a normal price for tithes for each locality, but this assessment will certainly be arbitrary, and for a long time it will not be possible to capture in it the actual value of lands and real estate, which depends on a wide variety of local, temporary and personal conditions. It is, therefore, impossible in any given case, by means of such an estimate, to make even an approximate account of the material interest which can withstand proportionate taxation. Further, our legislators seem to forget to take into account the legal features of our inheritance. These features are so vague and indefinite that there is nothing to base a fair measure of tax on, since there is no solid value either in the economic or legal sense, without which a tax is unthinkable. In France, in Germany, for example, not to mention the fact that each property belongs to a certain category, receives a certain value on an extensive market, sometimes embracing the entire state, and the legal conditions for acquiring an inheritance are such that anyone can take into account what he is acquiring and for what he is responsible; there is an opportunity to make known the debts lying on the estate, there is an opportunity to adjust both one’s rights and one’s responsibility and accept the inheritance conditionally, to the extent of the debts. With us, on the contrary, inheritance is one of the most uncertain, vague and risky acquisitions. The law does not provide a way for the heir to either clarify inherited debts or protect himself from unlimited liability. The heir has to choose between unconditional renunciation of the inheritance and its unconditional acceptance, both of which are based on fortune-telling assumptions. It often happens that an accepted inheritance, significant in material composition, turns out to be of illusory value in the hands of the heir, and the imaginary right that he thought to acquire crumbles, leaving him with real responsibility and production costs. In such conditions, of course, it would be unfair and unreasonable, at least until general changes in our laws on inheritance, to apply to it a measure of value abstractly taken from someone else's economic and legal life, and to introduce in our country such a tax, which in its very collection is associated not only with extreme constraint for private property, but also with extreme difficulties in accounting and the entire operation - for the treasury itself. Of course, there would be no reason to object to the imposition of duties on free monetary capital passing by inheritance, since here the treasury is dealing with a clear and unconditional value that is subject to full accounting. Another thing is real estate, or the concept of inheritance as a mass: here in most cases, at least when opening an inheritance, a definitive accounting of the positive value is impossible, and, moreover, the costs and hassles of this, in any case, only tentative accounting, fall on the inheritance with such a burden that does not at all correspond to government profits in some cases, but oppressing the irrationally general economy of farms in the state, therefore, the productive forces of the owners, thereby not only not promotes but counteracts the true interests of the treasury. In the present, shaken state of our agriculture, one of the main goals of legislative policy is undoubtedly to attract owners, and especially small ones, from the city, from industry, speculation and bureaucracy, to the countryside, for economic needs and local activities, and this attraction is carried out extremely slowly, with great effort, and meanwhile rural farms, when passed on by inheritance, are decomposed, destroyed, and lands from ruined owners pass into the hands of merchants, kulak predators and Jews. It is obvious that an inheritance tax can only contribute to this ruin of farms, and that many successors of inherited estates will rush to sell them to just anyone in order to get rid of the hassle and costs associated with fiscal proceedings on the estate, the profitability of which is often only imaginary and not real. Despite all these considerations, the validity of which is recognized by many, it was recognized as necessary to satisfy the immediate goals of the fiscal, i.e. In order to increase government revenue, we should also introduce a duty on inheritances in Russia. In June 1882, a law was passed (Vol. V, ed. 1893, Statute of Duties, Art. 152 et seq.), establishing a fee on the value of inherited property in the amount of one to eight percent, depending on the degree of closeness of relationship between the heir and the deceased patrimonial estate: the closest heirs (descending and ascending in a direct line) pay a fee in a smaller amount. Spouses, adopted children and spouses of children are also included among those paying this minimum fee (ibid., Art. 154). Several heirs pay the duty due from them in proportion to their shares. The duty is collected not only from heirs, but also from lifelong owners, from the former in full, and from the latter in half (ibid., Art. 155, 156). Foreigners are not exempt from paying the duty, except for subjects of those states in which the inheritance remaining after Russian subjects is not taxed (ibid., Art. 171). Property whose value does not exceed a thousand rubles for each heir, as well as peasant allotment lands with buildings, when transferred to persons of the same rank, are exempt from duties; property that goes to the treasury, churches, monasteries and parishes, as well as charitable, scientific and educational institutions, and finally, movable property that does not generate income and does not constitute the subject of trade or trade of the deceased patrimonial owner (ibid., Art. 153, 156). Recently, by the law of April 10, 1895 (Collected Law No. 421), the duty established in 1882 was completely separated when transferring land by inheritance and gratuitously in counties to the persons specified in paragraph 1 of Art. 154 Set. about duties, i.e. to descendants and ascendants, to a spouse, to adopted children and to the spouses of children. The duty is levied on pure inheritance, i.e. minus from its value the wages not given to the workers, burial costs, government and public fees and debts. On debt obligations included in the inheritance and on disputed property, the duty is collected when the heir receives satisfaction or property (ibid., Articles 157, 162). The price of the inherited property is announced by the heirs or executors, but it should not be lower than the legal valuation (ibid., Articles 158, 177). In the payment of the duty on an immovable estate, an installment plan of up to five years is allowed, with the obligation to pay half a percent per month on the amount due in installments for the second or subsequent years, and on a movable estate, a deferment of up to one year is allowed without paying interest and with the treasury providing in both cases for the payment of the duty (ibid., Art. 165). Protection and acceptance of inheritance according to the law of the Baltic provinces. At the discretion of the court, measures are taken to protect the inheritance if not all the heirs are known, or not all are present, or there are minors who require protection, or there is doubt about the acceptance or viability of the inheritance due to debts, or fears for the integrity of the inheritance. In this case, the court appoints, for the time being, a trustee over the inheritance; an inventory is drawn up of the estate and the heirs are summoned for a period appointed by the court; It is, however, possible to restore this period, but if there was no summons, then the right to claim is extinguished by a short period of one year from the time when the interested party learned about the discovery, or in Courland by a total of 5 years. The settlement between the newly appeared heir and the previously recognized owner is made according to the rules of Roman law (2581–2620). Borrowed from the same law are the differences between calling for an inheritance and accepting it and the rules on the form of acceptance and the consequences of acquisition, on the time limits for reflection, on acceptance by inventory and on the division of property. The following rule, based on custom, is noteworthy: if the persons called to inherit lived together and on the same farm with the deceased patrimonial owner and, at the opening of the inheritance, remained in actual possession of it, borrowing from it even the means of maintenance, then this circumstance does not yet serve as a legal sign of acceptance, as long as a positive response is given within the period of the announcement. The trustee of the estate is authorized to demand from the recognized heirs a positive response to the acceptance or abdication (2621–2662). A clear legal difference is established between the assignment of an inheritance and the refusal, the acceptance of both, and the consequences of acceptance. Inheritance by contract is allowed, the law also allows renunciation of inheritance under an agreement between the patrimonial owner and the future heir (Erbverziht) - free of charge or for a fee that is not considered to come from the inheritance. If the one who renounced died before the one to whom he renounced, then renunciation is not obligatory for those who descend (2763). The sale of an opened inheritance to an outsider is permitted (2667). The relations of co-heirs are determined by the general principles of Roman law; but regarding the procedure for dividing real estate we find many original and varied regulations taken from local law and custom. The order of collection, or set-off, when dividing into a mass, received in advance during the life of the patrimonial owner, was borrowed from Roman law. The following are subject to offset: a given or promised vein given to those descending for the arrangement and establishment; Ordinary gifts are not subject to this, unless they were given under the condition of credit, or there would be an equalization for credit with other gifted people; service allowance, alimony and education costs (2677–2762). § 50. Common ownership of heirs. – Division of inheritance: amicable and judicial. - Redistribution. – Differences in the Lithuanian statute. – Examples and questions from practice The heirs, if there are several of them, can remain, if they do not wish for immediate division, in the common possession of the inherited property (Articles 543–555 of the Civil Law), and each of them can alienate his undivided part to a third party only in such a case when his co-heirs refuse to acquire it for themselves according to the assessment. Only according to the local law of the Chernigov and Poltava provinces such alienation is allowed regardless of the revocation of the co-heirs (556, 1313, 1314 Art. of the Civil Code). The common ownership of the inheritance can continue indefinitely, provided that there is a common will of the heirs. On the contrary, the desire of at least one of the declared heirs is sufficient to initiate proceedings for division. The division is accomplished by an act that sets out the conditions for separate ownership 76 . If all the heirs, by common consent, make a division, without the intervention of the authorities, then it is called amicable. But the final execution of the act is preceded by a more or less long period of agreement, and sometimes by the unscrupulous claims and hesitations of one, an equal division for all the other parties may be made difficult, and thus an uncertain state of ownership and possession may continue for all. To put a limit to this uncertainty, the law specifies the following order. Each of the accomplices can declare their desire for partition in court by petition. From now on, all accomplices are entitled to a 2-year period, during which the law allows them to separate amicably, i.e. by mutual agreement, distribute among themselves and delimit the inheritance shares by a formal act. If this is not fulfilled, then (at a new request of the accomplice) the court carries out the division by its own authority. The estate is taken into custody with the imposition of a prohibition, until division. Then the court, having informed the economic composition of the estate and considering the mutual demands of the participants, draws up, if possible, equalizing lots or shares for each of the entire mass of the hereditary estate. What share will be given to whom is usually decided by lot in the presence of the court, and the basis for the division is a court decision (or a separate act is drawn up according to this decision). From a person found guilty of delaying the division, a fine of 6 percent is collected from all (disputed, as the Senate explains in decisions 1876, N 511; 1879, N 344) property (Civil Law 1315, 1317, 1318, 1320, 1322 77). From the decree of 1786, which established the collection of a fine, it is clear that it should fall on the guilty person, and, moreover, on the guilty one of nothing other than (for example, negligence, slowness, etc.) as sneaking and restlessness. It follows, firstly, that a fine is not unconditionally collected from estates for not dividing them within a 2-year period, because the failure to complete the division can result from various reasons that cannot always be attributed to those dividing, but from reasons that do not depend on the will, for example, from the loss of documents, from a lack of equipment, from the slowness of offices, etc.; secondly, that in order to impose a fine it is necessary to find one or another person guilty of sneaking and disturbing; If, at the discretion of the court, none of the co-heirs can be accused of this, then the collection of a fine is inappropriate; thirdly, according to the general meaning of the decree, it must be concluded that the expression from all property refers to the determination of the size of the penalty (6% of the entire estate), and not to the definition of the subject to be collected, for the words of the decree: on the account of the guilty, and the general spirit of the decree show that this penalty is personal, and does not fall on the entire divisible estate, therefore, not on all heirs, but personally on those who are found guilty. Moreover, when the subject of disagreement between the co-heirs is not the entire undivided mass of estates, but a part of them that can be separated, then it is fair to calculate the collection of the fine not from the entire mass, but only from all that property in which the heirs could not agree on division. By Kassats decisions. Dept. Senate (1868, No. 131; 1876, No. 129) recognized, within the meaning of Art. 1317. Zach. Citizen, that the fine is collected only when the court proceeds with the division according to the law; If within 2 years the amicable division has not taken place, but no court has yet started the division, then a fine should not be collected. The fine is collected even in cases where the heirs come to an agreement and even when they make a separation act without the participation of the court, as long as the court proceeds with the division (Cass. decision 1876, No. 511). The amicable division is final; but the judicial section may still be subject to change. If any of the accomplices to this division considers himself offended, he may, within 1 year from the date of approval of the first division, ask for a redistribution, and must prove that the division was carried out in disagreement with the legal rules (1332, 1334, 1335). The above order of division is extremely vague; The legal rules are incomplete and unclear, so that it was impossible on the basis of them to accurately resolve the perplexities that constantly arise. The court was not given any guidelines on the procedure for proceedings in such an important matter as the judicial division, and cases of this kind were often delayed in the courts for a long time without receiving permission. The division of the entire estate into equal lots requires accurate, careful calculation and assessment based on economic experience - a difficult matter for any private owner, and even more so for a court, especially for a court organized according to an order or clerical rite; the law did not even indicate the possibility for the court to elect experienced people for this business transaction, whose opinion would serve as the basis for the calculation. Obviously, with this order, the drawing of lots became a matter of clerical work, in rare cases it could be uniform and, in any case, aroused fair complaints from the participants; and the law did not indicate reliable and correct methods for resolving these complaints and objections. It is obvious that in judicial proceedings on division one had to necessarily expect contradictory statements and explanations from the participants, who were essentially in a dispute among themselves regarding the distribution of common property in terms of quantity, quality and location. However, the law did not place these participants in the position of litigants and did not subject them to the rule of adversarial proceedings in mutual explanations. Due to the lack of this rule, although such explanations were submitted to the court, they arrived in a disorderly manner, received a one-sided appearance and random meaning. The whole proceeding for partition was a private proceeding, without contest, without direct judgment or appeal; the action of the court, losing its judicial properties, took the form of an administrative measure, and the court's decision on division could be based, in the absence of the correct procedure, on an arbitrary view, which was least consistent with the case that required the equalization of rights and interests in property. To correct the errors and injustices of such a division, the law allowed for the possibility of redistribution, but for this action it did not indicate the correct procedure, so it remained and remains unknown to this day how redistribution is carried out, where one should ask for redistribution, and whether competition and appeal can be allowed in redistribution proceedings. Against the decision of the District Court or Chamber on division, private complaints were usually brought to the high court in the manner of private proceedings; but the resolution of these complaints could not replace the redistribution, for the higher court could verify the action of the lower one only from a formal point of view and had even less data than the lower court to judge the economic uniformity of the division. Sometimes the Senate interpreted that a request for redistribution should be submitted privately to the same court that carried out the division, and that redistribution, also made privately, should be final; sometimes he allowed an appeal against a decree on redistribution, although it was carried out without a contest; sometimes interpreted that after private proceedings for redistribution, a claim for division with adversarial proceedings may still be admissible; but all these interpretations had no direct basis in the law. The prescribed fine for non-division, and a very heavy fine, had the appearance of an unfair penalty, which could fall on the innocent equally with the guilty, for the recognition of one or another of the participants as guilty became, in the absence of decent judgment, a matter of judicial arbitrariness. In general, our laws on judicial division were issued with the idea that disagreement in division is a violation of peace and order, which must be stopped by a higher authority, with punishment for the guilty; but such a view obviously contradicted the requirements of justice that were always discovered in practice in a matter of a purely civil nature, and therefore the law on division constantly turned out to be untenable. The first attempt to establish correct division proceedings followed with the publication, in the new statute of civil proceedings, of rules on protective proceedings: this included a chapter on the division of inheritance (Articles 1409–1423); but these rules apply only in those areas where new judicial statutes have been introduced. A request for the division of an inheritance consisting of real estate or movable property in an amount exceeding 500 rubles (for a lower amount the case goes to the magistrate court) is submitted to the subject District Court. All co-owners are summoned to the court, and upon appearance, they are first given the opportunity to choose the person who will be entrusted with dividing the estate and drawing up a draft division. If such an agreement is not followed, the court proceeds with the division. The affairs are managed by the member-rapporteur, and the draft section can be drawn up, on his instructions, by a notary, who can call for an inventory and valuation of the property of the bailiff and knowledgeable people. The draft section is accompanied by a conclusion on the grounds adopted for this. Before the court ruling, explanatory proceedings are allowed between the litigants (904–908, Art. Statute of Civil Litigation). After a court ruling on division carried out in this “protective” order, a claim for redistribution is allowed, resolved by the general adversarial and appellate procedure. A. There is a special rule regarding the division between heirs of non-dividable property. Such property comes into the possession of one, and he is obliged to satisfy the others, according to the proportionality of the parts, in accordance with a fair assessment. The right to take such property, if any, belongs to the eldest heir (who is considered the eldest, the law does not explain: one must assume that the eldest is the closest by blood, or among equals, the eldest by birth), and in case of refusal or inability to pay the price (the next one) - the youngest (Articles 1324 and 1325 on mining factories). The division of estates pledged in credit institutions is permitted with their consent, with the transfer and fragmentation of the debt, or without transfer, according to special rules (1329). When there are minors among the heirs, they are replaced by guardians, under the supervision of the guardianship, and the separate act is submitted for approval to the District Court or the joint chamber (1336). B. Special formalities for the hereditary division of Jesuit estates, for the integrity of the treasury - see appendix. I to approx. 1 to 1 tbsp. Est. Kaz. im., ed. 1893, art. 12, 14. V. For the Chernigov and Poltava provinces existed until 1874, according to Litov. stat., special rules. In addition to the final or eternal division, a temporary one was also allowed, in the event that it was impossible to proceed with the final division. For the Chernigov province, especially, there was such a rule: if the division is to be divided across generations, and in each tribe there is at least one adult person, then a final division is allowed, even if the other heirs are minors. But when there is to be an overall division, and among the heirs there is at least one minor, then the final division is not allowed, except in extreme cases, and then the appanages are drawn up by the Civil Chamber, and the division requires Senate approval. In the general order, until the younger brothers came of age, only a temporary division was allowed, which itself entered into final force if it remained uncontested for 10 years from the time the minors came of age; and before that time (Chernigg.) none of those dividing had the right to alienate or mortgage their plot (Law. Civil. ed., 1857, art. 1316, 1333, 1337). These features were abolished in 1874 by two Highly approved opinions of the State. Sov. Action 1337, 1316 and 1333 art. Zach. Gr. ed. 1857 ceased, and both provinces were subordinated in sections to the general law, but it was stipulated that the previous force of Art. 1333 would also apply to the previous sections. To Chernigov. and Polt. lips when dividing the father's estates between offspring born from different marriages, if the amount of the dowry of any of the wives exceeded the dowries of other wives, then the excess during the division should be paid, according to calculation, to the children of the wife who contributed more than the dowry (Civil Law 1321). G. Among the Mohammedans, subordinate to the Orenburg Spiritual Assembly, matters of hereditary divisions are handled, at the request of those participating, by spiritual authority and decided according to Mohammedan law; but a complaint against such a section of civil law. superiors entails consideration of the case in general courts according to the general law (1338 art.). A similar rule exists for the Mohammedans of the Tauride province. If the partition is indisputable, then it is carried out by the clergy, but the act of partition, called yafta, is carried out according to the rules of the notarial position (Article 1339), see Cass. decide 1873, N 538. E. On the division of pensions and one-time benefits between the widow and children of an official who died in the service, see Code. Military Fast. part II book. 2 tbsp. 941 to V Cont. A. Proof of partition is generally a separate act, formally completed. But in the absence of such an act, the question arises: is it possible to prove the actual completion of the final partition by other acts and events? I think it is possible, but only in special cases. For example, if it turned out that among all the co-heirs, adults, a separate act of separation, albeit a domestic one, was drawn up by mutual amicable consent, according to which everyone entered into separate ownership of their shares and continued such ownership for a long time without dispute, it would seem that the claim for division should therefore be eliminated, for here the prescription of separate possessions covers non-compliance with the rule on the execution (1337 Legislative Civil) of an act of transfer of ownership. In the absence of statute of limitations, the claim would have to be accepted, and the division would have to be recognized as not having been finally completed, since the will of those dividing was expressed without its exclusive action as provided for in the law. If such an act had been drawn up not between all co-heirs, but only between some, then in this case the claim for division could have been eliminated by prescription only on the part of the persons who participated in the act and had separate ownership, but by a claim on the part of a person not participating in the act, the home division of the other co-heirs would have been destroyed, despite the prescription of their possession, for the right to partition of the common estate relates to the whole inheritance constituting the common property, and not to individual parts of it. Separate possession of one of the co-heirs, even if it continued undisputedly during prescription, also does not destroy the right of all others to demand division for the reason stated above (unless such an owner sold or donated his part to a third party, whose possession, based not on inheritance, but on an independent act of contractual strengthening, is covered by prescription). Moreover, such ownership in itself does not yet serve as a sign of ownership, for the heirs can, by mutual agreement, temporarily distribute among themselves the actual ownership and disposal of individual estates, but are still ideally and legally assumed to be in common ownership of the entire inheritance. (Cf. decision in the Charnomsky case, Collection of Sen. decision II No. 176. Decision in the Filippov case, ibid., No. 955). Cass. decide 1872, No. 456, it is recognized that the obligation of the heirs to issue money capital to one of them, instead of part of it, from the inherited real estate remaining in their common possession, can legally take place on the basis of Articles 1342 and 728. (Law. Civil., ed. 1887, art. 708 and appendix I, art. 1, 18) only in the form of a separate entry, shown in serf records, or completed by a notary, and negotiable, according to Art. 157. Notarial Regulations, in the serfdom deed; The reason for this is that the object, purpose, consequence of such an agreement is the establishment of a new right of ownership of real estate. In the Rosi case, the Senate (General Meeting 1867) recognized that a separate entry, drawn up by domestic order and not shown anywhere, does not constitute a legal act of strengthening real estate and has no significance. B. Concessions are associated with the division. If a concession based on calculation may turn out to exceed the value of the accepted share, is it possible to prove that this assignment was in essence a gift and apply the rule of return of the gift to it? It is impossible unless the condition directly states that it is a gift. See opinion. State Sov. 1851 in the Solomirsky case. C. In the event of one of the co-heirs renouncing his next share, it goes to the increment of the portion of the others who have not renounced; but this share, when separated, should not be recognized as escheat. This issue, although undeniably resolved in this sense, nevertheless aroused disagreement in judicial practice. Wed. opinion State Sov. 1851 in the Pavlovskaya case. G. Ivan gave his estate to Marya for life and from this estate assigned 500 souls to Fyodor, telling Marya to allocate to him those 500 souls from the Vologda or Kostroma estates during her lifetime, at her discretion. During her lifetime, Marya made the said allotment, but after her death, Ivan’s heirs cannot be deprived of the right to challenge this allotment and demand a legal equalization of the parts, for the allotment in any case means the designation of the hereditary part, and Fyodor’s hereditary part was determined by Ivan in the proportion of 500 souls and without designating the area. This allocation could have been made by Marya not by virtue of patrimonial right, but by virtue of executor’s right, and in this sense, she could not violate the patrimonial right of the co-heirs to the space and locality of the property. The patrimonial right to allotment could not belong to her, since she herself did not have full patrimonial right to the bequeathed estates. D. In the case of Karpov with Brezhinsky (Collected Sen. decision vol. I, No. 598) it was recognized that the heir of an estate undivided with other co-heirs does not have the right, in addition to the co-heir, to cede his inheritance to a third party, and that it is generally not permitted by law (except for Chern. and Polt. provinces) to cede the right to find an inheritance that has opened. E. Do the creditors of a deceased patrimonial owner have the right to prevent the division of his estate between heirs or the allocation of specified parts to individual heirs, if the deceased patrimonial owner is not declared insolvent, but only his estate is under guardianship or trusteeship to clear debts. Collection Sep. decide II. 679. It is usually decided that they cannot, and there is no reason to argue against the correctness of such a decision, regarding creditors whose deadlines have not yet expired, claims have not been announced and allegations of the debtor’s insolvency have not been raised. If creditors, in this state of affairs, cannot object to the alienation of the debtor’s estate during his lifetime, then all the less can they object to the division of the estate between the heirs, since personal responsibility for the debts of the deceased passes to his heirs, and ordinary creditors believed only in the personal integrity and solvency of their debtor. If there was a prohibition on the estate, then this prohibition is not removed from the estate even during division, and each part of the whole estate, according to the division, is liable for the claim secured by the whole estate. See also about this decision. in the case of Polivanov, Yu. Vestn. 1872, No. 5. In the Neškovich case, the district court refused to grant possession to one of the heirs under a separate deed, on the grounds that on a divided estate there is a universal prohibition against other co-heirs and that, due to this prohibition, the transfer of parts of the estate from one heir to another cannot be approved by the entry into possession of individual parts. The Senate (Cas. decision. 1873, N 1249) decided that there is no reason to prevent the division of the estate in the case where one or more co-partners have debts secured by a prohibition, and if during the division the debtor, whose part is prohibited, does not cede his part to the ownership of other co-heirs (Notar. Regulations 158 paragraph 4; Law. Civil., Art. 1324), then there can be no talk of transferring an estate under prohibition to another person, since when dividing the estate between partners, according to the shares of each of them, the transfer of ownership of the estate to other persons is not established, but only those parts that belong to each of the partners in the estate are determined. And since in the separate act there was no resolution on the transfer of parts of the estate from the debtors to other accomplices, there was no reason to prevent Neshkovich from taking possession of the part assigned to her. On the transfer of estate between co-heirs by division, see further discussion in part 1 of this course, pp. 96 et seq. G. On the question that arose in the village of Mollerius (Collected Sen. Resolution II, No. 1094) as to whether income from an estate taken into guardianship could be distributed to co-heirs before the end of the judicial division, the Senate reasoned that the law does not require that these income be sent for storage, and therefore the mentioned question is resolved, depending on the circumstances of the case. The only reason for refusing to issue income to the heirs can be if there is a dispute between the co-heirs not only about the procedure for division, but also about the degree of participation of each in inheritance rights, i.e. about the share of the inheritance following each. If there is no dispute about this, then there is no reason to refuse to issue income in proportion to the share of each heir. Chapter Four. Allotment and dowry § 51. The concept of allocation and its legal properties. – Its similarity to inheritance and gift. – Allocation restrictions. – Irrevocability of allocation and possibility of rotation. – Accounting for the inheritance allocated when opening. – Refusal of inheritance upon allocation. – Dowry and row entry. – Allocation and dowry according to the Lithuanian statute. – Examples and case law In family life, children and descendants in general are expected to live in a common house with the head of the family for an indefinite period of time. When one of them, having founded his family and his household, leaves home and begins a separate residence and house-building, he is separated from the common root and sits on his own root. For an individual household, if he does not have his own personal acquired property, he needs funds, i.e. in property capital. The head of the family supplies her with this capital from his property. In this case, the head of the family allocates to the separated member at his own discretion, taking into account his economic needs and his free generosity and goodwill, as well as the extent of his available funds. But regardless of this, the head of the family may, during his lifetime, transfer part of his property to the separated family member, taking into account his inheritance right to this property - a right that would arise and be realized no earlier than the death of the head of the family. This action is called allocation. Allocation is defined in the law as follows: parents and ascending relatives have the power to allocate their children and descendants, assigning them a portion of their property (994 Art. Civil Code). 1. Allocation is the free action of the patrimonial owner. During his lifetime, no one has the right, by kinship, to demand from him any share of the available property as their property, even his own children (Article 995). 2. The concept of allocation is characteristic only of the direct relationship of a parent to one of his descendants, to a son, to a daughter, to a grandson, etc., between whom there is a right of inheritance in a direct line. The concept of allocation does not apply to relations in the lateral line (Cass. decision 1880, N 150). If an uncle, although childless, during his lifetime wanted to transfer part of his property to his nephew, even his only heir, the act of transfer would be a deed of gift, but not an allotment, in the strict legal meaning of this word. 3. Allocation is a preliminary inheritance, on the one hand, on the other hand, it is similar to a gift 78. This is a gratuitous or donative alienation of property in favor of a person to whom by blood the expected inheritance in this property belongs, and with the direct purpose of not only donating, but also exercising the expected inheritance right. Therefore, the allocation, although it depends on the free will of the patrimonial owner, is necessarily subject to the same restrictions to which any gratuitous alienation of property in favor of the legal heirs is subject. So, the measure of allocation is completely free for the patrimonial owner in his acquired property, but limited in the ancestral property. From the family estate, the patrimonial owner can allocate to his descendant no more than the hereditary portion that follows him according to the law, i.e. no more than the part that the allocated person would receive by right of inheritance upon the death of the allocated patrimonial owner (Article 996). However, during the life of the patrimonial owner, it is impossible to determine with accuracy who, even among those descending, will actually be the heir after him at the moment of his death and in what share. During his lifetime, the patrimonial owner sees children and children's children, grandchildren and great-grandchildren alive around him. But when he dies, it may turn out that some of his children are no longer alive, and his grandchildren will inherit in their place, while other of his children will be alive and eliminate the inheritance right of their children, the grandchildren of the deceased patrimonial owner. In the literal sense of Art. 994. a patrimonial owner may, however, during his lifetime, make an allotment in favor of his grandson, while his father is alive, and his son, and the living father has no right to prevent such an allotment, for at the moment of death he himself does not have a valid right to the inheritance after his father, and therefore no right to a claim for this inheritance, even in the family property. But the allocation made, while remaining in full force during the life of the owning patrimonial owner, after his death may turn out to be illegal and be declared invalid if the grandson was assigned ancestral property, and at the death of the patrimonial owner, that grandson, while his father is alive, will have no inheritance right in his grandfather’s estate. Beyond all this, however, until such an allotment is destroyed, the allocated person has full patrimonial right in the estate, with legal possession, therefore, a claim for this possession is impossible against him and the alienation of this estate, if it were carried out on behalf of the owner before the death of the first (who allocated the estate) patrimonial owner, will receive irrevocable force, leaving no room for a claim for compensation. 4. An allotment irrevocably transfers the ownership of an estate in the same way as a gift. But an allocation differs significantly from a gift in its main idea - not only to bestow, to benefit, but also to give the estate during the lifetime of that relative to the descendant who is supposed to be the heir to this estate. What exactly was on the mind of the patrimonial owner when transferring the estate - whether there was one donative purpose, or the purpose of the allotment, this is determined by the type and name of the act. In any case, the gift property of any allotment is undeniable and gives the act its main meaning: whatever property is the subject of the allotment - ancestral or acquired, it is transferred as a gift, and the allocator sacrifices, firstly, his possession and use of this property, which would have belonged to him before death; secondly, along with his patrimonial right, he also gives up the legal possibility of alienating this property, which belongs to him as the owner. since appropriation belongs to the class of deeds of gift (as one of the types of this kind), it undoubtedly seems that the general right (Article 974) to demand the return of a gift for ingratitude also applies to appropriation. Nothing prevents making an allocation on a condition, just like a gift (975, 976, 977 Art. Zak.Gr.). 5. The allotment precedes inheritance, in whole or in part, but does not unconditionally eliminate the possibility of inheritance in the other estate of the patrimonial estate, when after his death the inheritance actually opens. Then the inheritance will also be open to the allocated person, since he is not yet completely satisfied with his inherited part, to the extent that it follows him at the moment of the death of the patrimonial owner (Article 997). Whoever is fully allocated in the ancestral property is considered to be completely separated; but whoever has not received his full inheritance share will have it supplemented during the division of the inheritance when it opens. It’s a different matter with regard to acquired goods. Whatever part the allocated one receives, on the occasion of the department, i.e. more or less hereditary, he is considered to be finally separated in the acquired property and, upon the opening of an inheritance in it, cannot demand equal distribution with other heirs. (That Article 997 should be understood in this sense is confirmed by the interpretation adopted in the opinion of the State Council on November 9, 1842, P.S.Z. N 16187, cited under Article 192 of the Law. Gr.) However, the transfer of acquired property to a descendant during the life of the patrimonial owner is accompanied by this restriction only when made through a separate entry. Moreover, of course, the right of an allocated person, both in ancestral and acquired property, does not interfere with his inheritance rights to the estate of the patrimonial estate, when this person is the only heir after him and he does not have to share the estate with other persons who have the same inheritance right. Whoever is allocated in what has been acquired is not excluded from inheritance in the clan, unless at the very allocation he recognized himself as completely satisfied and refused to participate in the inheritance when it opens (997, 998). By this refusal of further participation in the inheritance, the allocated person assumes the obligation not to enter into competition with other heirs when dividing the family estate. 998 art. Zach. Citizen literally speaks of the removal from inheritance in ancestral property of those allocated in acquired property; but from the expression used: “if, during the allotment, they did not refuse to participate in the inheritance,” one should, it seems, conclude (in connection with the meaning of Article 1002 on the dowry) that in general, regarding the allotment from any property - from family or acquired property - one can refuse a further claim to the inheritance, and that this refusal remains binding. Within the meaning of Art. 998 the commitment of the allocated child is assumed to be unilateral. Is it possible to recognize, regarding the allocation, the validity of a mutual agreement between the allocated heirs of the patrimonial estate in such a sense that the allocated one undertakes not to seek anything more than what was allocated to him, and the other heirs undertake not to argue after the opening of the inheritance against the part allocated to him? Don't think. You can refuse only what you have the right to; and the heirs, during the life of the patrimonial owner, have no right to his property and, by virtue of Art. 710. Zach. Gr., any records of assignment of the expected inheritance are invalid. Our law does not recognize inheritance agreements. In a special case, the direct law provides the allocated heir with the opportunity to refuse to participate in the inheritance, and this refusal can be understood, because here the inheritance right of a person is exercised during the life of the patrimonial owner, according to his will, and this person can recognize himself, in terms of the quantity and quality of the estate received, as being completely satisfied with the entire part following him, recognize, i.e. everything is fully hereditary right, in quantity, significant. For this recognition of his full share, he no longer has anything to look for when opening the inheritance, because before the opening, all his rights have already been exhausted. On the contrary, the unallocated heir has nothing to establish the legal significance of his refusal, for how can he renounce the right to a claim when it has not yet arisen? What to give in when the subject of the concession is not in power? What should you agree on with the allocated heir when the subject of the agreement is property in which one party has received the right, and the other has no right? The very refusal of the allocated person to participate in the inheritance has, as noted above, a conditional meaning. It remains in force in relation to those persons who, at the moment of allotment, appear, on the same right as the allotted, as heirs of a living patrimonial estate, i.e. regarding his descendants, who could be separated in property on the same basis as the person in whose name the allocation is made. So, for example, when a son is allocated, meaning his brother and nephew, his brother’s son, the refusal of the allocated person retains its force, even if at the opening of the inheritance one of these two persons turned out to be deceased (for example, a nephew) and the other remained alive (brother), who, therefore, due to hereditary increment, will receive all the rest of the property of the deceased patrimonial owner. But when, at the death of the patrimonial owner, there are no heirs present (in the descending line), who at the moment of allotment treated the inheritance on the same basis as the allotted one, and they do not have representative offspring, then it would be unfair to extend the power of refusal to the rights of heirs in the lateral line, i.e. by virtue of the refusal made by the allocated son in view of his brothers and natural nephews, to provide the paternal inheritance, in addition to the living son, to the relatives of the deceased in the collateral line. So, according to the general law, the allocation, in itself, does not exhaust the hereditary share with one legal meaning: it exhausts it only by its quantity, if it fully corresponds to the measure of the hereditary share. If it is lower than this share, then you can still demand an addition when dividing the inheritance. On the contrary, according to the Lithuanian statute (rule 999 of Art., which remains in force for the Chernigov and Poltava provinces), allotment is always assumed to be the full implementation of the right of inheritance, and whoever is allotted is already considered completely separated from the existing estate of his father or ascending relative and is excluded from participating in the inheritance remaining after him, but is not deprived of the right to what can reach him by right of representation. But on the other hand, the separated son does not lose the slightest part of what was allocated to him, even if, at the opening of the inheritance, the other heirs did not receive the proper parts for themselves, according to proportionality. What is provided by the father, during his lifetime, to the son, in the form of a gift, and not an allocation, is not counted and does not deprive the gifted of the right to participate in the division of the father's inheritance (Zak. Gr. 999, 1133). The act of allotment is a separate entry made according to the rules of the Notarial Regulations, and where it is not introduced, it is shown in serf affairs (1000 articles of the Law of the Russian Federation; Notary Regulations, art. 65, 158). A duty is levied on property transferred under separate records on the same basis as on inheritances (Vol. V ed. 1893, Statute of Duties, Art. 152 et seq.). The allocation can be made in favor of a daughter or grandson, as well as in favor of a son or grandson, but when it is made on the special occasion of marriage, then it takes on the special meaning of dowry and row entry. The concept of allocation refers, as noted above, to a concession in favor of children and descendants, and a dowry, within the meaning of Article 1001, can be assigned in favor of daughters and relatives. The law of dowry is similar to the law of allotment: of married daughters, those only are considered separated who, in the records signed by them for themselves and their heirs, voluntarily renounced further participation in the inheritance. If such a renunciation is not made either in writing or with any other written act, then the daughter is not deprived of the right to additional satisfaction to the extent of her inheritance share, upon the opening of the inheritance after the parents (Art. 1002, 1003). But when a daughter, on the occasion of the appointment of a dowry, renounces further participation in the inheritance, then, upon the discovery of it, she is not deprived of the slightest share of what was allocated to her, even if the other heirs did not receive everything according to the proportionality of the parts (1104). The act of dowry - a row entry - must be made in serf order, if the dowry consists entirely or partly of real estate: entries for one movable property are written at home, but with the appearance of serf affairs in those areas where the Notarial Regulations have not been introduced. All capital included in the dowry in money, bills and notes must be accurately recorded in the records. The serial entry must be made and revealed either before the marriage, or no later than 6 months after it was committed (Articles 1006–1008). The last rule is important in the event of the insolvency of the person on whose behalf the row entry was issued (cf. Ordinance of the Court of Trade, ed. 1893, art. 554–556). A duty is taken from property transferred through serial records on the same grounds as from an inheritance (Vol. V, Statute on Duties, ed. 1893, Art. 152 et seq.). For the legal meaning of dowry as a wife's property, see page 126. A serial entry is usually issued either in the name of a daughter, or in the name of a son-in-law, or in the name of his parents. In any case, when the deed is not issued directly in the name of the bride, it, in essence of a dowry, means granting the right of ownership of the property not to the one to whom the deed is issued or the property is entrusted, at least for disposal, but to the one to whom the assignment of the dowry relates, i.e. a daughter or relative receiving a dowry (see General Collection, September 1870, according to the village of Borisova, 1871, according to the village of Lukyanova). A row entry, like a dowry deed, serves as a deed to property constituting the wife's property, or an obligation giving the wife a claim. And since, according to our law, the wife’s property is not combined with the husband’s property and does not become his property, it follows that the right of action generally belongs to the wife, and not to the husband, who, without authority from the wife, does not dispose of her property. Obligations issued by parents or relatives on the occasion of marriage, in the form of not private, but official interest, as they call it, should not be confused with private obligations. reverses given by the bride's parents (see § 4) on the occasion of officer marriages, with the obligation to provide for the family life of the spouses for a certain amount from available property. See on this subject the village of Oplachko in General. Collection Sep. May 25, 1873 Our dowry legislation, in its current state, is rightly recognized as insufficient. Our law understands the dowry from the point of view of the allocation and separation of marital property, but at the same time the special economic significance of the dowry in marriage is completely ignored (as it is expressed in folk custom and in the general idea among family life); The legal significance of the dowry, which was expressed in Roman and church law, which in the past served as a guide for judicial practice among us, was also left unattended (see § 14 above). Under the current law, the legal significance of a dowry, even if accepted by the husband upon marriage, remains in complete uncertainty, as a result of which claims for dowry and the consequences arising from it cannot receive a thorough and fair decision. They have to be decided on the basis of general rules on the right of ownership, on the separation of property and on responsibility for the disposal of other people's property, but these general principles are obviously not enough, because the relations of spouses regarding the dowry, which serves as the capital of the common household, have a very special property. Those who wish to delve deeper into this subject are referred to Orshansky’s interesting article on the dowry (Journal of Citizens and Trade. Pr. 1872, No. 6). The author rightly points out the contradictions between our law, which does not mention at all the husband’s right to his wife’s dowry, and custom, which recognizes some right of the husband to the dowry, as well as the practice by virtue of which row records are written in the husband’s name. The author also points out some articles in our law, which indirectly express the possibility of acquisition for the husband, in receiving a dowry, for example, Art. 1009 (ed. 1857), 1153, 66. So, although the husband's power over the dowry exists in marriage, the rights of the husband to the wife's dowry are not at all determined by the Code of Laws. You can get acquainted with the popular common view on dowry in Mr. Efimenko’s curious book, Dowry according to the customary law of peasants of the Arkhangelsk province. The author notes at the end of the book: according to the laws from the time of Peter, which laid a sharp boundary between the old and new views on the dowry, this latter can be considered a complete allocation, and the daughter is called separated only when she receives her entire specified part in the dowry in advance, or regularly renounces the inheritance; if she did not receive her part in full, then after the death of her parents she can claim it from the inheritance, with the dowry offset. According to folk customs, a woman who has received a dowry, be it skruta (clothing) or allotments (any other economic and monetary equipment), is in any case considered separated and has no right to inherit after her parents. According to existing legislation, due to the strict beginning of the separation of property between spouses, the dowry is considered the exclusive property of the wife, and in relation to this property the husband has no right, not even the right of use; the wife owns, uses and disposes of this property at her own discretion, regardless of her husband; she may even alienate it to strangers, or to her husband himself. Among the people, only the paid dowry is considered the property of the wife, and the allotments constitute the common property of the spouses, which is controlled more by the husband than by the wife. Finally, regarding the husband’s inheritance in the dowry, the people limit his right much more than the law granting the husband 1/4 of the wife’s property. Special regulations on the appointment of a dowry, taken from the Lithuanian statute, are valid for the Chernigov and Poltava provinces. The father has the power to give a dowry to his daughter, at his own discretion, as much as he wants, both from the family estate and from the acquired estate. Moreover, what she received as a dowry during her father’s life, the daughter cannot demand even after his death from her brothers and their descendants, even if she showed that her father did not give her a dowry at all when he gave her away in marriage. If a father dies, leaving one or more unmarried daughters and without assigning them a dowry, then all of them, no matter how many there are, are assigned a fourth part of the entire inheritance as a dowry; If during the life of such a father one or more daughters got married, then the rest receive a dowry from the fourth part, according to the general calculation of shares with married women; when the brothers do not have the means to balance the true share of the dowry of married daughters, then from the fourth share of the estate they give the rest equally, and if from the fourth share the other daughters receive more than what was given to the married ones, then the first are given the same amount as was given to the last. When a sister, who received a dowry from her brothers from the fourth part of her father's estate, dies without disposing of it during her lifetime and without leaving children, or her children die before adulthood, then her dowry goes to one of her sisters who has not yet been married and has not received a dowry. The dowry, as a general rule, is secured on the husband’s estate through a deed or security record or transferred directly to the name of the wife (1005 Art. Zak. Gr.). In addition to the above about allotment and its legal meaning, there are comments and arguments placed in the 1st part of this work, namely, on the analogy of allotment with inheritance, pp. 67, 88; with dowry – 69, 89, 90; with the gift – 67, 68, 73, 75, 90; on the addition of parts – 86; about the transaction in the section – 89; about children separated – 86–89. A. By means of allotment, the estate that the allotted descendant would have received upon the death of the votchinniki, through legal inheritance, passes to him during the life of the votchinniki. The question arises: do all the legal consequences of ordinary inheritance, which occurs after the death of the patrimonial owner, apply to this preliminary inheritance? No, because there is a significant difference in the time of entry into inheritance, in both cases. In the ordinary order of inheritance, it occurs at a moment when all the property relations of the deceased patrimonial owner have already been finally concluded, therefore, the entire inheritance left after him constitutes a whole mass of rights and obligations, and his successor takes upon himself everything that lay with the deceased patrimonial owner when he accepted the hereditary estate. And in the case of allotment, the heir, taking possession of the allocated property, assumes only what on the day of allotment lay with the patrimonial owner, as the owner of this property, but does not assume such responsibility for it that could arise in his person after the allotment. It would be unfair, for example, to subject the allocated heir to liability for the personal debt of the former patrimonial owner, formed after the allocation: this debt arose on him already when he ceased to be the owner of the allocated property, therefore, this property, as someone else’s, cannot be held accountable. So, the allocated heir can be liable for his subsequent debts only to the extent that, after his death, he used the property remaining after him as an heir (cf. Sen. decision on the village of Obrezkova. Coll. Sen. decision vol. II, No. 457). Subsequently after the allotment, the newly emerged creditors of the first patrimonial owner may object that if there had been no allotment during his lifetime, the allotted estate, having become part of the opened inheritance, would have been subject to liability for their claims; but this objection is unfounded. Personal creditors generally have no right to claim anything that was not owned by the debtor at the time when their debt claim arose; their claim can only relate to what he has at that time, and what has already been alienated to him, they have nothing to do with that; therefore, if before their claim arose, the debtor decided to transfer part of his estate by allocation, they have no right to refute this transfer, unless they could prove that it was done in bad faith and with malicious intent against them. The allotment will be counted as an inheritance, and therefore creditors, whose claims were opened for collection before the allotment, can extend a claim to the allocated estate, but only from the moment of death of the patrimonial owner from whom the allotment comes, for only from that moment the allocated estate becomes fully hereditary to the successor. Until then (i.e., from the making of the allotment until the death of the culprit of the allotment), the use and possession of the successor of this estate, although on the right of ownership, constitutes a gift, to which the donor’s creditors in any case have no right, for the gift does not oblige the one who accepted it to fulfill any other obligations other than those voluntarily accepted under the terms of the gift, and hereditary liability is not connected with the gift, even though the gifted person could be an heir upon the death of the donor (Collection. Sen. decision vol. II, N 875). B. Inheritance is not a gift, but a transfer of what follows by right. But an allotment is an advance of an inheritance, and since the advance constitutes a gift: it is given, therefore, by the will of the owner, the entry into possession and use, and the possession and use itself for the entire time from the making of the allotment to the death of the assignor. So, since the allocation is a gift, it is subject to the law of the gift, therefore, it can be returned to the donor according to the force of the law on donation and, in the event of the childless death of the gifted son, it is returned to the father (cf. Sat. Sen. decision vol. I, No. 77). C. If the division of a son by a parent is not made unconditionally, but under the condition that the son pay his father’s named debts or make an extradition, etc., should such a division be recognized as purely hereditary and on this basis, upon the opening of the father’s inheritance, should the separated son, against his unseparated brothers, be accounted for the property he received, or should it be recognized that the assignment of the estate for the due payment was not in essence a division, but a special kind of compensated agreement and on on this basis to allow the separated son to participate in the inheritance unlimitedly? According to the village of Chaleev (Sb. Sen. decision vol. I, N 619) the Senate decided the issue in the latter sense, but hardly fairly, because the record about which the dispute arose was called separate. In such a case, it is fair to allow the division of the allocated estate to be taken into account together with the value that the separated son must pay for it according to the terms of the recording. G. Bozhenkov bequeathed his estate, after lifelong ownership of his wife, to his children, including his daughter Nadezhda; but after drawing up the will, he separated from this daughter, on behalf of himself and his wife, 15 souls of peasants with land, but did not change the will until his death. Upon his death, when opening an inheritance, should his daughter be credited with the estate received as an allotment to the share that follows her according to her father’s will? It should not (decided by the Moscow General Assembly of 1858), because the will was not revoked, and the entry according to which the father separated his daughter’s estate during his lifetime is a special act of the will of the patrimonial owner, independent of the will, which is a special act of the same will. The allocation is subject to accounting only for the legal inheritance, with which the right of allocation is commensurate, and not for the testamentary inheritance. D. If a daughter, having received a dowry, does not renounce participation in the inheritance, then she is not excluded from the inheritance. She can get the rest that follows in the indicated part. She is also not excluded from what could have been bequeathed to her from the acquired estate, although the will was drawn up earlier than the serial entry; unless it turned out that the same estate that was assigned under the will was included in the serial entry. Wed. Cass. decide 1886, No. 60 and decisions. Sep. in the village of Weiss. Journal Min. Just. 1862, No. 1. 1890 Apr. 11 N 40. – In the case of Yazykovaya Gr. Cass. Dep. resolved the question: does a daughter who renounced upon marriage (or her offspring) have the right to participate in the inheritance after her parents, if at the opening of the inheritance only a married sister who got married during the life of the deceased patrimonial estate remained alive - in the affirmative sense, due to the fact that what is specified in Art. 1002 Zak. Citizen renunciation applies only to the rights specified in Art. 1004 persons, i.e. from among the sisters - to the unmarried. 1890 May 23 N 55. – Ekaterina Shevlyagina, in a regular entry, renounced the inheritance, which could have opened not only after her father, but also the rights to the inheritance that had already opened after her mother, and then filed a claim to have this last renunciation declared invalid. The Moscow Court of Justice recognized that Shevlyagina’s renunciation of the inheritance after her mother cannot be considered obligatory for her, and Citizen. Cass. Dept. I recognized this conclusion as correct, because, according to the exact meaning of Art. 1002 and 1003. X Vol. I, renunciation of inheritance, allowed in row records, can only take place during the life of the parents and therefore is applicable only to a future inheritance, and not to one that has already opened before the compilation of the row record. Chapter five. Right of redemption § 52. The concept of ransom. – History of ransom in Russian legislation. – Properties subject to and non-repurchase. – Who is allowed to buy back and for what period? – Remuneration and payments. – Procedure for conducting ransom cases. – Reverse claim by the owner. – Ransom in the Baltic provinces Redemption, according to the definition of our law (Z. Gr. 1346), is the right of relatives to reclaim ancestral property alienated through sales into the possession of strangers. This right was established in ancient times to protect interests associated with hereditary land ownership. These interests, which in the past had special social and political significance, seemed so important that the economic benefit of a third-party acquirer had to be ceded to them, as soon as the clan, represented by one of its members, demanded the property back. The third-party acquirer was obliged to relinquish the estate. The following served to protect his interests in the acquisition: 1. The period, at first very long, after which the right to redeem was lost; 2. The obligation of the redeemer to return to the buyer the money paid for the estate and to satisfy him for everything that came to the estate during his ownership, strengthening this obligation and thereby making the redemption more difficult, the law also strengthened the protection of the buyer in his interests; 3. Prohibition of redemption to the seller himself, as well as to his children and grandchildren. The right of redemption, judging by the judicial acts of old that have come down to us, existed and was recognized earlier than the 16th century, but the first definitions of a positive law on this right are found in the Code of Laws of 1550, from where it was transferred, with some changes, to the Code. The old redemption period was 40 years. Only patrimonial estates that were served and purchased from the treasury from the estate to the estate, and not purchased, were subject to redemption; estates that were not only sold and mortgaged, but also exchanged to someone else’s family could be redeemed from outsiders (the Code no longer mentions the redemption of exchanged estates), and from 1679, donated to someone else’s family. Whoever bought the estate could no longer sell it to someone else’s family (and this rule is not accepted in the Code). The redemption amount was initially determined not by the sale price, but by a certain price of quarters in accordance with the type and quality of the land, but since 1646 it was ordered to redeem estates for the price for which they were sold. For a profitable building, it was necessary to pay first in court, i.e. according to the assessment, but the Code ordered payment for this to be made according to the testimony of the owner from whom the estate is being purchased. The right of redemption, closely related to the law of inheritance, changed with the publication of the Decree of 1714 on sole inheritance; but following the destruction of this order, a new law on redemption was issued in 1737, constituting the basis of the new law. The redemption period was reduced to 3 years, on the one hand, to eliminate long-term uncertainty for buyers, on the other hand, to protect, for the benefit of the family, the integrity of the estate, which the purchasers did not care about due to the 40-year redemption period. For a profitable building, according to the decree of Peter I, it was ordered to pay according to the assessment. In 1744, new changes followed in determining the right of relatives to ransom. It is provided to the seller's children and grandchildren after his death. The right of redemption for distant relatives is limited - firstly, by the need to seek permission from the family members closest to the seller; secondly, by the appointment (soon, however, canceled) of the line of kinship, beyond which the right of redemption ceases. Finally, in 1766, due to confusion that arose, the final determination of the order in which relatives were allowed to be redeemed took place. Current laws. Redemption differs significantly from purchase and sale. The latter is an agreement between the parties, one of whom voluntarily agrees to sell for an agreed price, and the other buys, so that without the mutual agreement of the parties, purchase and sale are impossible. On the contrary, the party having the right of redemption, without any agreement, demands the surrender of the estate from the owner, who, of course, is forced to yield to this demand. Therefore, with the ransom is connected the forced alienation of property, similar to that which occurs during expropriation; only in the latter case is the violation of legally acquired property justified or explained by state necessity or benefit. For a similar violation in the right of redemption, one can point to the interest of family ownership, protected by law, in order to achieve, perhaps, also a general state goal. But it is permissible to propose a question: in the present state of social economy, and with the current significance of land ownership, should this interest of ancestral ownership still be recognized as so important that it would be possible for it to violate the firmness of legally acquired property? Only family estates sold by private agreement to a stranger are subject to redemption - as a result of this particular sale. Therefore, the following are excluded from redemption: property sold to a member of the same family, even if of a different surname; - an estate sold not by private agreement, but by order of the government at a public auction, or due to unsuccessful auctions, approved by the creditor; - an estate, after the sale, voluntarily returned by the buyer or his heirs to the seller or his heirs 79; - an estate that, upon sale, was returned again by purchase, and not by redemption, to the same family from which it was first sold, for in this case it already becomes legally acquired (Articles 1347, 1348, 1351). The specified marital part, even if it was separated from the family estate, becomes, by allocation, acquired property; but if this part, without being allocated, together with the parts that went to other heirs, was sold to a stranger in the total composition of the family estate, then the right of redemption extends to the entire estate, without excluding this part (1352 Art. This rule was established no earlier than 1849 and has no retroactive effect). In what sense should we understand what is used in Art. 1347? expression: will it be returned voluntarily? Others interpret that this law applies literally only to two cases, which are indicated in the quotations under the article: 1. To the case given in the decree of 1677 and now impossible - when the buyer of the estate returns it to the seller, after petitioning for a note, but before the estate is recorded for the buyer in the order, i.e. before making the transition; 2. To the case specified in the 2nd part of the Bankruptcy Charter of 1800, Art. 50, when the lender voluntarily returns the overdue property to the pawnbroker, before or after receiving the property from the auction. This is a narrow interpretation of Article 1347, but in practice a broader interpretation has prevailed, which better corresponds to the general meaning and spirit of the ransom law. In the decree of August 20. 1677, from which article 1347 is extracted, the basis of the rule contained in it is indicated: “therefore, every patrimonial owner is free in his patrimonial property.” Therefore, the right of the seller’s patrimonial property, when the estate is returned to him, prevails, and the right of redemption must be ceded to him before it has had time to be realized. So, when, simultaneously with the request for redemption, the buyer’s intention to return the property to the seller is declared, the right of redemption is eliminated. In this sense, the decision of the 7th Dep. Sep. 4 Feb 1869, in the Masalitinovs case. General Collection Sep. in the decision in the Kerbedzya case of 1857 (Journal of Min. Just. 1865, No. 6) it was interpreted that the transfer of the estate to the seller should be made in the form of a new sale if the 7-day period for canceling the deed of sale has passed. The General Meeting of the Senate, in the Kozhin case (see Journal of the Min. Just. 1863, No. 4), classifies as voluntary return any reverse transfer of property to a clan by an act of strengthening, of whatever kind, i.e. by voluntary agreement of the parties, at least this return of property was carried out upon the application of the relatives for a claim for ransom. So, in another case, already upon filing a claim for redemption, the owner of the estate, the wife of the seller, announced that she was providing that estate to his young children, and thereby eliminated the redemption, which was confirmed by the Senate, which recognized that the time period for such a voluntary transfer of the estate was not defined in the laws and no formalities were prescribed (Sb. Sen. decision vol. I, no. 168. Compare ibid. vol. II, no. 938). The right of redemption, by origin, was the right of the service class, which alone in the old days could own estates (cf. part one of this book, § 16). Although subsequently the right of land ownership became the property of other classes, and with the spread of the concept of ancestral property to all free classes, the right of redemption also became a common property, but redemption from one class to another is limited by the Decree of 1807. It is recognized that the land sold by the landowner to state peasants, having turned from a noble estate into a peasant estate, has lost its essential properties. For this reason, it is established: lands acquired by state-owned peasants, merchants and other ranks from nobles into ownership, and lands purchased by nobles from those classes should not be given for ransom; and therefore the right of redemption should exist only between people of the same condition, so that none of them should have the right to redeem property that has passed from one state to another. Subsequently, it was explained that this restriction applies only to uninhabited lands, and an article was placed in the Code of Laws (1350 Gr. Law): uninhabited lands sold from persons of one state to persons of another are not subject to redemption. This rule remains in force to this day, since the differences between noble estates and non-noble estates still remain in law; but with the complete destruction of this difference, this rule will have to lose force (cf. this book, part 1, § 13). What should be meant by the word: uninhabited lands, used in 1350? Others think, referring to Art. 385–387. Zach. Gr., that uninhabited land is only empty land, and when there is a residential building on the land, then it should be considered inhabited. But judicial practice is inclined to a different opinion: the land that is inhabited, of course, in the law is the one that is inhabited by peasants and constitutes the possession of the nobility, while lands without peasants are considered uninhabited. This interpretation also corresponds to the historical meaning of the law contained in Art. 1350. And with the abolition of serfdom, this sign of distinction was not lost, for the same division remained in the law. On this basis, Senate decisions refused to repurchase a yard plot sold by a landowner to a peasant (see Cass. decision 1869, No. 138). In addition, the category of uninhabited lands should include lands and lands that remained at the full disposal of the owners after the termination of peasant obligatory relations through redemption, or the conversion of peasants into state ones in small estates (cf. High. approved Regulations April 26, 1862, about the Jews of P. S.Z. N 38214 and Art. 959 IX volume). There are no provisions on the repurchase of mortgaged estates by the relatives of the mortgagor in the articles of the Law. Citizens relating to the right of redemption. Only in Zak. Sudopr. Citizen, in the rules on the procedure for undisputed foreclosure on mortgages, mention is made of the right of relatives to buy out the mortgaged property if the owner himself has not bought it within the one-year period provided to him at this end and if there are no other foreclosures on it other than the mortgage. Relatives are not given a special period for this (Articles 625, 510, paragraph 4). These rules apply where Zak's rules remain in force. Sudopr. Civil., but where they are replaced by a new judicial charter, there, it must be assumed, this right of redemption on mortgages should be considered abolished, because in the new Charter of Civil. Court. it is no longer mentioned, and it is not included in the Civil Laws. We can also point out the following confusion about the right of redemption, which arises as a result of judicial statutes. In 1369 Art. Zach. Citizen it is said that if the sold property is later secured in other hands by sale or mortgage, then the person wishing to redeem must pay the price indicated in the last serfdom deed. The mortgage is classified by law as a serf deed (Civil Law, Art. 708, Appendix I, Art. 18), and as a result, the demand for redemption at the price indicated, after the sale, in the mortgage, had a basis. After the publication of the Court. Statutes there was an objection - hardly a solid one - that by the Judicial Statutes, by Art. 1369. Zach. Citizen, the redemption is indicated only at the price indicated in the last serfdom deed, which can only be a bill of sale confirming the right of ownership of the property. Wed. Kassats. decide 1868, N 185. The demand for redemption is valid against any person who may be in possession of the property sold from the family: not only against the buyer himself and his heirs, but also against those to whom the property could have reached from the buyer by transfer. The blood relatives of the seller are allowed to redeem, in the order in which they would be called upon to inherit after him, and those closest in line and degree are given priority over further ones. Without a doubt, the right of redemption should be determined by the right of inheritance, in accordance with the form in which this latter right would have been presented at the time when the redemption demand was made, if at that moment the inheritance had opened after the seller. Relatives are allowed to buy out, regardless of age or surname. To heirs who are equally close in line and degree, the right of redemption belongs jointly: each of them individually can buy the estate without the consent of the others, but the others can buy the parts that follow them from it. Anyone who does not have a direct right to redemption, being distantly related to the seller and his other closest relatives, can proceed with the redemption only with the written permission of these latter, which includes a concession of the right. In this case, the redemption is given through the line, and then the right of redemption for further relatives is based not on the degree of their relationship with the seller, but on a retelling from his closest heirs (see decision of the General Collection. Sen. in the Stabrovsky case, Journal of the Ministry of Justice 1864, No. 9). But during the life of the seller, his children and, after the death of his unseparated children, his grandchildren are not allowed to redeem; They are allowed only after the death of the seller, if the period has not yet expired and the estate has not yet been purchased by others. During the life of the seller, they cannot cede the right to other relatives, because they themselves do not have it (Articles 1355–1361). Those relatives who, instead of the sellers, put their hands to the deeds of purchase or when making a note in the land registers, or signed the certificate (Article 1362), are also not allowed to buy out. The general period for redemption is three years from the time of final execution of the deed, i.e. from the time it is issued to the buyer, after the end of the entire ceremony. This period is not restored to those who, challenging the act itself, according to which the estate passed to someone else’s family, missed the redemption period (Articles 1363, 1366). since during this period the right of redemption is granted to relatives without distinction of age, in practice it was recognized as impossible to continue this period for minors or to suspend its course until they reach adulthood (decision of the Moscow General Assembly of 1860, in the case of Princess Khilkova; Cass. decision of 1882, No. 48). Redemption is allowed only under the condition of remuneration, for the law says: whoever wants to redeem the estate is obliged to pay the money following the redemption. So, it is impossible to demand an estate for redemption without at the same time offering the next price for it, and redemption between private individuals cannot be brought under the rule of compulsory alienation, according to the meaning of which property is alienated due to state necessity recognized by decree, and the next remuneration for it is determined and issued afterwards. Therefore, in practice, it was recognized that a demand for ransom, without the presentation of money for the ransom, was invalid and that this money should be presented at the time of the request for ransom (Cass. decision. November 20, 1873, according to the village of Grigorova). But not all subsequent payments during the ransom seem equally clear and indisputable, and not all can be calculated at the very beginning of the case, at the discretion of one party demanding the ransom. The redeemer of the estate must pay: firstly, the price of the sold estate, in the amount indicated in the fortress by which the estate passed into another family; and if the property has already passed into other hands from the first buyer, and before the subsequent act there was no demand for redemption, then the price indicated in the last act must be paid; secondly, he must pay serf duties following the new transfer of the estate back to the clan (1367, 1369 art.; that the law refers to these duties is confirmed by the decrees of 1800 and 1806 given under the article). These payments are indisputable, which in any case go to the owner of the estate and to the treasury. Without them, no ransom can be made, and they can be counted in advance by the redeemer himself. Therefore, these amounts must certainly be presented at the time of the request for redemption, and upon presentation they are sent, until the end of the case, for storage and increment to the Bank (1370 Art.). The law also mentions other payments which, depending on the circumstances of the case, may or may not be due to the owner of the estate from the redeemer. These are, firstly, the costs that the owner could have spent on maintaining and improving the estate, and, secondly, the duties that the owner, when purchasing the estate, could pay for the execution of the act by which he took possession of the estate. These payments cannot be foreseen and calculated in advance by the applicant for redemption, because, firstly, no improvements could be made to the estate at all, and ruin and a decrease in value could still follow, for which the owner is obliged to answer according to the force of Art. 1372; secondly, if there are improvements, then the petitioner is not obliged to know about them, and taking into account their value depends first of all on the testimony of the owner himself and then on the assessment; thirdly, the buyer of the estate is not necessarily obliged to pay duties on the deed; to whom to pay these duties, it depends on the agreement of the parties when making the bill of sale (1428 Art. Civil Code), and it could happen that the duties were paid by the seller. So, due to the conditional nature of these payments, it is impossible to demand that the redeemer himself volunteer for them and determine their quantity: these payments are determined only by the return demand of the owner to the redeemer and, in the event of a dispute, by the procedural development of the case and the court decision; therefore, in all fairness, it is impossible to make the completion of the ransom case dependent on these payments: they can be determined and made during the ransom itself, but they can also form the subject of a special case, and after its completion they are recovered from the accused. But then another question arises: how are they collected? The costs of maintaining and improving the estate constitute a duty that is essentially inseparably associated with the redemption (although, according to the conditions of the process, accounting for them may be the subject of a special proceeding); this follows from the text of Article 1367; therefore, it is necessary to recognize: 1. That the collection of these costs can, at the request of the claimant, be directed to the redeemed estate itself; 2. That, in order to secure a claim for these costs, a prohibition may be imposed on this estate at the request of the claimant. But this advantage cannot be given to the collection of duties, specifically defined by Art. 1371. and not included in the payments, which are included in the general formula of Art. 1367. The right of redemption, although transferred by inheritance, does not, however, constitute hereditary succession and does not constitute a gratuitous acquisition. Therefore, personal liability for the debts of the seller, according to the nature of which the ransom was given, does not depend on the ransom (cf. Sat. Sen. decision vol. I, No. 323. See § 47 for another decision, which argues differently). Where should redemption cases be started and in what order should they be carried out, whether they constitute a claim or an undisputed claim - these questions constantly raised confusion in previous judicial practice, especially with a unclear understanding of the difference between indisputable and controversial or claim proceedings. The very jurisdiction of these cases was determined differently - either by the place of execution of the deed of sale, or by the location of the estate, and the proceedings of the cases turned either to a private procedure (which was given the reason for the expressions used in the decree of December 19, 1778 and in Article 4049 of Volume II of the St. Ob. Provincial Institution, published in 1857), then, in case of a dispute, to the appeal. These perplexities should, apparently, cease with the publication of a new Judicial Charter and additional rules for protective proceedings. According to the force of these rules (1438–1450 Art. of the Constitution of the Civil Court), a request for redemption is submitted to the District Court, at the location of the property being redeemed. When making a request, the following must be submitted: evidence of the applicant’s right to redemption, a copy of the deed of sale, the sales amount indicated in it, and double the amount of serf duties paid when making the deed of sale. This unconditional obligation to pay double duties does not contradict the conditional provision of Article 1371, since it relates only to the formalities of production, but does not resolve the issue of the owner’s right to collect duties. The request for redemption is communicated to the owner, who is obliged to provide his explanation, and if he wishes to file a claim for the costs of the estate, he must provide information about these costs. If this explanation is not delivered within a month, the court, based on the applicant’s evidence, draws up a redemption order, which is not considered absentee, but can be appealed privately. If the explanation is delivered after a contest between the parties who have appeared, the court determines whether the redemption will be allowed and the amount of costs due to the owner. Such a determination is also considered private and allows both a private complaint and subsequently a request for cancellation. But if the owner does not file a claim for costs during protective proceedings, he is not deprived of the right to bring it, by virtue of Art. 899. Est. Citizen Sudopr., within 3 months, in the order of executive proceedings. In decision 1880, No. 126, the Senate clarified that when asking for redemption, the sales amount must be presented only when it is to be issued to the owner of the returned estate, or to the mortgagee; if the property being redeemed is pledged to a credit institution and the loan issued is not less than the price for which the estate was acquired, and if, according to the charter of that credit institution, the debt on the pledge is transferred to a new acquirer, then the upcoming transfer of the debt excludes the obligation to provide money to repay the said debt. The person who redeemed the property may demand that it be given to him intact (Article 1372 Civil Law). Hence, the redeemer has the right to sue the owner for a decrease in the composition and economic integrity of the estate due to arbitrary orders. This claim, by its nature, requiring special evidence on the part of the plaintiff, does not have an inextricable connection with the demand for ransom, and therefore, if in connection with this demand the petitioner, while filing a claim for compensation, sought at the same time a deduction from the redemption amount, which he is obliged to submit, the owner of the estate has the right to demand that the claim for compensation be carried out separately from the case of granting the ransom, and the redemption amount was presented in full. The extent of the owner's liability for reducing the integrity of the estate should be determined on the basis of rules 609 and the following articles of the Law. Citizen about private remuneration, and there is a significant difference between ownership in good faith and in bad faith. 1891 March 27 No. 40. On the issue of the binding nature of previous agreements concluded on the purchased basis, on the basis of 1346 et seq. Art. t. X part 1, family estate, Civil. Cass. Dep. reasoned that the ransom orders not only do not limit the rights of the alien in any way under Art. 420. I part X t. at the disposal of the estate subject to redemption, but, on the contrary, from Art. 1369 it is clear that the price of the redeemed estate is determined not by the act of acquisition of the first alien, but on the basis of the serfdom deeds of subsequent acquirers. Thus, during the period of time specified in Article 1363, the alien has the right to pledge and sell the estate subject to redemption, and according to this, other contracts on this estate, concluded during the same period of time, should be considered to come from a person acting within the limits of his right, and as such serve for the other counterparty as a source of right, legally acquired and therefore protected by law. In view of this, the Department. finds that lease agreements concluded by the buyer of a family estate are also binding on the buyer. The right of redemption does not apply to the provinces of Chernigov and Poltava (Article 1354 of the Civil Law). The kinship right of redemption exists according to the laws of the Baltic provinces, extending, in general, only to hereditary immovable estates, and, according to special statutes of some localities, to those acquired, and even sold at public auction. Relatives are allowed to buy out in the order of calling to inheritance; men exclude women only in case of competition. Renunciation or removal of inheritance does not deprive the right of redemption (Ostz. Civil. Laws Art. 1654–1673). In 1874, it was decided that the right of redemption does not apply to plots of peasant tax land (in Livland) and peasant lease land (in Estl.) alienated from hereditary estates. The right of redemption, closely related to the beginnings of family life, is developed especially in the law of Montenegro. This is how it is presented in the Law Book of 1855 and especially in the new Code of 1888. Any sale of a plot of land to a foreign tribe is considered legal only in such a case when one of their own did not want to buy it. They are recognized as their own in sequential order of proximity: blood relatives (according to the degree of relationship in 6 clans) or members of a brotherhood, then adjacent neighbors, then villagers of the same village and finally members of the same tribe. All of them, in sequential order, must first be offered the right to purchase, with a deadline set. During a public sale, a call is made to those willing from the whole tribe, and the sale is made after a month from the time of the call, and is confirmed 6 hours after the auction is completed, if those willing from among their own do not show up; and then any right of redemption is extinguished. Redemption does not take place in case of exchange or gift. Among the commission on measures to maintain noble land ownership, there arose, among other things, an assumption about the abolition of Article 1350. Zach. A citizen who does not allow the redemption of uninhabited lands sold on behalf of one state to persons of another. The commission considers this measure useful for protecting the strength of noble land ownership in view of the fact that after the emancipation of the peasants and their redemption of estates and field land, the landowners' estates lost the property of being inhabited, and as a result of this, the range of application of redemption regulations was narrowed: these estates, sold to another class, as uninhabited, ceased to be subject to redemption. At the same time, the commission proposes to issue loans to the nobles for redemption from the noble land bank. It should, however, be noted that the concept of the so-called German beginning of inheritance has not yet been completely established in science. It was considered indisputable, but has recently been criticized, first in the writings of Siegel (Deutsches Erbrecht nach den Quellen des Mittelalters. Giessen. 1853) and Wasserschleben (Das Princip der Successions-Ordnung. Gotha. 1860). A lively debate on this subject is still ongoing. Those interested can get acquainted with her through the articles: Bluntschli, Zur Lehre von dem deutschen Erbrecht, in Krit. Web. 1853, Levisa, Zur Lehre von der Successions-Ordnung – in Krit. Viert. 1867. See also Gerber - System des deutschen Privatrechts, 8. Aufl. page 652. From this basic rule of primogeniture, an exception has been made since ancient times for some estates in the county of Kent, which have the special property of Gavelkind (Gave all kinde), i.e. property of distribution between all children. In 1870, it was planned to introduce a bill into parliament to equalize both orders. Due to this origin, the legal Roman concept of idle inheritance (hereditas jacens) is alien to German law (cf. Art. Windscheid - Die ruhende Erbschaft in Kritische Ueberschau. 1853): but in ancient German customary law special legal significance was attached to the thirty-day period from the time of the death of the patrimonial owner. The basis of this custom was the idea that in the first time after the death of a person, peace should rest on the home and on all its affairs, and grief for the deceased should not be disturbed. As a result, the widow of the deceased could live peacefully in the house - the heirs would not disturb her; if she is pregnant, she stays in the house until permission. The servants also remain in their places and are paid for up to thirty days. The will is not opened until the same date. There is a monograph by Homeyer on the law of the thirtieth day (Berl. 1864. Der Dreissiqste). On the essence and accessories of this claim, see the interesting article by Zimmermann: Die Theilung unter mehreren Kommunions Interessenten in Arch. Civ. Pr. 1851 It should be noted that the opinion about the difference between special orders of inheritance, according to the lengthy Russian Pravda, has not yet been finally established in science (cf. Nikolsky and Tsitovich). According to local law in Georgia, Imereti and Guria, brothers (and their descendants) buy the specified part from the sister in the manner specified in the appendix to the note to Art. 1130. Zach. Gr. Hereditary parental rights are found among peoples only in later times of their history. According to Nevolin’s remark (Istr. Gr. Zak. vol. 3, p. 353), among peoples leading a simple life, with the strength of the family union, children usually do not live in separation from their parents. If children die in this state, then usually they have no separate property left; if they died separated from their parents, then by this separation the parents seem to renounce all participation in the estate of the separated children. For Georgia, Imereti and Guria, the local right of redemption of the widow's decree by the heirs remains in force. See Zach. Citizen 1148 1 and 1153 1. Wed. Uk. March 15, 1770 (No. 13248), where it is said that inheritance is generally approved not by petitions or receipt of dachas by the heirs, but by the cause of death, and citations under Art. 1152. Citizen Zak., from which it is clear that the allocation of the widow's share should be made only by petition. This is the rule of Art. 1170. does not apply to Catholic clergy; see J. M. Yu. 1865, No. 12. In Art. 1177 and 1180 indicate two more cases that essentially do not relate to escheat, but rather to confiscation. The rules on this subject were part of the Code of Laws in the form of an appendix to Art. 1097 vol. IX, ed. 1857; but they were not included in the 1876 edition of this volume, in all likelihood for the reason that they were significantly changed by the 1870 regulations on the land structure of villagers settled on the lands of persons of the highest Muslim class: members of the former khan families, beks, agalars and meliks from Armenians. Nevertheless, many of these rules still constitute the current law, not repealed by anything, and therefore their exclusion from the Code is hardly correct. By order of the Ministry of State Property, information was collected and published in 1862 about the customs of inheritance existing among state peasants in 47 provinces. In the book by Mr. Efimenko “Collection of folk legal customs of the Arkhangelsk province” and in the article by Mr. Chublinsky “Essay on legal customs in Little Russia”, customs related to inheritance are indicated. Published in 6 volumes, “Proceedings of the Commission for the Transformation of Volost Courts” (St. Petersburg, 1874) contains many references to inheritance customs among peasants. The heir, before opening the inheritance, enjoys the special right of an heir in the elections of the nobility, see Vol. IX, Art. 114. On the sale of property that was inherited, see the article in Legal. Vestn. 1869, No. 1. For the duties of the police to protect inheritance, see II vol. ed. 1892 General Lip. Institution, art. 681 clause 16. On the protection of property after the death of a familyless consul in Persia, Const. Consular ed. 1893, art. 125. On the protection and sending of things after those who died in military hospitals, see July 15, 1869 (47310) § 283, 305. In 1894, special rules were issued on the procedure for calling heirs after deceased foreigners from Turkish and Persian subjects and Asians in general. I leave these words as before, despite the objection made against them by Mr. Gerard in his curious article: On the protection of inheritance (Journal of Gr. and Ug. Pr. 1873). The objection seems to stem from a misunderstanding. The author is in vain to see in my conclusion a contradiction with the considerations expressed in the journals of the State Court. Council when publishing the Charters of 1864. It talks about a law that did not require mandatory inheritance; I’m talking about judicial practice, which actually always presupposed approval in inheritance. rights And this statement was made at that time without taking protective measures, as an indisputable proceeding. It is considered a sign of commercial insolvency when the heirs, not entering into the inheritance due to its disproportion with the debts, refuse to accept it and announce it in court, or they do not appear on time when published, or the creditors do not believe them. Est. Court. Bargain. ed. 1893, art. 368, paragraph 3. In the Myasnikov case, the decision of the Senate (J. M. Yu. 1862, No. 6) recognized that Commercial Courts should take measures to protect only trading establishments, and only when the owner leaves the trade books; in all other cases, the protection of property left after the deceased, even a merchant, belongs to the police. There is not a single article that would establish the obligation and determine the legal significance of such publications, although in the general opinion there is a vague notion that such publications are necessary and have some kind of force. Probably, this vague opinion was also reflected in some articles of the Code, in which reference is made to such publications. See, for example, Art. 6 adj. to approx. 2 to art. 420 Zak. Citizen; pl. Sovereign Sov. 1869 about preservation. receipts (2113 Art. Civil Law) also presupposes the existing ritual of calling heirs and creditors. This is the rule of French law; on the contrary, Prussian law allows in this case inheritance in place of the abdicated one. Wed. in Pukhta Vorlesungen, § 457. However, his heirs can ask for the payment of a well-deserved salary after the deceased only within two years after his death (III T. Statute of service rights. 575). Here are some more rights granted to the heirs of the deceased. In some cases, the widow and heirs of a deceased official have the right to receive money that the deceased not only did not receive, but also did not serve, but which were assigned to him in the form of an allowance for future service. T. III. Est. pence, st. 114; adj. to Art. 261 (approx.). The widow and family of a deceased official have the right to remain in his official apartment for 6 weeks after his death. T. III. Est. servant right, art. 554. In the lips Chernigov and Poltava responsibility for the payment of a penalty on private obligations passes to the heirs only in such a case when the claim for a penalty is initiated during the lifetime of the deceased, or in the obligation itself and the payment of the penalty is extended to the heirs. Zach. Citizen 1586. For conditions and consequences of liability, see the previous §§ 46 and 47. The division of inheritance should be distinguished from the division of ownership to one place (special demarcation, love story). It is essential in the division of inheritance that each individual's individual share be quantified; The essence of the boundary division is that everyone is assigned ownership in a separate area, instead of a mixed stripe. If the heirs themselves do not wish, the law does not force them, when dividing the inheritance in a real estate, to share in one place (Civil Law 1323); but if the dacha is divided by hereditary division, the law requires that no later than 3 years after this, the possession should be separated by drawing up a love story. In Art. 217 Pol. Collection Citizen Another case of forced judicial division is given when collecting the debt of one of the owners from common property. If on this occasion a dispute occurs between the partners in common ownership about the amount of the share due to the debtor, then the disputants are sent to the court for division. Comp. 1190 art. Est. Citizen Sudopr. About the allocation and its analogy with a dowry, see more conclusions and explanations in Volume I of this course. Mr. Orshansky objects to the concept of allocation and dowry presented here in Zhurn. Gr and Ug. Ave. 1873, No. 2, p. 49. Thus, according to the village of Ponomareva (Sb. Sen. decision I No. 168), the seller’s sister was denied the redemption of the estate, which he had sold to his wife, and this latter, upon presentation of the redemption demand, voluntarily provided her and the seller’s minor children.