Третий отдел. О духовных завещаниях

Chapter one. General concepts and institutions of testamentary law § 53. A will is a unilateral act of will. – General forms of wills. – Codicil. - Verbal will. – Privileged wills. – The right to make a will and persons incapable of doing so. – The right to acquire by will. – Appointment of an heir. – Refusals or legacies. – Conditional appointments. – Substitution The expression of the last will is an essentially one-sided act. Adhering strictly to this concept, Roman law did not allow either inheritance contracts or mutual wills (test. reciprocum), in which the will of one person is expressed in direct or indirect dependence on the will of another. In general, in Roman law, a will made on behalf of two or more persons was considered impossible: such a split is incompatible with the unity and free will of the testator. Likewise, French law does not allow either a mutual will, or even a joint one, even in favor of a third party (Code C. 968, 1097); German laws (Prussian, Austrian) allow mutual wills between spouses, in the sense of an inheritance agreement. All legislation pays special attention to the form of wills, and therefore the forms of this act are very diverse. A written will is not required everywhere. In general, the possibility of verbal wills is not eliminated, as long as it is possible to prove their reliable content - which is extremely difficult. Other legislation, such as Prussian legislation, allows a verbal will only in some cases and when the matter is not about the assignment of an entire inheritance, but about a private renunciation of an inherited estate. French law does not allow simple verbal wills, without a formal declaration before a notary and witnesses. In all legislation, in addition to the general form of a will, a special, simplified and simplified form is also allowed for those cases in which compliance with the full form would be impossible or difficult. General forms of wills. In Roman law, a will is different from a codicil. The will (testamentum) must contain the designation of a direct heir. Codicillum (codicillum, memorial letter) contains orders entrusted to the heir, or assignment, refusal of individual property. For a will, either an extraordinary form of a public act is used (belonging to a later era - an act submitted for approval by the government office or the monarch himself), or an ordinary form (t. privatum). Its essential condition is the presence of seven adult male witnesses, deliberately invited (testes rogati, t. solemnes). If the will is verbal, they testify to its authenticity and its exact contents; if it is written, they can testify to its authenticity alone, even if the testator only signed it in front of them or declared it his own without revealing its contents to them. In any case, they seal it with their signature and seal. For a codicil, five ordinary witnesses are sufficient, with their signature, without a seal; and this formality is not necessary if the codicil is an addition to the will in which it is mentioned. There is only one will, there can be an arbitrary number of codicils, and this additional form also provides the convenience that an act that is invalid in the sense of a will can still be valid in the sense of a codicil if the testator included in it the so-called codicilla article (clausula codicillaris). These Roman forms of testamentary disposition passed into German law, along with the distinction between wills and codicils. Nowadays, of the German laws, the strictest regarding the form of wills is Prussian. Prussian law only in special cases allows, as an exception, the domestic form of wills; In general, the will must be presented in court, i.e. or a note in the court record of the last will, verbally declared, or the deposit in court of a written, sealed will. In both cases, a personal, direct appeal of the testator to the court is necessary. Codicils are not excluded from this rule if they are written for more than a twentieth share of the hereditary estate; otherwise, it is allowed to draw up a home deed, handwritten, or with a notary and one witness (Pr. Ldr. I, 12 § 7, 66, 160–174). On the contrary, in Austrian legislation the general form of wills is significantly simplified and simplified: for a deed written and signed in one’s own hand, no certificate is required at all; otherwise, three witnesses are required, of which - in the case of a verbal will - at least two must give completely consistent testimony about the contents of the last will (577-596). French law, for the convenience of testators, established a three-fold form of will: 1) a handwritten will (t. olographe), rewritten in one’s own hand and signed with a number: this is the simplest and most convenient form for any place and time, not requiring the announcement of the last will; 2) a public will (t. publique), which certainly requires announcement and, in addition, the participation of two notaries and two witnesses or one notary and four witnesses, and it must be dictated word by word by the testator, written down by the notary and then read aloud to the testator in the presence of witnesses; 3) secret will (t. mystique) is a form in which people who can only read can express their last will without announcement. The testator, having written a will in his own or someone else’s hand, presents it in a sealed envelope to a notary, who, in the presence and signature of many (6) witnesses, draws up an act on the envelope itself (acte de suscription) stating that the envelope, according to the personal declaration of the testator, contains his last will. This form corresponds to the general form of the Roman will (Code C. 967–980). French law only knows the will and does not mention the codicilla. The ancient form of canon law - to declare a will, or to draw it up before a priest, spiritual father, with two witnesses - is not accepted by civil law in the West. Privileged or special wills. Differences in the form of wills are established for some persons, or for some cases, mostly in the form of simplifying the form, but sometimes in the form of increasing precautions (such, for example, according to Roman law, wills of the blind, with the addition of a witness, etc.; in France (978, 979) wills of the illiterate; wills of the French abroad (999, 1000); Prussian wills those who cannot write and speak foreign languages). The most famous of the relief forms is the form of a soldier's will. Roman law did not require any formalities - it only required the ability to certify the will of a soldier if he makes a will during a campaign; such a will remained in force for a year after resignation. In the latest legislation, the benefit is not so great. Prussian law recognizes as sufficient, during a battle, a verbal declaration of will to two witnesses or a chief officer; at other times, a written form with witnesses is required. In the first case, the will becomes invalid upon returning from the campaign; in the latter, a year after the peace. However, non-military people are also provided with a similar benefit in the midst of military dangers. French law provides benefits to military men in a state of siege, or in service outside the fatherland, or in captivity of the enemy. The whole benefit is that instead of a notary and 6 witnesses, the participation of a military commander, or a commandant and two witnesses is allowed. The validity of a military will is limited to 6 months upon return. Special simplified forms are allowed for wills drawn up during a contagious illness, during a sea voyage, in a village or among peasants (Romans, French). Prussian law, retaining the later Roman form of a will declared directly to the monarch (t. principi oblatum, dem Landesherrn überreichte Testament), assigns it the meaning of a privileged one. In England, a will must be written: verbal wills (nuncupative wills) are allowed only for soldiers. For the validity of the deed, it is only required that the signature be made or acknowledged by the testator in the presence of witnesses, at least two, who sign on the deed. The right to make a will (testamenti factio activa) belongs to anyone who enjoys the fullness of civil rights and the power associated with them (Rechtsfähigkeit). This fullness comes with age. The will assumes complete freedom of personal will, and therefore for minors it is not allowed to supplement the personal will with the will of the trustee in the testamentary act. To eliminate the inconveniences associated with this rule, the laws allow for a special age of majority for testamentary power. In Rome, 14-year-olds (12 for a woman) were allowed to make a will. Newer German laws allow full testamentary power at age 18; French law requires twenty years and a year for this. But even before these deadlines, incomplete power is allowed; Thus, in Prussia and Austria, a 14-year-old is allowed to declare a verbal will before the court. French law, while not giving 16-year-olds the power to make gifts, allows them to make bequests, but not more than half of what they could as adults. Previous laws almost everywhere in the West deprived a woman of the right to make a will without the consent of the guardians or direct heirs; This prohibition has now been lifted everywhere (except England). And where a woman is deprived of the power to make gifts, she is given the right to make a will (with the understanding that this last right does not violate, during the woman’s life, the husband’s or other authority placed over her) 80 . Confessed spendthrifts can, according to Prussian and Austrian law, bequeath only half of their inheritance. According to French law, a spendthrift, an unimpaired mind, and even a feeble-minded person, if only a legal guardian (conseil judiciaire) is represented to one or the other, can make a will without his consent. According to some legislation (for example, Austrian), testamentary power is limited or completely abolished by certain crimes, entry into monasticism, etc. The right to acquire by will (testamenti factio passiva) is also assumed together with the fullness of civil rights. Some persons are declared incapable of acquiring by will, either unconditionally or relatively, due to a special relationship to the testator. Persons who were not yet conceived at the moment of the testator's death are considered incapable. This rule, common to inheritance by law and by will, is accepted almost everywhere. Only in the Italian code is an exception made from it (Article 764): the children of a famous person who is alive at the death of the testator can acquire by will, even if they themselves were not yet in conception at that moment. Those sentenced to punishment, which by law deprive them of the right to acquire by will, are considered incapable; Thus, according to French law, those awarded peine afflictive perpetuelle are deprived of this right: they are provided with only maintenance (aliments) by will. Waivers to institutions and corporations are subject to special restrictions: they require the approval of the subject government to be valid. The law declares some persons incapable of acquiring property due to a special relationship with the testator. The purpose of these prohibitions, which are not the same in different legislations, is moral: to eliminate the expectation of profit, calculation or selfish transaction in relationships, the moral purity of which is protected by law. (Sometimes this prohibition between two persons is mutual, sometimes it is only unilateral.) French legislation is especially abundant in such prohibitions, which generally extends far to concern for the protection of moral relations through preventive measures. So, for example, French law prohibits a guardian from acquiring by will from a pet while the latter has not yet left guardianship and even after that, if the guardianship accounts have not yet been cleared; illegitimate children - from the father, in excess of the legal share; to a doctor and priest - to acquire from a patient whom he treated or gave instructions before death. Appointment of an heir. The essential content of a will, according to Roman law, is the appointment of an heir, and, moreover, a direct one, i.e. the appointment of a successor who directly, without mediation and independently of any other person, has the right to assume the rights of the deceased in property (this is called institutio heredis, Erbeinsetzung). This purpose must be clear, beyond doubt (certum consilium testantis) and have in mind a known person (certa persona, quam certa opinione animo suo testator subjiciebat), i.e. it is required that the identity of the heir be clearly identified, even if not directly named. A will without the appointment of a direct heir is unthinkable (in primis opus est, ut aliquis recto jure testamento heres instituatur ejusque fidei committatur ut eam hereditatem alii restituat: alioquin inutile est testamentum, in quo nemo heres instituitur). The testamentary designation of an heir extends either to the entire inherited property or to a quantitative share of it (quota pars). If, according to a will, only certain things, property or sums are assigned to known persons, without direct hereditary determination, these persons become only successors of the right to a known thing (singularis successio) and are called legatees. A legatee is not an heir. The heirs all together enter into the integral right of the deceased in property (in universum jus) and limit each other mutually in one exclusive circle, so that if one of them were to leave, his share goes to increase the rest (jus accrescendi), for they all inherit together and intact. By inheriting, they enter into the estate directly, and not through someone else. Because of this, they represent the civil personality of the deceased and are liable for him in property without limit. But the legatee does not represent the deceased, is not responsible for him, and receives the assigned property not directly, but from the direct heirs. The testator can appoint not only one, but as many heirs as he likes, and determine the share of each, or assign everything to everyone together: in the latter case, they inherit equally (the whole inheritance is technically called as; heres ex asse - the only heir of the whole; quantitative shares of the inheritance - unciae, of which there are an approximate number of 12; 2 ounces - sextans, 3 ounces - quadrans; hence - heres ex uncia, heir in share). In any case, inheritance under a will certainly embraces the entire totality of inherited property (the complete opposite of Russian law, according to which there can be an inheritance both by law and by will at the same time). Roman law does not allow intestate inheritance of property remaining outside of the will; but just as the inheritance by law belongs in its entirety to the legal heirs, so the inheritance by will belongs in its entirety to the heirs in the will, so that if any part of the hereditary estate is left without direct assignment in the will, it is distributed according to the allocation (pro rata) among the heirs appointed in the will, as an indivisible part of the whole or an increment to the whole; So exactly, the resulting deficiency is distributed among everyone to reduce everyone’s share. This property is expressed in a well-known provision of Roman law: nemo pro parte testatus pro parte intestatus decedere potest 81, and in connection with this property the Roman difference between a will and a codicil consists. This Roman strict concept of inheritance by will was reflected in general German law, but has lost its force in many new legislations. Austrian law does not accept it at all, allowing inheritance by will along with inheritance by law (Oest. Ges. b. 554, 556), if there remains property not specified in the will. Prussian law allows such a combination of testamentary inheritance with legal inheritance only in the case when it was the will of the testator (Lrd. 1. 12. § 254–260). French law did not strictly adopt the Roman provision for the appointment of a direct heir under a will. No matter how the testator expressed himself in his will, whether he appointed a direct heir or a legatee, the law assigns equal force to both orders; but, establishing a threefold distinction between legatees: legataire simple, à titre universel and universel, the French code assigns to the latter the full right of heir with full representation (if there are no heirs at law); but the legataire à titre universel is not considered a direct heir: he is only the successor of the property (successeur aux biens) and is responsible only to the extent of what he received (Code Civ. 1003–1013). Whoever accepted a simple refusal is not at all responsible for the debts of the deceased, unless a cut would be required to replenish the deficiency to satisfy all refusals or to replenish the legal share of the direct heir (Article 1024). In general, when there is an heir to the estate and a complete unified acceptance of the inheritance follows, then the creditors of the deceased patrimonial owner become creditors of the heir on an equal basis with his personal creditors; and those persons to whom simple refusals are made enter into the same position, for they demand satisfaction from the same heir. Therefore, in practice, it is accepted that the creditors of the deceased, if they wish to be satisfied primarily before the successors of simple refusals, must ask for the separation of the debts of the deceased from the debts of the heir (separation des patrimoines). Conditions. In all legislation, general provisions on conditions are usually placed in the general part of the doctrine and contracts and obligations. Therefore, regarding wills, it would not be amiss to point out here the main types and properties of conditions. The determination of the will is made under an affirmative condition (cond. affirmativa: if this and that happens) or negative (c. negativa - if it does not happen); the condition can be made dependent on an arbitrary action in the power of a person (cond. potestativa: if Ivan takes care of his brother, if he completes a course at the university, if he gets married), or on a random event (c. casualis: if Ivan has children). The beginning of a right or a legal state (cond. suspensiva) or the termination of one or the other (cond. resolutiva) can depend on the condition. The condition may turn out to be physically or legally impossible to fulfill (quae natura, quae jure impleri non possunt) or morally impossible (c. contra bonos mores, c. turpis). The condition is considered false (pendet conditio) while it is still unknown whether the conditional event will follow or not; the condition disappears (deficit) when there is no longer any doubt that the conditional event will not follow at all; a condition is considered to have occurred (impletur, existit) when the conditional event occurs. While the condition is still incorrect, the interested person, who is under the condition (sub conditione), does not yet have the right that should arise for him with the onset of the condition, therefore, he cannot demand implementation, but has only an expectation, an expectation of implementation in the future (spes debitum iri, jus futurum), but by virtue of such an expected right, the interested person can oversee the protection of the property or right constituting the subject of interest, and his expected right can, depending on the property of the relationship, pass to to his heir. The other party, from whom performance or implementation is expected, is under a conditional duty and should not interfere with the occurrence of the agreed event. With the onset of the condition, the right of the interested person arises and comes into force by itself, without any special declaration of will; The effect of this right in any case goes back to the minute when the condition occurred. The essential property of the condition is the unknown, the infidelity of the event with which it is connected; As a result, the law associated with the condition also becomes incorrect. When a condition is impossible, it automatically disappears, because at the very beginning it is probably known that the event will not happen. On the contrary, when the right is associated with a period, i.e. with the onset of a certain moment in time, then the right at its very beginning receives fame and fidelity, but the implementation of the right only becomes distant, because with the passage of time a certain moment in time must certainly come. This is the difference between a condition (conditio) and a term (dies), and this difference is reflected in the acquisition of the right associated with one or the other. A term, like a condition, can have either suspensive or cessatory force (see Savigny. System. III. pp. 120–226). The appointment of an heir could, according to Roman law, be either unconditional or conditional, as long as the condition was not immoral and illegal. The appointment of an heir under the condition of a future, possible but unknown event was allowed. So, the possibility was allowed, after the death of the testator, of such a period in which it remains unknown who will be the heir and whether the person who was appointed conditionally will actually be the heir. (It is useful to pay attention to this in view of our existing opinion about the impossibility of allowing the appointment of an heir under a suspensive condition.) But despite this period of uncertainty, the concept of continuity of hereditary succession was not violated in the least, for, according to Roman law, upon the occurrence of the condition, the right of the appointed heir returned initially to the moment of death of the patrimonial testator. This reversionary effect of the right, consistent with the property of inheritance, did not apply to a separate refusal. It is clear, on the other hand, why Roman law did not allow such a period of uncertainty, when the appointment of an heir was connected with the term; in this case, the deadline was eliminated and was considered optional. The right associated with a suspensive period, having been made dependent on an inevitable event, receives, as stated above, from the very beginning full knowledge and certainty; therefore, in this case there is no reason to delay the onset of the right until the deadline, and continuity of succession declares itself immediately. The return action that was indicated in the previous case (with a suspensive condition) can be performed at any time by the disappearance of the suspensive period (see Savigny. System. III. pp. 152, 211). As for the condition or term of termination, this action was not allowed by Roman law in the appointment of an heir, and such a condition was recognized as non-existent, due to the rule that the right of succession, once acquired, continues uninterruptedly and cannot terminate (semel heres semper heres; heres manebit, qui semel extitit). These decisions of Roman law have also been adopted in the latest legislation, in which there is a legal concept of the appointment of an heir or common successor to the testator. It is worthy of note that the ruling of the Italian code (Articles 857, 859) states that before the occurrence of a conditional event that has suspensive force, one of the co-heirs or the heir of the testator presumed by law to be appointed administrator of the inheritance. Due to the vagueness of our terminology, we use only one name - condition, in the general sense of a conditional or statutory, constituent definition of will (qualified). But within this general concept, significantly different categories must be distinguished. Thus, in a legal sense, the condition (conditio) differs from the constituent definition (modus, mode, Zweckbestimmung, Verwendung) regarding the manner of use of property and the use of it, or the imposed duties (charge), - a definition that constitutes the exclusive property of deeds of gift and testamentary acts. Both in this and in the other there is self-determination of the will about the measure and quantity of the created right, and the difference between one and the other is as follows. In the condition, the very formation of the right in the person of the acquirer is made dependent on a conditional event (if this and that follows, when the due time comes, if such and such a quality appears, if such and such an action is performed); but the condition itself is not enforceable. On the contrary, in a pure constituent definition, the acquisition of a right does not depend on a predetermined action or event; This right comes into force by itself, but as soon as it arose, the constituent definition acquires compulsory force in it. As a result, the latter is more convenient and beneficial for the person to whom it relates than the first: the acquisition of the right is carried out correctly, without delay and without risky reliance on an incorrect or only possible event, and in the event of the impossibility of fulfilling a certain thing, this impossibility does not turn to the detriment of the acquirer, for then the determination that binds him completely disappears. But both the condition and the constituent definition are not always found in their pure form: the latter sometimes contains the former; Therefore, it is very important in each given case to determine the true meaning of the testamentary will, by expression, by intention and by the subject to which it relates: what is essentially contained in it - a condition or a constituent definition. Roman law indicated, in case of doubt, to interpret the will closer in the sense of a definition than in the sense of a condition (see Savigny. System. III § 128. Scheurl. Zur Lehre von den Nebenbestimmungen, Erlangen. 1871). Substitution. The most significant form of conditional wills is the so-called substitution (substitutio), i.e. the appointment of a subsequent heir, who should inherit after the first person chosen as heir, the establishment of hereditary succession not only in the event of his own death, but also in the event of the death of the heir closest to the will. In Roman law, 4 types of substitution were known. 1. Simple substitution (s. vulgaris): the appointment of a substitute heir in case the real or advanced heir is unable or unwilling to accept the inheritance. 2. Parental substitution (s. pupillaris): the appointment, by virtue of parental authority, of an heir to a minor who is in the power of the testator, in case he dies before reaching testamentary age. 3. Similar to parental (s. quasi pupillaris): the right of ascending relatives (according to the law of Justinian) to appoint a substitute heir for their descendant, deprived of reason, if he dies without regaining his reason. 4. Fideicommissaria (s. fideicommissaria): an instruction to the closest or legal heir to preserve the inheritance and transfer it or leave it to another person upon death. This person may be chosen in advance and named in the will, or it may be granted to choose him from among the members of the whole family (fid. familiae relictum). Thus, two persons are represented as participants in the fideicommissum: one is the so-called successor in faith (fiduciarius greve de substitution), the one to whom the hereditary estate is entrusted; the other is the chosen heir of the fideicommissarius. This form of wills was formed in Rome under a strict law that did not allow direct transfer of inheritance by will between certain persons. To circumvent this law, another testator, who wanted to transfer an estate to a person with whom he did not have a testamentifactio, entrusted the estate to another person to whom he could rightfully bequeath, so that he would transfer it later according to the thoughts and intentions of the testator. Such a commission could at first be based solely on trust, for only since the time of Augustus were such commissions given binding force. The fideicommiss passed as an inheritance: but at the same time, the testator was given complete freedom to limit the coming of such an inheritance by virtue of the arrival of the due date (which was impossible in an ordinary will). In addition, the fideicommissum could extend not to the entire inheritance, but to some part of it, or a special estate, and in addition to the fideicommissum, it was possible to assign other estates to the direct heirs under the same will. The fideicommissary heir, like a direct heir, also assumes responsibility for the debts of the deceased, but only in accordance with the received share of the entire estate. All these four types of Roman substitution are accepted in Prussian legislation; the Austrian did not accept parental and similar parental substitution on the grounds that both were closely related to the Roman idea of ​​\u200b\u200bparental authority. In France, fideicommissary substitution has long been used, but was recognized as harmful, as an institution contrary to the principle of civil equality, good morals, the general law of inheritance and the interests of state and private economy. Therefore, this institution was abolished in 1792, and now the rule remains in French legislation (Articles 796–798): substitutions are prohibited. An exception is allowed for majorates and for two other special cases (Articles 1048–1051). However, French practice recognizes as prohibited only such substitution in which a subsequent heir is established in the event of the death of the previous one; but this prohibition does not include, for example, such orders that would entrust a third party with the transfer of the estate to his heir upon the death of the testator, at least after the expiration of a designated period or upon the occurrence of a specified event. This prohibition does not apply to cases of so-called simple substitution, for which, however, French law did not retain either a special institution or a special name; The French law does not mention other types of substitution. Substitutions (entails) are free in English law and serve (together with the right of inheritance of first-born) a powerful means of holding large estates in one family. In England the practical significance of primordacy is demonstrated in full force. With the help of substitution, all land ownership in England was concentrated in one class, and an aristocracy, strong in its independent position, was formed from large landowners. From this side, substitution became an important political institution in England, inseparable from the whole system of public institutions and the state structure. But, on the other hand, in England, more clearly than anywhere else, the harmful consequences of this institution for the entire economy of social life are revealed: the study of this reverse side of the English majorate should warn any legislator who would like, carried away by the brilliant properties and enormous political significance of the English aristocracy, to transfer to his own soil an institution that has contributed so much to consolidating power in noble families. With the help of substitution, the concentration of landed property in England has reached such a point that the number of landowners, which in 1786 reached 250,000, now barely reaches 30,000, and the acquisition of landed property has become accessible only to enormous capital. By imposing the rule of inalienability of property on a whole series of generations, substitution constrains many persons in their legitimate interests, and sacrifices to one political interest many other state interests, the importance of which is becoming more and more apparent. Thus, for example, the relations of landowners to land tenants or farmers, which represent an insoluble knot of difficulties to society and the government, have become more complicated and confused thanks to the establishment of a substitution, which makes long-term lease transactions impossible and constrains the landowner in economic disposal of the estate - the right of the generations inheriting it. By limiting his right of ownership and freedom of economic disposal, it constrains the good owner in improving the economy, and encourages the careless owner to incur costs beyond his means, while depriving the creditors of the insolvent debtor of the opportunity to receive full satisfaction from the value of the estate. § 54. Executors of a will. – General and individual failures. – Legal measure of refusal. – Entry into force of a separate refusal. – Cancellation of a will. – Opening, announcement and appearance. – Interpretation of a will. - Legal share. - Disinheritance. – Testamentary inheritance in the Baltic provinces. – Muslim testament Executors of the will. And without the appointment of a fideicommissus, it is possible to achieve the same goal in a different form with the appointment of a direct heir. It is possible to assign an estate for lifelong or fixed-term use (usufruct) to one person so that he transfers it or leaves it to another - the direct heir; A similar goal can be achieved by appointing an executor of the last will, and, according to French law, by appointing a so-called legateary à titre universel. This title is free: one cannot be obliged or forced to accept it; but, having accepted it, the executor no longer has the right to leave it and becomes in the responsible position of a person who has undertaken an assignment (mandatum), unless it were impossible to perform. He is obliged to act in good faith, but is not obliged to act at his own expense and at his own expense; on the other hand, it is assumed that he acts free of charge, although it is not usually prohibited for him to receive a refusal to appoint the testator. He is obliged to report to the heirs (according to French law, he is obliged to submit a report after a year from the death of the testator). If there are several executors, then, in French. According to the law, they are jointly and severally liable. But by accepting responsibility, they will also receive the corresponding power to have the right to which the heirs whom he represents by virtue of the will must submit to. As an executor, he also serves as the closest interpreter of the will of the testator and disposes, according to his purpose, of the estate, for its protection, bringing it to notice, clearing debts and for the satisfaction of the heirs and all recipients under the will. According to English law, no one has the right to take possession of an estate under a will until his authority to do so has been certified. Such authority depends either on the will of the testator, who appointed an executor, or on a government agency. The first duty of the executor appointed under a will is to submit it for approval to the chamber of appearances, which, having taken an oath from him, confirms his authority. If the will does not appoint an executor or the appointed one has dropped out, then the same appearance chamber may, at the request of a person interested in the inheritance (such as a close relative, an heir at law, a successor under a will, or even a creditor), having taken an oath from him, confirm him in the title of Administrator with the will annexed. General and individual failures. The French private successor (legataire á titre universel) differs from the general successor by estate (legataire universel) in that with the former there is always still room for a direct heir, and with the latter there may not be a place for him. The private successor receives a quantitative part of the entire estate (for example, half, a third, etc.), or an entire category of property from the entire estate (for example, all immovable, all movable), or a quantitative share of an entire category (for example, half of the immovable, a third of the movable). The general successor of the entire estate enters into it directly, if there are no direct heirs; the private successor must claim his share from the heir or general successor. A separate refusal (legatum, legs particulier, Singularvermächtniss, legatum - from lex, i.e. law, an order given by the testator to the heir - to give to such and such) is an assignment in favor of a person who is not an heir, a separate thing or a separate right to property; both may be available, as part of the hereditary estate, but they may not be. In the latter case, it is assumed that the person obligated by the testator must obtain with his own resources, or deliver from his estate, the specified thing or right. As a result, the subject of refusal, according to Roman law, could also be someone else’s thing belonging to a third party (unless the testator mistakenly accepted it as his own); in this case, it was necessary to purchase this thing and give it, or its price, to the one to whom it was refused. French law (1021), in order to avoid difficulties in interpreting the last will, does not recognize such refusals at all. In addition to available items and property, the refusal may consist of monetary amounts, the right of use, an easement, or the provision of existing claims. In general, according to Roman law, the legatee was assigned the legal right of security on the estate that passed from the testator to the person whose responsibility was to satisfy the refusal; The latest legislation gives the legatee the right to demand security in such cases. Another subject for refusal may be the establishment of new demands in favor of the legatee (for example, the right to maintenance, or alimony, annual distributions, etc.) or the transfer to him of the demands and claims of the testator himself (nomen legatum), releasing him from debt (liberatio legata). In general, by virtue of the refusal in itself, a personal claim arises from the legatee, as a gifted, awarded person (honoratus), to the subject executor, or guilty person (oneratus). One of the most common and complex refusals in Rome was the refusal to assign a dowry (dos legata, legatum dotis constituendae). The refusal must necessarily be someone else's responsibility. The guilty person can be not only the heir under the will, but also anyone in whose favor the testator made an appointment. If the guilty person is not named, then the liability falls proportionately to all heirs. The person guilty of refusal cannot be legally identical with the person awarded, because no one can be his own debtor. Therefore, if a separate legacy is assigned in advance in favor of one of the heirs (this is called praelegatum), he acquires the share of the legacy falling on his inheritance, not as a legatee, but as an heir. Legal measure of refusal. The liability imposed by a will must not exceed the amount of what the guilty person receives under the will: beyond this measure, anyone can evade execution (nemo oneratus, nisi honoratus). This is the general rule. He departs only from the Austrian law, which decrees that not only the heir who accepted the inheritance, but also the legatee who accepted what was assigned to him, are obliged to unconditionally fulfill all the renunciation duties assigned to them (Oest. Ges 650, 801): the renunciation duty is equated in this case with an assignment (mandatum), which, having been accepted, must be executed. But Roman law is not content with the above-mentioned rule of balancing the duty of refusal with the given means for its execution. It also allows the heir to reduce the refusal to such an extent that a fourth of everything assigned to him under the will remains in his favor, up to the legal quarter (quarta falcidia, quarta legis falcidiae portio). The same benefit is granted to the fiduciarius in relation to the fideicommissary to whom he must surrender the estate (in this case the quarter bears, after another law, another name: quarta Trebelliana). The legatee is granted such a benefit only in such a case if he also has to endure, on the same basis, cuts from the next refusal. The provision of such a benefit was consistent with the general idea of ​​​​Roman law to favor the execution of the last will: in this idea, the law tried to ease the position of the heir, so that he, due to disproportionate refusals, would not shy away from accepting the inheritance. (Not earlier than Justinian’s time, the testator was allowed to prohibit his heir from the fourth cut.) Therefore, the latest legislation, deviating from this idea of ​​​​Roman law, did not accept this preferential rule (Preus Ldr. I. 12. § 334, Code Civ. 921, 1009, Oest. gsb. 690). Austrian law, however, allows the heir to demand proportionate remuneration for his work and expenses if his entire inheritance is exhausted by refusals. This benefit in favor of heirs under a will should be distinguished from the benefit in favor of heirs by law, in order to ensure that they receive the full legal share. Entry into force of a separate refusal. The effect of the renunciation begins, according to Roman law, with the death of the testator, unless at that moment the person in whose favor the renunciation is made is alive or in conception. In this case, the refusal is made in the person of the successor and hereditary, i.e. his heirs can enter into his right, even if he has not yet acquired the relinquished property into his power (this was technically called dies legati cedit). However, if the waiver is made subject to a term or condition, it becomes effective only upon the fulfillment of the condition. On the contrary, whoever was not alive or in conception at the moment when the refusal should have come into force, did not enter into the right himself and, therefore, could not transfer it to his successors 82. From this moment of entry into force of the refusal, and the successor to the right, differs, according to Roman law, the minute from which the right becomes open for implementation is connected with the right to sue (this is called: dies legati venit). since the refusal follows the successor not directly, like an inheritance, but through a third party, then in order to exercise the right it is also necessary that this third party be openly liable to the successor. For this, it is required that the subject heir enter into the inheritance or that the day and time specified by the will arrive. Then the transition to actual possession of the object of refusal depends on the personal activity of the person awarded the refusal, depending on the nature of each right (for example, property and jura in re are acquired for the legatee by themselves, ipso jure, the claim denied to him also in itself passes to him). Among the latest legislation, in French and Austrian, the minute of entry into force of the refusal and acquisition is determined in the same way as in Roman law (Oest. gsb. 684; Code Civ. 1014). Prussian law, on the contrary, considers in most cases the right of ownership to be renounced to be acquired at the moment of the death of the testator, although the actual transfer of property can be demanded only after the legal deadline for the heir to review the inheritance before a decisive refusal has passed. According to French law, a simple legatee has the right to the fruits and increments of the renounced property only from the date of the demand (demande en délivrance), and from the date of death of the testator only in two exceptional cases: when this is specifically granted to him by the will and when the subject of the refusal is lifelong maintenance in the form of alimony. According to French law, even the real heir by will (or general heir by estate), if there is still an heir by law after the deceased, to whom nothing is assigned in the will (héritier reservataire), is obliged to present to him a demand for the surrender of the estate (Code Civ. 1004–1006, 1011, 1014–1016). Cancellation of a will. To put a will into effect, it is necessary: ​​that it is not revoked by the testator, that it is opened and announced in the proper manner, that it is understood and interpreted properly. Every testator is free to revoke his will. This is his absolute right. He can revoke a will either silently and indirectly, or by openly expressing his will to revoke it. He can simply destroy the will; may make another will. However, the latter method is not recognized with equal force by all legislation. In Roman law, each person was supposed to have one will (since the appointment of an heir extended to the entire estate), and the previous will was always eliminated by the subsequent one. But where it is possible to draw up several wills, then, according to the meaning of each will, there may be doubt as to the extent and in what way they agree with each other, or contradict one another. Therefore, the French law (1035–1037), as well as the Prussian one, stipulate that the previous will is revoked by the subsequent one only in that in which both do not agree with each other. Prussian law allows a will to be revoked by simply taking it away from the court where it is deposited. According to English law, a will is considered revoked when the testator marries. The positive will to revoke the previous will must be expressed, according to French law, in another, correctly completed will, or in a special notarial deed; according to Austrian law (710), - in a deed written and signed in one’s own hand (a verbal will is revoked in the same form in which it is made); according to Prussian law (1, 12, § 587–592), - certainly in a new testamentary act, with an announcement before the court. Opening and proclamation of the will. According to Roman law, a written will, sealed by witnesses, had to be opened and read aloud (recitatio) in the presence of a judge, at the request of the interested party and upon certification of the death of the testator, in the presence of the same witnesses, when they confirm the authenticity of their seals. The same rite passed into general German law, but its application was not required in all cases. The will was approved by the court. Nowadays, Prussian law requires that a will be opened in public, in court, with proper announcement (apertura, recitatio, publicatio. Ldr. 1, 12, § 208–241). The same is indirectly required by Austrian law (797–799, Ausweisung des Rechtstitels). Under French law, judicial discovery is required for handwritten and secret wills. The will is submitted to the subject court, where it is opened, a protocol is drawn up with a description of its external accessories and it is sent for safekeeping to a notary, along with the protocol. A secret will must also be opened in the presence of a notary who accepted it, and present witnesses who were present at the acceptance. This rite is considered necessary to certify the authenticity of the act and its identity. For public wills (authentique) this rite is not required. If the will is handwritten or secret, then even the general successor of the estate cannot demand possession without a special order from the presiding judge (Code C. 1006–1008). According to English law, every will must be made upon the death of the testator. Until recently, the place of appearance was church courts (372 in total), but already in the current reign, in 1858, a special institution was established for this purpose called the court of Probate, which includes the main office of registration of wills in London, and forty local offices (registries) in different places of the Kingdom. Wills are submitted here by executors or executors for appearance and approval. But no matter which local office the will is presented to, a copy of it must in any case be submitted to the central London archives (in the so-called Doctors Commons, and since 1874 in Somerset-House). The ritual of appearance is twofold: ordinary and formal (in common form and in form or law or solemn form). The usual ritual is that the will, according to the certification of the clerk, sworn to, is approved with the issuance of a copy of the act to the clerk, and the original will is left for storage in the office 83. Such certification is unilateral and therefore does not eliminate the dispute over the will. A will becomes indisputable only upon compliance with a formal ceremony, which can be demanded not only by the executor, but also by any person who has a hereditary interest in the property, for a period of 30 years. This rite requires calling the legal heirs of the testator to present a dispute, if they wish, and the will is approved indisputably only in such a case when no one declares a dispute or the dispute is recognized as unfounded. For the interpretation of wills, many very subtle guiding rules were formed in Roman law and Roman jurisprudence. The main difficulties arise in the case when the testator, having appointed several heirs, did not determine exactly who should receive what part. In any case, as explained above, in Roman law a will certainly extends to the entire hereditary estate: therefore, the material shares of the inheritance, when, according to the meaning of the will, there would be gaps, shortcomings or surpluses in them in comparison with the existing estate, are distributed on an equal basis, to a decrease or increase, between the heirs under the will, and if the co-heir appointed by the will has left by the time the inheritance is opened, his share also goes into increments with others. Distribution becomes more complicated when the will assigns other parts of the inheritance to several persons together (conjuncti, re - on one property, or verbis, in one assignment), and others - separately (disjuncti). In this case, the share of the person leaving each individual group serves primarily to increase the remaining participants in the same group, and if they are not left, then only in this case it goes to the profit of others named in the will (conjunctus praefertur disjuncto). Legal share. A testamentary inheritance is an inheritance by election. Election may fall on a stranger; in this case, their relatives are left without a share, and in other cases, these relatives are so close in blood and debt to the testator that leaving them without a share seems unfair. This is where legal restrictions on the will of the testator arise in case he wants to give everything he has to strangers, leaving his own people without a share at all. These restrictions consist in the fact that the law restricts the testator from disposing of a proportionate share of the property in the event of death, if he leaves behind close relatives to whom this share should be ensured. In Rome, freedom of testamentary disposition was considered the main principle of inheritance law: that is why there the rule about the legal share, formed in a later era, seemed to be an exception to the general order. On the contrary, in German law, according to popular custom, the legal share was from ancient times the main principle of inheritance. Initially, any will seemed to be a violation of the rights of the closest heirs and was justified only by the motivation of a pious thought or zeal for the public good (such were wills for the soul, pro anima, in the church sense; in favor of the city, zu Wegen und Stegen, according to city law), and then it was observed that the disposition did not exceed a certain part of the property. In other laws, in some places, especially in city laws, restrictions on testamentary will were established on the difference between a family estate and an acquired one. The restrictions of testamentary law gradually extended to restrict significant donations between the living, in favor of the legal heirs. And in Rome, at first, a claim was established against an unrelated will (querela inofficiosi testamenti), and then claims were formed against an unrelated donation or assignment of a dowry (querela inof. donationis, dotis). This claim belonged to some of the testator's closest relatives, who had to prove that there was no reason to exclude them from the inheritance: in this case, it was considered possible to admit that the will was drawn up unconsciously, quasi non sanae mentis. At first, the discussion of this subject was left unconditionally to the consideration of the judge, according to the circumstances of the case; Subsequently, this freedom of discussion was limited by regulations 1) on the legal inheritance share; 2) about legitimate reasons for exclusion from inheritance; 3) a ruling that testamentary removal from inheritance is not considered illegal when it was done with good intentions and tended to benefit the person removed (exheredatio bona mente). In Roman law, the legal share was provided not only to ascendants and descendants, but also to siblings. Recent legislation does not accept a legal share for brothers and sisters, no doubt because it does not recognize in this regard a moral obligation strong enough to justify limiting the will of the testator (or donor). There is also no special rule regarding the legal share in favor of the spouses. The legal share of the spouses is determined by their general inheritance law (see the chapter on the inheritance of spouses), and the allocation of an inheritance share to the spouses constitutes, in any case, a liability that falls on the entire inheritance. Only Prussian law defines a special legal share for spouses, which in any case is, regardless of the testamentary disposition, no less than half of what the spouse should receive according to the general law of inheritance (Ldr. II, 1, § 621–627). The size of the legal share. According to Roman law, the legal share (portio legitima, Pflichttheil, resérve héréditaire) for ascending and descending relatives is a certain quantitative part of their full legal share, which would have followed them in the absence of a will (portio portionis ab intestato). Whoever, according to the general law, was entitled to a fourth part of the inheritance, can claim - in a will - a third share of this part; with smaller sizes of the total hereditary part, the obligatory legal share rises to half. Completely bypassed heirs (who have a legal share) may demand the destruction of the entire will; those who are assigned less than what is due can only demand an addition to their share (expletoria actio). Obligations (issues, etc.) assigned to the legal share are considered invalid if not accepted voluntarily by the subject heir. From the latest legislation, Prussian defines the obligatory share: for ascending relatives - half of the legal inheritance share, and for descending relatives - two thirds, if there are more than four of them (for two - one third, for 3 and 4 - half). Ldr. II, 2, § 392, 502. Austrian (765, 766) provides the ascendant with a third, and the descendant half of the legal inheritance. In France, the law determines the part that the testator can dispose of as a gift during his lifetime or in the event of death (quotité disponible); this part is greater or less, depending on how many children, descending or ascending relatives he leaves behind (a quarter, a third, a half): this proportion in most cases is less inferred, according to considerations, to the obligatory legal share of named relatives. This legal share after the owner, who left no descendants, extends for ascendants, if there are any in both lines - in the paternal and in the maternal, to half of the hereditary estate; if it is in only one line - up to a quarter; for one downlink (i.e. for a legitimate son or daughter with offspring) – half; for two descending lines - two thirds; for three or more - three quarters of the entire inheritance (Code Civ. 913, 915). Much simpler and at the same time more extensive is the rule of the Italian code, which determines, from the Roman point of view, the legal share provided to the heirs against testamentary arbitrariness. This share is determined by a certain measure, without considering the number of remaining relatives: the law provides half of the inherited estate to all children and descendants in general, and to those ascending. Ascending it is divided into all lines, but without the right of representation, i.e. the nearest degree in an ascending line certainly excludes a further one. The legal share is also provided to the spouse, but always consists of the right of use, and not the full right of ownership. Italian law grants a legal share not only to legitimate children, but also to illegitimate children (enf. naturels), even in the case of legitimate children, who in this case are granted only the right of redemption. The right to a legal share is exercised by hereditary accounting of everything alienated and distributed. This right to accounting belongs to the heirs who have a legal share: the right to retain for themselves what the deceased testator bequeathed to outsiders in excess of the legal measure of disposal, and to demand back everything donated by the testator during his lifetime in violation of the same measure. The operation of this accounting is very complex. The legal share is taken into account not only from the mass of property that constitutes the available inheritance upon the death of the testator: it is the share of that mass that would have remained available if he had not alienated anything from it by gift. Based on the quantity of this total mass and the number and quality of heirs entitled to the legal share, the part subject to the free disposal of the testator and, accordingly, the legal share are first calculated. If it turns out that the property about which no disposition has been made, in value, exceeds the legal share of the heirs, or is equal to it, all previous and recent dispositions remain in force. If not, then an allocation is made. Refusals are destroyed or curtailed, donations made during life are reversed in full or in part, depending on the extent and from what time the deceased testator began to distribute and alienate his property free of charge in excess of the legal measure, and therefore first the later assignments and distributions are canceled and curtailed, and then, if the measure of the legal share has not yet been filled, the previous gift dispositions are also subject to cancellation and reduction. This is how the legal share is apportioned (reduction), which must be distinguished from the appropriation during hereditary division, which was discussed in more detail above (rapport). In the latter case, each of the co-heirs returns to the estate, for its general accounting, everything that was donated to him by the deceased patrimonial owner and that he owed to the deceased (Code C. 829, 913). All the latest legislation only allows the cancellation of individual orders of the testator and individual parts of the will, if they violate the measure of the legal share; but it is not permissible to overthrow an entire will because of this violation. Is it fair and in accordance with the sound principles of legislative policy to limit the right of the testator to the law on the inheritance share? Lively debates on this issue continue in the literature. In French legislation, there have already been two attempts to abolish the rule on inherited shares. In 1826, the issue was raised in the legislative assembly by the aristocratic party, with the aim of introducing the right of primogeniture into inheritance, ensuring the inheritance share exclusively for the eldest son. Another time the issue was raised in 1865, with the aim of freeing parental authority from constraint and restoring freedom of testamentary law. Around the same time, in 1864, the famous economist Le Play published an essay (Le Play. La réforme sociale en France), which aroused new controversy on this subject. Typically, the defenders of freedom of testament are economists (except for Le Plait, Dunoyer, Passy, ​​Courcelles-Senel, Rocher, Meck-Colloch), and the defenders of the inheritance share are lawyers. A detailed analysis of opinions can be found in Brochet’s essay: Etude sur la légitime. Paris 1868 and in the Revue de législation, 1870. Dufour. De la liberté de tester. Disinheritance. French law does not allow parents to reduce the legal share of their children in their will, even as a punishment to them. Other legislation allows for disinheritance, but not otherwise than for legitimate reasons, the most important of which are: serious crimes, gross ingratitude, depraved behavior. In Roman law, there are 14 such legal reasons for which children and descendants can be disinherited, and 7 regarding ascendants; but these reasons were supposed to be interpreted literally, not allowing analogy or extension. The legality of the reasons for disinheriting the brothers and sisters was submitted to the judge. Prussian law gives up to 10 legal reasons regarding descending and 7 regarding ascending; Austrian – sets 4 common reasons. The extreme variety of reasons given in each legislation is remarkable: it shows how difficult it is to establish general principles on this subject. All legislation agrees on only one feature: this is the denial of benefits to the testator by the heir, in case of need. All other definitions of reasons for disinheritance differ from each other in essence or in particulars. According to Austrian law, the following reasons for disinheritance are recognized: renunciation of Christianity, abandonment of the testator without assistance, sentence to 20 years of hard labor, immoral behavior. English and North American law gives the testator complete freedom. Among the legal reasons for elimination, all of the above-mentioned legislation also allows for an intention tending towards the benefit of the person being eliminated (for example, when the immediate heir is heavily in debt or leads a wasteful life, and the estate is transferred to his children). Testamentary inheritance according to the law of the Baltic provinces. The concept of a will is not the same: in Courland, only the appointment of an heir is recognized as a will, and any other disposition is recognized as a codicil, and in Livonia and Estland, a codicil is only an addition to the will. The form of the will is public or domestic. Public wills may be declared verbally to the court or a judicial delegation, without requiring a signature or witnesses, or, having been written in writing, may be entered into court openly or closed. Household wills are drawn up in writing, with the participation of two (or more) witnesses; Verbal wills are also allowed, with witnesses. Privileges are allowed for military people on a campaign, for the poor, for dangerous times, for parents in favor of children. The privilege is that, regardless of compliance with all formalities, the act is approved if there is no doubt about the authenticity of the will. In general, due to the differences in local rights, the general formalities of wills change significantly (Civil Ost. Law. 1981–1992, 2024–2105, 2443). Real estate inherited by inheritance is not subject to will in Estonia and Livonia, unless the testator is the last in his family or his heirs agree to the disposal. In Courland you cannot bequeath a family estate (1995–1997, 2002–2004). In Courland there is a rule about assigning a compulsory share to indispensable heirs, according to Roman law, and in Livonia and Estland a similar right is assigned only to minor children for upbringing and maintenance (2001, 2005). It is allowed to bequeath (Lifl. and Estl.) 1/10 of the inherited property for charitable purposes, if there is no acquired property (1998). Legal reasons for exclusion from inheritance, as well as for deprivation of refusals, are taken from Roman law (2013, 2847). From Roman law, detailed rules were borrowed on the internal presentation of wills (2106), on refusals, their legal effect, acquisition and various types of refusals, on the falcidian quarter (2150–2316), on conditional and urgent orders (2358–2408), on the determination of inheritance shares under a will (2124–2135), on revocation and invalidity failures and failure increments (2814, 2848, 2901). The law understands substitution only in the simple and childish sense, according to Roman law (S. vulgaris et pupillaris, art. 2136–2149); but there is a special provision, on the same principles, about hereditary fideicommissas (2317–2336) and, especially, about family or eternal fideicommissas (2337). Finally, a special provision established the rules of family fideicommissums on noble estates, which, as a general rule, can be established freely, without the Highest permission, and can be freely canceled as long as no one has acquired the rights to a fideicommissum (2525–2580). Unlike Roman law, following the German principle, the law of the Baltic provinces allows and even patronizes the contractual principle in wills. Therefore, not only are mutual wills allowed (about appointing each other as heir) and corrective (about the indispensable connection of both appointments, Articles 2409–2420), but also direct inheritance contracts, which provide not only a personal obligation, but also the right of inheritance itself. Under this agreement, the patrimonial owner is not deprived of the right to dispose of property during his lifetime and even to make moderate gifts, but in the case of such alienations, in which the intention is clear to deprive the other party of the right, or in case of extravagance, the other party has the right to dispute (2481–2500). Inheritance agreements receive a special type of hereditary union (Erbverbrüderung. Gesammthandstiftung), when they are concluded between noble families and lines, on mutual inheritance, in case of termination of the family or line (2501–2510). The agreement on equalizing the inheritance rights of heterosexual children (Einkindschat) between spouses and children from a previous marriage, who, renouncing the rights to the property of a deceased parent, receive in return the right of inheritance in the estate of the spouses on an equal basis with new children (2512–2524), is also based on the German principle. Every will, upon the death of the testator, must be declared in court, by which it is opened with open doors and read publicly. Then, at the request or at the discretion of the court, a public summons is made to the appearance of everyone who has the rights to dispute, with the appointment of a period after which the will is recognized as having entered into force and subject to execution. The will is executed by the executor, and if there is none, then by the heir or trustee of the estate appointed by the court. The executor, at the will of the testator, can transfer his right; According to the law, his work does not give him the right to remuneration. The rules of Roman law (2441–2475) are repeated on the duties of executors and on the interpretation of wills. Muslim testament. A will, as a dying order, is also used among Muslims. Islamic law gives a will a religious character; but according to this law, the testator can dispose of no more than a third part of the estate as a gift. Deprivation of inheritance rights by will is not allowed. A will can be not only verbal, but also written. In both cases, the presence of at least two true witnesses during the act is essential. Before his death, the testator has the right to cancel and change the will, which comes into force only upon his death. The will is executed by the judge before the division of the estate between the heirs, but not otherwise than upon payment of the debts of the deceased from his estate. Among testamentary dispositions, the so-called vyakf, or dedication of property for public benefit, or in favor of public institutions, to which the estate becomes inalienable property, has especially religious significance. Such a dedication may also be made for the benefit of the testator's children. In addition to the vyakf, there is also a special type of deed of gift (hubus), by which the owner, by alienating the right of ownership, can grant his family the right to use the property. To assign and accept property alienated in these ways, special rituals are required in court. Waqf ownership is very common in the East in Muslim countries and is a feature of Muslim law. By virtue of the waqf establishment, the estate is transferred to the mosque into continuous ownership, but the testator or donor himself and his descendants remain in continuous possession and use. The donor is called the founder of the waqf and the vyakif. The purpose of such an order is practical: the property is given the property of inalienable (like the European fideicommissa), and the owner is exempt from paying taxes on the estate, since it is considered the property of the mosque. For the mosque, this right of bare ownership is combined with disposal and use, i.e. becomes a full right only in the case when the estate becomes escheated; but in this case there is a workaround, because in some countries (as, for example, in Turkey) custom allows the last in a family to sell its right of use to a third party, and then in the family of this latter the waqf right continues uninterrupted. In Persia, under Shiite law, another form of waqf was formed, called khubus, or hibs, in which the mosque is granted, on the contrary, the right to use property, and the founder and offspring retain the right of bare ownership. This right acquires particular importance where a waqf is established in favor of a charitable institution or in favor of the tomb of a saint, for the position of primate, or custodian, in such institutions usually belongs to one family, the members of which from generation to generation transfer ownership and use to each other. Waqf law serves to considerable detriment for state power (since a huge mass of property is seized from the tax burden) and for social economy due to the fact that property becomes inalienable, and their economic development continues from generation to generation in a primitive manner, without improvement, and therefore productivity does not increase at all. As a result of this, Muslim governments, as soon as they come to the consciousness of the principles of statehood, strive little by little to limit and then gradually destroy waqf law. In Algeria, the French government had long ago turned waqfs into the treasury, and in Turkey, where there are especially many waqf properties, the Sultan's government issued a decree in 1874 on the secularization of waqf properties. Chapter two. Drawing up and appearance of wills according to Russian law § 55. The origin of the will and its history in Russian legislation. – The concept of a will. – Aggregate wills. – Double form of wills In Russia, a will arose from moral and spiritual relations, and not from legal relations: this explains the uncertainty of the legal idea of ​​a will, which is still felt in law and practice. The first idea of ​​a will came to us together with Christianity and the church. It arose from the concern of the dying person about his soul, about the end to earthly affairs and about the organization of earthly relationships. That is why we see in ourselves not a testament in its Roman legal meaning, but a spiritual memory, constituting a testament of the dying to those who remain alive (and to this day the word “spiritual” is used indifferently with the word “testament” in everyday life). The dying man announces how to bury him and how to remember him; to whom does he owe what, who owes him what; what and to whom he leaves, how and what he arranges in his house, etc. Caring for the soul, he usually rushes to secure benefits from his property, sets slaves free, etc. To fulfill the covenant, he chooses an executor - to whom he orders his soul and the last expression of his will. It is assumed that the last testament of the dying person will be respected and sacredly fulfilled by the living, who will die in their turn; sometimes, to strengthen the will, the dying person threatens the living with responsibility before the court of God for failure to fulfill the covenant. To bless, strengthen and announce the covenant, the spiritual father (spiritual father, spiritual father; sometimes there were several of them in spiritual memory), witnesses from close people (in the words of the acts, “such and such were sitting in their heads”) are invited to him. At first, the feeling of respect for the covenant is still so strong that there is no room for concern about its legal protection, and the idea of ​​transfer and protection of property rights barely appears in the idea of ​​the covenant. A verbal will in this sense is identical with a written one; but the written form of the will is itself, as a means of establishing memory. It is not surprising that in this sense, a will, as a spiritual matter, became primarily subject to the authority of the church, and not the state, and that in the field of church law the first rules regarding the form of wills appeared, as soon as the need was discovered to confirm the authenticity of the last will and protect its legal integrity. But these rules concerned almost exclusively the form and external rituals of the will. Under the dominance of the above view on the meaning of spiritual memory, there could be no question of who has the right and who does not have the right to make a will or accept under a will; There was no need for the legal construction of testamentary law. It was created little by little, so to speak, from the outside, by those decrees of state power that limited the disposal of certain categories of property for state purposes. The most important restriction, especially related to wills, was the prohibition against depriving churches and monasteries of real estate (this prohibition lasted until 1810). An essential ritual that the church authorities introduced for wills was the presentation of wills upon the death of the testator, or during his lifetime, to the bishop; at the same time, an interrogation was carried out to the spiritual father and witnesses, and the will, with an inscription about appearance, was issued back upon collection of duties to the bishop's treasury. If there was a dispute, then it was immediately resolved by investigation. This rite of appearance served as the basis for the rite of appearance that still exists in our country for spiritual testaments. With Peter the Great, a new period of testamentary law begins: it had to change its form and for the sole reason that cases of wills were removed from the church department and placed under the jurisdiction of secular authorities; but this change in itself could not add legal certainty to the idea of ​​wills, because the spiritual authority in its definitions had a ready, albeit incomplete, guide - the Helmsman’s Book, with the laws of Greco-Roman law, and the civil courts were deprived of this guide. Therefore, our testamentary law was determined as a result of the reform only from the external, ritual side. As is known, a new procedure was established for the execution of deeds on property, which was intended to ensure, on the one hand, the correctness of the deed itself, and on the other, the correctness of the collection of established deed duties in favor of the treasury. The serfdom at the beginning of the 18th century was common to all acts; The making of wills was also subject to the same procedure. The will was a fortress that had to be written by the serfs on a general basis, and recorded in a book “for dispute and knowledge and information and for the collection of the great sovereign’s treasury” (Uk. 1701, Jan. 30, 1705, Nov. 6). By the very essence of such an action, it cannot be called an appearance: it was the drawing up and execution of an act. The collection to the sovereign's treasury consisted of the prescribed collection for the letter (from the note) of the fortress: duties had not yet been collected from the act. The execution of a will, as a fortress, should have been followed by its appearance on a general basis in the order, with the difference that other fortresses appeared in orders according to the nature of the estate and transaction, and a special place was assigned for the appearance of wills (Uk. 1701, November 7, 1704, February 25), where they were supposed to be brought no later than two months from writing them to the serfs. It was an appearance for possession and at the same time for the collection of duties in the order where the wills were again recorded in the book. For this purpose, when the fortress itself was completed, the overseer had to sign on it that it should be shown and the duties should be entered into the order, where, according to the decrees, it should be, on the indicated dates, but if it were not recorded on the indicated dates, it would not be included in the fortress. Thus, both the execution of the will had to take place, and its appearance according to the natural order, took place during the life of the testator himself. When, in 1726, it was allowed to write wills at home, their public execution by serfs was to be replaced by home drafting; but the appearance of such an act remained as before a necessary condition for its validity. Meanwhile, during the 18th century, all government and judicial places received a new organization, and the order of their activities was transformed according to new principles. With the destruction of the Judgment Order, its place was taken by the Justic Collegium, which in turn was replaced by the Civil Chambers. With the publication of the Institution on the Provinces, the previous procedure for the presentation, announcement and execution of acts on the transfer of estates changed significantly; but no new rules were established for the appearance of wills. Little by little, the procedure for the appearance of wills in judicial practice deviated from its previous form: the concept was formed that a will, as an act drawn up in the event of death, can be declared only after the death of the testator and that the period for this should be calculated only from his death (Uk. 1791, October 16, 1813, September 3). This concept was adopted by law in 1829 when a new one-year deadline was established for the appearance of household wills - a form that at that time, of course, even more than now, was preferred by all testators, because, according to the meaning of the laws in force at that time, wills for serfs could only be made in serfdom on the previous basis. The regulations of 1831 established for the first time the current procedure for witnessing wills of serfs during the life of the testator, and this action was given the name of appearance - in the sense of judicial corroboration - a public action in which the testator declares his will before the court, and the court certifies it with his consciousness. On the other hand, a will in its other form appears to be a domestic act, and here the appearance retains the same character of a judicial certification of the will of the testator, expressed by him during his lifetime and presented to the court after his death, in an act that had not yet been publicly discovered. On the internal side, the restrictions on the testator’s administrative will that appeared since the time of Peter I stemmed, for the most part, from general restrictions on patrimonial or inheritance rights to certain property. The first and most important of the restrictions, but short-lived (from 1714 to 1730) was in connection with the law on single inheritance; From the remnants of this law, the right of a childless owner to bequeath the family estate to a distant relative was subsequently derived (1791–1804). Another restriction, which existed back in the 17th century and was restored with the abolition of the decree on single inheritance, related to the disposal of hereditary estates and was finally determined in the 18th century, with the establishment of a general difference between acquired and ancestral property. This limitation remains the main one in our testamentary law to this day. All previous decrees on spiritual wills before 1831 dealt only with individual issues, as they were aroused by judicial practice, mostly from the external ritual side of the will. The general regulation on spiritual wills was published only in 1831, but even it was only a set and agreement of the decrees published before. Legislation has not yet set itself the goal of recognizing and understanding the legal idea of ​​a will and testamentary succession or acquisition and linking this institution organically with other institutions of civil law. In the system of Volume 10 of the Code of Civil Laws, a will is placed in the category of methods of gift, or gratuitous acquisition of rights to property, therefore, it is connected in the system with other methods only by external communication. The whole institution of the spiritual will appears in our legislation as an incomplete and undeveloped institution, on the one hand, adjacent to acts of acquisition, on the other hand, to inheritance, for the law itself is aware of a certain kind of analogy between one and the other institution, without, however, clarifying it at all. After 1831 the further progress of our legislation on this subject was confined almost exclusively to the external aspect of the institution. The most important of the decrees that had in mind the essence of testamentary law was the well-known opinion of the State Council for the village of Lopukhina. This poverty of the organic principles of the institution was the reason that judicial practice could little contribute to the development of legislation on wills, for judicial practice promotes organic growth only where it finds solid organic principles ready for development. Otherwise, the practice itself is forced to search in the dark for rules and guidelines for its leadership. This is what actually happened. There are so many perplexities and questions that there is an urgent need to review and update the statute on wills in our legislation. This work has been started 84, but in any case one can hardly expect a complete and satisfactory law on wills until we have formed a complete and satisfactory system of all institutions of civil law, in which wills could take an appropriate and consistent place with the whole system. In Russian law there is no rule regarding the specified portion of the immediate heirs, which is not subject to a will. Many reproach our legislation for the absence of such a rule on specified parts (portion légitime) and suggest it is necessary to establish it. I think that such a transformation of the law and restriction of the will of the testator would hardly be appropriate in the current state of our economic life. If discussed in substance, i.e. abstractly, the question of limiting testamentary law in the interests of the closest heirs, and in this case it is still possible to be perplexed and argue about the fairness and moral significance of such a limitation. But it is extremely dangerous to resolve, on the basis of the abstract principles of justice alone, practical issues of legislation, regardless of the circumstances of the place and time, in the midst of which the law must be executed. The implementation of requirements that better satisfy the abstract principle of truth may be associated with such difficulties in reality, may end up in such a contradiction with the conditions of life, that it may turn out to be not only more convenient, but, depending on the circumstances, fairer to leave the old rule for the time being rather than introduce a new one. Particular caution is required from the legislator in cases where a new law should arouse new interests of private law or develop and complicate the interests of previous law. If the implementation of these interests is not really consistent with the material conditions of life, it is better not to arouse them at all. It is true that testamentary law requires certain restrictions to restrain the will from actions that do not agree with the general assumption of reason about family and hereditary relations. We also have such a restriction: it consists in the prohibition of bequeathing family or hereditary estates to strangers. It is proposed, having abolished it altogether, to replace it with another restriction relating to every estate in general, and to determine the property of the restriction not by the internal quality of each individual estate, but by the quantity or value of all estates taken together. Fair and desirable - there is no doubt about that - but whether it is possible and useful, one can doubt this. The restriction on the property of the estate is imperfect, because it does not fully correspond to the uniform protection of interested persons, because it is associated with a real, therefore, with a random feature. If all the testator's estates are family estates, the interests of his heirs are sufficiently protected; if everyone is well-acquired, then they are not protected at all. However, it should be noted that our law was intended to ensure not so much the personal interests of children and other heirs, but rather the interests of the family and clan, i.e. retention of hereditary property in the family. So, it is necessary to change the fundamental principle of this law, its motivating goal, putting forward instead of it another goal - the protection of personal hereditary interests, and to protect them according to the calculation of quantity. But in the current state of our economic life, accounting for quantities in assets that do not constitute money capital is associated with difficulties for us, reaching the point of impossibility in many cases. So, the consequence of the new law would be the arousal of interests, the implementation of which in the process is associated with innumerable difficulties, due to the scarcity, unknown or complete absence of correct and accurate data for accounting. It is clear what kind of cases would arise from this, complex, unreliable for the petitioners, and associated with a huge complication of proceedings for the courts, and with limitless costs for individuals. These difficulties are very important from the point of view of legislative policy, and are worth thinking about. Therefore, for the time being, changing our law in the above sense would be possible, in our opinion, only in relation to monetary capital and values, in which accounting does not present difficulties. According to our law, a spiritual will is a legal declaration of the will of the owner regarding his property in the event of his death (1010). The distinctive feature of this act is indicated in the last words of the definition. The purpose of a will is a disposition in the event of death; therefore, it is subject to execution only upon the death of the testator. In this way, a will differs from other deeds of gift, which, in essence, are aimed at executing the will immediately or during the lifetime of the donor. Therefore, it was decided that acts called deeds of gift, the execution of which is supposed to be done after the death of the donor, are considered wills, and, conversely, wills, the execution of which is supposed to be executed during life, are to be recognized as deeds of gift (991). This rule was established to prevent attempts in use to weaken the irrevocable power of a gift under the name of a will (it happened that the donor, having given away property during his lifetime under an act called a will, wanted to retain the testamentary right to cancel and return his previous orders). Testamentary law expires from a person’s patrimonial power over his property, ending this power completely. What a person did not decisively dispose of during his life, he disposes of in the event of death: he gives from his own after himself whatever he wants and to whomever he wants freely, i.e. keeping his will to himself while he is alive, and not connecting it with anyone else’s will. According to the spirit of our law, the contractual, binding principle is contrary to the essence of a will, which presupposes unity of will, and therefore everyone is free to revoke his will or determine his will in a different way. This freedom can only belong to a single will, and therefore our law does not allow joint wills, in which two (or more) persons express their will jointly (1032) 85 . This prohibition is unconditional, and therefore the joint will is invalid, even if the orders of the two participating persons were not mutual, corresponding to one another, but completely separate from one another (Cass. decision 1873, No. 1372). Of course, this prohibition does not prevent each of the two persons from expressing the same will in a separate will, even if each of both orders is in accordance with the other; the law will not be violated, because each will retains unity, and each of the wills has its own separate destiny (for example, spouses cannot bequeath property to each other in one act, but each of them can bequeath to the other - separately). If the immediate heir of the testator, by an inscription on the will when it was drawn up, expresses his consent to a disposition contrary to his inheritance right and refuses to challenge it, should such consent and renunciation be recognized as mandatory for the heir even after the death of the testator? It should not, because a will is not a contract, and the expression of a joint will is contrary to the essence of a will and the unlimited right to revoke a will. There are no two parties here, one of which gives in and refuses, and the other accepts the deal. One can renounce a right that is truly owned; but in the present case there is no such right, because the heir, during the life of the testator, does not have the slightest right either to his opinion or to the right to claim the inheritance. Consequently, any refusal by an heir during the life of the testator of the right to claim the inheritance is an empty word, unless the heir confirms it after the death of the testator, when the right to claim has already arisen and when there is another party in mind in whose favor the assignment can be made (cf. decision of Moscow. General Meeting of 1854 in the case of Aigustov and Malevinskaya). In the article of the law, a will is called a declaration of the owner’s will regarding his property. It should not be concluded from this, however, that only dispositions relating to tangible property can have the legal force of a will. There is no doubt that the testator has every right to make a disposition not only about the property that he possesses during his lifetime and which after his death will remain in the form of material value, but also any of his will, as long as it is not in essence contrary to the law and rights that exist independently of this will, must have binding force. The law in another article directly indicates the right of the testator to appoint a guardian for his children. But even without a direct indication in the law, if, for example, the testator decided to bury his body in a specified place that is not prohibited for burial by law, his relatives would have the right, on the basis of such a will, to oppose the burial, which does not agree with the will of the testator. It seems that such a right cannot be denied, although its implementation is difficult, since the burial usually takes place soon after death, when the will cannot yet be produced and acquire executive force with appearance. The law pays special attention to all deeds of gift, surrounding them with precautions and rituals for full awareness and certification of the alienating will. But the most important of the deeds of gift is a will, for it allows for the unlimited possibility of defining and redefining the will until the last minute, and at the last minute the consciousness is confused and the independence of the will is weakened. Therefore, the will is accompanied by particularly strict forms that must be strictly observed. First of all, our will must certainly be written; The law does not allow verbal wills (or so-called oral memories, which were previously customary) (1023 - this is an unconditional rule). Therefore, the last will, expressed in words, cannot be proven through witnesses (409 art. Ust. Gr. Court) 86. Moreover, any written will receives legal force only upon certification of the authenticity of the act by the relevant institution, or upon the death of the testator, or during his lifetime. This is our significant difference in the general form of wills. Some wills receive special strength and strength from the fact that during the life of the testator they are presented by him to the proper place for appearance and certification or for execution; others can be drawn up at home and remain silent until the death of the testator. The first are called serfs, or notarial, which are performed instead of serfs where the Notarial Regulations are put into effect, the latter are household (1012–1014). Without a doubt, the former are stronger than the latter: when a will is presented to consciousness personally by the testator himself or made by those subject to establishment, its authenticity is, of course, more reliable than the authenticity of the act, which is announced for the first time when the testator is no longer alive: in the first case, the authenticity of the will declared by a living person seems obvious; in the latter case, the authenticity of the will of a deceased person must be concluded based on signs and assumptions. Consequently, in the first case, it is incomparably more difficult to arouse doubt or suspicion about the authenticity of the will, because then one would have to extend doubt not only to this will alone, but also to the consciousness of all those who participated in its acceptance for official approval (see 543, 547 et seq. of the Constitution of the Civil Court). In this sense, it was decided (Zak. Gr. 1013, approx., adj., art. 7; 10351) that no objections (i.e., doubts) are accepted regarding the authenticity of serfdom or notarial wills. Therefore, for some particularly important testamentary dispositions that require special deliberation, the use of a serf, or notarial, form of a will is required (for example, 1068 and 1070 of the Law. Gr.). State The Council refused to approve testamentary acts submitted for the Highest approval, which were supposed to establish fideicommissia. This was the will of Michelson (1804), Tutolmin (1810), and Count Gudovich (1811). The basis for this was that it would be inconvenient for the Highest Authority to enter into the disposal of family affairs or to make exceptions from general rules for private benefit. § 56. Form for drawing up household wills. – Writing, signature, copyist, hand-applyer and witnesses. – Who cannot be a witness in a will? – Testimony of a spiritual father. – Signature of witnesses and meaning of the certificate A household will can be written on plain paper, writing or postal, of any format and size, as long as it is a whole sheet of 2 halves, and not a piece of paper, a scrap or a fragment (an exception is allowed only for Muslims in the Transcaucasian region, Art. 1045 and approx.). It must be written clearly without any typos, erasures, amendments or additions between the lines: if there are any, they must be specified in the signature of the testator or hand-applyer. Failure to comply with this formality may weaken the content of the will in the relevant instructions, but does not weaken the authenticity of the entire act. A will with such defects can be accepted for appearance, but the certificate itself indicates which clerical errors and amendments are not specified in the signature; those of them that are made by the hand of the testator are considered valid, and those that are made by an outside hand without reservation are not valid (1034 art.; see art. 708, appendix I, art. 26 and 61). It seems to follow from this that amendments made by the hand of the applicator, but not specified in the signature, are also invalid. Our law does not specifically mention (except for the general rule for serfdom in Article 708, Appendix I, Article 62) about the need to indicate on the testamentary document the year, month and date of writing, and therefore there is no reason to refuse the appearance of a will without the date written. But the absence of a number may turn out to be a significant drawback when, due to the circumstances of the case, it is necessary to determine the authenticity of the will by the number of writing, or its strength and significance in comparison with another will, after the same person appeared, or the inability of witnesses due to personal relations with the testator that arose before or after the drawing up of the act. In such cases, however, the law does not forbid, in the absence of numbers, determining the time of writing the will and other signs, if any. It is necessary to set a number because in many cases determining the number when a will is written is important for establishing its strength and validity. The authenticity of the number on the will may be questioned; but if it had been proven that the number was not genuine, and the authenticity of the text and signature had not been questioned, then this one circumstance in itself could not serve as a sufficient basis to refute the authenticity of the entire will: for example, let us assume that the will of 1840 would have been written on stamped paper with the stamp of 1842. The authenticity of the will would not have been affected by this, but the number would not have been reliable; Consequently, the rights based on the will, since they are related to the time of its preparation, would lose their force if, however, it were not possible to determine with certainty the time of the will’s preparation by its internal content. Also, if after the death of the testator several wills turned out to be contradictory and it would be necessary to determine which should be considered revoked, the unreliability in the number could serve to invalidate the entire will. Such cases occur in judicial practice: for example, in the case of Batashova, Durov and Atreshkov, the State Council in 1858, comparing three contradictory wills according to internal and external characteristics, one of which was without a number, determined which of them should be considered the first and therefore canceled by subsequent wills. There was no special form established for the presentation of a will, and therefore wills were approved that were written in the form of a letter to the person to whom the order relates (Collected Sen. Resolution Vol. I, No. 599). In the Krivoshein case, the Senate recognized (ibid., No. 213) that leaving blanks in the will to indicate the quarter and N of the house, as long as these blanks do not change or obscure the essence of the will, does not prevent its approval. A will can be written by another, at the request and on the words of the testator (1046). This does not mean that the will must be dictated word by word, and it would be unreasonable to allow a dispute that the will of the testator is not accurately expressed when the will as written is signed by the testator and all other formalities required by law to certify the act are observed (cf. Cass. decisions 1875, no. 322; 1876, no. 482). A will can be written in one's own hand 87 and then signed by the testator himself, or rewritten by another and signed by the testator himself, or, being written on behalf of an illiterate or sick person, it can be rewritten and signed for him by someone else's hand. It is obvious that in each of these cases the signs of authenticity are not the same, and therefore the law multiplies the formalities where there is no handwritten correspondence, and even more so where there is no handwritten signature of the testator. This aggravation of formalities relates to the identity of the scribe, to the identity of the hand-applyer, to the number of witnesses and to the formalities of signing. The identity of the census taker must not remain unknown. Not only is the scribe's designation required, but also his signature on the will itself. Without the scribe's signature, the will is not accepted for appearance, unless the scribe had appeared in court within the one-year period for appearance and confirmed in writing that the will was exactly written by him 88; but in this case, to confirm this testimony, a comparison of hands is made; therefore, the subsequent announcement and statement of the scribe, even if on time, is sufficient not in itself, but upon certification, in connection with the circumstances of the case (Articles 1048, 1049). In addition, the scribe is required to have unity of title: whoever was the scribe of a will must no longer assume another title in the same will - neither executor nor witness (Article 1048). The same exclusivity of rank is required from the assault officer. The signature of the hand-signer instead of the testator must be at the request of the testator, and it must indicate for what reason the authorized person is called to sign: whether due to the inability of the testator himself or due to illness; if these circumstances are not specified, then the will is declared invalid (Cass. decision 1874, No. 532). In addition, the executor must have all the qualities required for a witness in a will (Article 1053). Thus, the executor appears in the will as a special, in this case simplified and authorized person (attorney, mandataire). A will not written in the testator’s hand requires a larger number of witnesses, compared to a will written in his own hand (one more witness, Art. 1048, 1051). The formalities of signatures are somewhat complicated by the fact that they must indicate in detail the title of the testator 89 . This rule, however, is not expressed entirely clearly; it apparently refers to the scribe's signature and to the signatures of witnesses. From 1051 st. we can conclude that this rule also applies to handwritten wills, but its observance, in practice, is not required unconditionally, i.e. Such wills are also accepted for appearance in which the signature of the scribe and witnesses does not contain a detailed designation of the title of the testator, already indicated in his signature. Finally, a will that is not written in the testator’s hand must be stapled across sheets. An essential part of a will is a signature. Signatures cannot be replaced by any other sign, and an illiterate person must entrust the signature to another (Collected Sen. Resolution II, No. 924). The signature must contain the first name, patronymic and last name or nickname. Failure to comply with the rule on the first name and patronymic (for example, non-signification of the patronymic, incomplete designation or non-signification of the name) does not prevent the will from being accepted for appearance if there is no doubt about the identity of the testator (1046, 1047, General Collection. September 1869 in the Yagnitsky case). However, this benefit, neither according to the literal meaning of the article, nor according to the essence of the form, cannot, it seems, be extended to the case when the testator’s surname is not indicated in his signature or there is his name, but there is no patronymic or nickname, which among ordinary people replaces the family surname. The difference between an estate and a surname or nickname is significant - in meaning and in use according to custom. The designation of a surname or nickname completes the designation of personality traits and signature; therefore, if a surname is displayed, it can be assumed that the name was not added due to oversight, oblivion or custom. And where there is a name, but no surname or nickname, it should rather be assumed that the signature is not completed, therefore, the final act of will is not sealed and certified. In Bedrzhinsky's will, the signature was made illegible, without the full name and patronymic, and was written in double form, with a separate word added to the first signature: View: The disputants concluded from this that the testator was mentally impaired, but the Senate rejected this dispute, seeing that all legal formalities were observed, and witnesses confirmed the authenticity; although one of them in the signature itself mentioned the weakness of the testator’s physical strength, this circumstance also indicates the reason for the illegibility and ambiguity of assault (Sborn. Sen. decision vol. II, No. 1031). There are decisions of the Senate (Collected Sen. Resolution Vol. II, No. 366), which approved wills with the signature of the testator without indicating the name and patronymic. On the will, at the very opening of it, the signatures of the testator and witnesses were crossed out in ink, and it was not proven that this was done by anyone other than the testator himself: in this case, the Senate in one case declared the will not subject to appearance. Journal Min. Just. 1860, N 10. In 1873, the State Council recognized Feodoseva’s will as not subject to certification, since her signature, although her first and patronymic names were indicated, did not indicate her last name. Although the will is sealed according to the sheets by the testator herself, and her name in the bond is on the very sheet where her unfinished signature is, the bond and the signature are two actions that are different from one another; the signature can be recognized as valid (and the act is finally completed) only when it is completed in full. In addition to the signature, the testator must seal the will on sheets, if it is written on several separate sheets and not in his hand. In such cases, to prevent substitution and forgery, the law requires that the sheets be stapled, and, moreover, so that each sheet contains at least a whole word. Instead of the testator, such a fastener can be made by an executor, or all the witnesses who have signed the will can do it, with special authority, which must be expressed in the will itself, with an explanation of the reason (1035). Such a statement must be made, of course, regarding the drawing up of the will itself, during the life of the testator. A bond made upon the death of the testator has no force before the law. A will means a complete act with all legal accessories; therefore, the composition of a will, as a genuine expression of the will, includes not only its text, but also all the signatures of the testator and witnesses, which serve as legal certification of the will. On this basis, it is required that a will, in which the text is written on one sheet, and the signatures of witnesses or only a continuation of the signatures are placed on another, must certainly be sealed along the sheets in the prescribed manner. These principles are expressed in the Highest approved opinions of the State Council on February 22, 1872 on the village of Gushchina, published for general information (see P.S.Z. N 50568). For the seal of a will completed on one sheet with the signature of witnesses transferred to another sheet, see the decisions in Journal. Min. Just. 1866, vol. IV, p. 295. Collection. Sep. decide vol. II, N 1117. N 375. More Journal. Min. Just. 1860, N 10. There are opinions of the State Council on the Prince's Affairs. Golitsyna (1845), Korovkevich-Bazilevich (1848), Zykova (1850), who recognized it as possible to accept for appearance a will that is not sealed in sheets, when there is no doubt about the authenticity of the will. Every will must have the signatures of witnesses, of whom no less than the number specified by law is required. For a will written in one's own hand, at least two witnesses are required; for a will rewritten by someone else’s hand – at least three; However, two are allowed if one of them is the spiritual father of the testator (1051, 1048). The title of witness (as well as the title of scribe and executor) should not be combined in one person with other titles under the same will, i.e. the witness cannot at the same time be either a copyist or an executor for the testator (Article 1048). Violation of this rule cannot in itself destroy the validity of the will. The will loses the force of authenticity only in this case if, due to violation of this rule, there is an insufficient number of individuals whose participation ensures the authenticity of the act by law, for example, if the will is signed by the scribe and a witness among three, but he cannot be accepted as a witness, then the remaining witnesses turn out to be an insufficient number of two; of course, if there are more witnesses in the will than were required by law, then the lack of one is supplemented by others. The law does not indicate that for mixing several titles in one person, he must deny any of the titles he has assumed, and practice thoroughly deduces from the letter of the law such a rule that a person who has combined several titles can remain in the one that he assumed first of all others; therefore, if the scribe (the earliest action of drawing up an act) also turned out to be a scribe, he remains a scribe, but cannot be a scribe; therefore, there is no assaulter in the will. If the attacker signs as a witness, he remains the attacker, but is excluded from the count of witnesses. The witness must sign the will, and according to the nature of the action (see Art. 1050), his signature must follow the signature of the testator. But the question is, if a witness cannot or does not know how to write, is another person allowed to take the stand instead of him? Many answer negatively, believing that an illiterate cannot be admitted as a witness, because on the basis of Art. 1050. he should have testified that the person who presented him with the will is the same one who made and signed it. There are also solutions in this sense (for example, Sborn. Sen. decision vol. II, N 1002). Regarding the signature for illiterate witnesses, the Senate, in the Kutakh case, reasoned as follows: it is enough to lay hands on an illiterate testator, but in relation to witnesses there is no such rule in the law, and a similar rule is Art. 397. Part 2 of X t. (224 Art. Law. Court. Civil., ed. 1892) on signing testimony for an illiterate witness cannot be applied to wills, because there the evidence is the testimony itself, but here, in addition to the testimony, the signature of a witness on the will is required, and this requirement already denies the possibility of signing for illiterate people; moreover, during interrogation, according to Art. 1050. Zach. A citizen, an illiterate witness could not certify who signed the act (Collected Sen. Resolution Vol. II, No. 1002). There's even a Cass solution. Dep. 1872, N 285; but one cannot, in the strict sense of the law, agree with the conclusions of this decision. Art. 1048 speaks of the executor as a witness and makes this title so important that it is not allowed to mix it in one person with other titles of persons participating in the drawing up of a will. It is true that, besides illiteracy, there may be other reasons that prompt a witness to look for a man to beat him; however, the law (passed in 1860) provides for assault as a witness without restrictions. Therefore, there seems to be no legal basis for excluding an illiterate person from witnessing a will. It is hardly fair to assume that such a person cannot testify within the meaning of Art. 1050. If the testator, having personally presented him with the will and invited him to be a witness, signed the will in front of him, he can testify to this, although he is illiterate, in the sense of Art. 1050. On the admission of illiterate witnesses, see Collection. Sep. decide vol. II, N 720, 756. Who cannot be a witness in a will? Firstly, the persons in whose favor the will was drawn up. The words “for whose benefit” are usually interpreted in a broad sense, and therefore anyone to whom something of value is refused by a will, or any gift is made, is considered incapable of testifying as an interested party in the affirmation of the testamentary will. Doubts often arise as to whether a priest or other member of the clergy can be a witness in a will that assigns in favor of the clergy a lump sum or an annual income for commemoration. Some reject such witnesses unconditionally, others distinguish: is the appointment made in favor of the clergy, whose composition is changing, or in favor of the clergyman or clergyman personally? There are Senate decisions in both senses 90. But it seems fair to admit that such a witness is in any case interested in the will, therefore, both in spirit and in the letter of the law, he cannot be a witness. Another question arises: can the head or member of an institution (charitable, state, public or private) in whose favor an appointment is made in a will be a witness? The law does not give direct permission to this question, but there is no doubt that such a person, if not personally and materially, then morally, is assumed to be interested in the appointment, and therefore, it seems, it would be in accordance with the spirit and purpose of the law to exclude it from testimony. The difficulty is that in such cases it is impossible not to make general assumptions about the extent to which this or that official or class person is interested in the benefits of the institution or class (it will be necessary, for example, to distinguish the interest of the director or trustee of a school or hospital - in a testamentary assignment for the benefit of this institution from the participation taken by a member of the zemstvo assembly - in the appointment for the benefit of the zemstvo), and such considerations, in the absence of a positive legal rule, will always be shaky and are associated with personal views (Article 1054, paragraph 1, cf. Art. 708, Appendix I, Article 71 and Notar. Pol. Art. 87, paragraph 3). Can a priest or other clergy person be considered a legal witness in a will when the will assigns to the clergy to which this person belongs a monetary payment for the memory of the testator? 1054 Art. Zach. Citizen It was decided: persons in whose favor the will was drawn up cannot be witnesses to a will. On this basis, some believe that if a will appoints a monetary payment to a church clergy for remembering the soul of the testator, then the priest belonging to that clergy has the right to sign as a witness to the will and that his testimony in this case should be considered valid. This opinion is usually based on the following considerations: a witness is a physical person, a certain one, a designated one. The law, when identifying illegal witnesses, mentions specifically the persons in whose favor the will was drawn up. But when the testator appoints a cash payment “to such and such a church” or “to the clergy of such and such a church” for the remembrance of a soul, then he does not mean the person in whose favor the will was drawn up. The appointment is made here not in favor of a specific person, such and such priest Ivan or Deacon Peter, but for the entire clergy. The composition of the clergy may change due to random reasons, but the testamentary disposition does not change or be destroyed: persons change, but the clergy remains with the church as an unchanged institution. In this case, the clergyman or clergyman who testifies to the will cannot be called either a representative of his own personal benefit, because his personality in the clergy is transitory and accidental, nor a legal representative of the entire clergy to which he belongs. The testamentary assignment of a dacha to a church or to a clergy for the remembrance of a soul has from time immemorial been revered and is still revered in our general opinion as a pious deed, a matter of Christian care for the benefit of the soul of a dying person. This action is not usually associated with the concept of the benefit that may come from it for the clergy performing the commemoration. There is nothing here similar to a legal action, to an agreement under which one party, for a certain fee, would undertake to work in church commemoration of the other, and it is impossible in the strict sense to connect the concept of payment or voluntary remuneration for work with a memorial dacha. The very donation of part of one’s property “per soul” or to feed the church clergy is, in the popular understanding, a matter of piety. The positive law does not attach any other meaning to such an action, and it would be unfair, when interpreting Article 1054, to ignore this main, essential meaning of the funeral dacha and give it the meaning of a legal action - a meaning that it does not have. The law gives special credibility to the testimony of a confessor, and therefore it has become customary to invite a spiritual father to testify wills, and the spiritual father is usually a parish priest. It is also customary for wealthy people to assign sums of money in a will for the eternal remembrance of the soul in the church of the parish to which the testator belonged. If we assume that the testimony of the spiritual father in the above case is invalid, then it will be necessary to destroy most of such wills. It is difficult to agree with this opinion. For our part, we think that, in the literal sense of Art. 1054. Zach. Civil, no person can be a witness if the testamentary disposition tends to his benefit. It is very natural that in assigning a sum of money to commemorate the soul, the main subject is the commemoration itself and the main goal is the benefit of the soul. But there is no doubt that an indispensable consequence of such an order is the benefit of the payment, for the concept of a monetary dacha is necessarily combined with the concept of benefit, of the material benefit of the person to whom that dacha is assigned, no matter what name we call it: whether it is a gift, a voluntary payment, a reward or a donation, in any case there is an acquisition, there is a benefit for the acquirer, there is, therefore, an assumption that the person to whom the dacha is designated by a testamentary disposition and is interested in it, and this very assumption serves as the main reason why the law prohibits the one in whose favor it was drawn up from being a witness in a will. A monetary donation for the remembrance of a soul is truly considered a pious deed; but every pious deed, just like a good deed, if expressed in legal form, must have its own legal side, which touches the area of ​​rights and obligations to positive law. The memorial designation is expressed in the form of a testamentary one, of course, so that the fulfillment of the will of the testator is ensured by all legal means; therefore, this action is legal. The executor or heir is obliged to deposit the sum of money where assigned, in favor of the clergy for the remembrance of the soul. Can it be that where, on the one hand, a legal obligation arises, on the other hand, a right does not arise? Such a relationship in a legal sense is impossible, and indeed no one can take away the clergy’s right to demand execution of the will of the testator through a judicial procedure, if, for example, the executor had not fulfilled it voluntarily. There is no legal reason to deprive the clergy of the right to sue; in this case, the persons belonging to the clergy will, of course, seek in their favor what is assigned in their favor. The witness signing the will is a natural person; but if a will is made in favor of a legal entity - a clergyman, then the clergyman who belongs to the clergyman necessarily participates in this benefit. The persons belonging to the clergy actually change, and it may happen that the clergyman who witnessed the will, when it is executed, will no longer belong to the clergy in whose favor the order was made; but this accidental circumstance has no relation to the form of the act previously committed. The personal quality of any witness may change subsequently, but in relation to the form of the will, what is important is whether the witness at the moment of drawing it up had all the qualities required by law (see decision of the General Meeting of September 1869 on the village of Krugovova, Kuzmina-Koro-vaeva). The law requires that the witness has no interest in the will that is being witnessed; a person belonging to the clergy in whose favor the extradition is appointed has an interest in the will, therefore, he cannot be considered a legal witness. It’s a different matter if the cash payment is assigned in favor of the church; Church property exists separately from the property of the clergy and clergy; and with special rights. The clergyman in this case does not gain anything in his favor, therefore, there is no obstacle for a church minister to sign as a witness to a will made in favor of the church under which he serves, and if he were to later seek and petition for the execution of the will (Vol. IX Art. 379), then he will ask not as a participant in the case, but as a representative of the church in court, and will not intercede for his own benefit, but for the benefit of the church. For these reasons and in judicial practice, persons belonging to the clergy of the church in whose favor the will was refused are allowed to be witnesses in a will (Cass. decision 1874, No. 53). Secondly, relatives of those persons in whose favor the will was drawn up cannot be witnesses, up to the fourth degree, and relatives up to the 3rd degree, if the will is not made in favor of the direct heirs in whole or at least in part. The law, apparently, assumes that if the will is made entirely in favor of the direct heirs, then their relatives and relatives can be safely admitted as witnesses, for even without this will, in the drafting of which the witnesses assisted, the same persons to whom the estate is assigned under the will would inherit by law; there is no place for a prohibitive rule to operate here. On the contrary, there is a place for it, and the case of the inability of a witness is possible if the estate is bequeathed to indirect heirs, or, in addition to the direct heirs, other persons are indicated in whose favor assignments are made. In this case, relatives and relatives of these persons cannot be witnesses to the prohibited extent. Direct heirs should be understood as those persons who are heirs by law at the time of drawing up the will and at the time of testimony, for it is at this moment that the law intends to eliminate the biased, interesting attitude of witnesses to the subject of the testamentary disposition; therefore, if at that moment there was a witness defect, he cannot correct himself from the fact that in the person of the direct heirs a change occurred due to random reasons on the day of the testator’s death. A) Not in favor of direct heirs. There is an opinion that the law in this case opposes direct heirs to strangers in general, i.e. not to heirs. There are solutions in this sense. See decision Mosk. General Collection in the case of the Kindyakovs, Zh.M.Yu. 1861, No. 1. In this case, the mother provided the estate to her daughter, bypassing the brothers, one of whom signed the will as a hand holder. On this occasion, the question arose: can a will be considered drawn up in favor of the direct heirs, when it is drawn up in favor of the daughter, without the brothers. The Senate decided that it was possible. On the same subject, see the decisions in J. M. Yu. 1866, vol. III, p. 278. Coll. Sep. decide II, No. 546. See also the decision of the General. Collection Sep. 1869 in the village of Kuzmina-Korovaeva. In this case, the will was drawn up in favor of the children, who were the direct heirs, and their relatives signed as witnesses. After that, the testator entered into another marriage and had new children, so that upon death his will turned out to be drawn up partly not in favor of the direct heirs, and this was the basis for the objection to the correctness of the witnesses. The will, however, was recognized as correct based on the moment it was drawn up. In dec. General Collection Sep. 1869 in the village of Krugovova 1054 st. - hardly substantively - is interpreted in such a way that the greater or lesser degree of benefit or advantage provided by the will does not matter. It is also hardly possible to agree with what was expressed in Cass. decide 1881, No. 79 with the view that relatives up to the fourth degree and relatives up to the third degree of those persons in whose favor a will is drawn up can sign as witnesses, regardless of whether the will is made in favor of all or only some heirs. The view about the contrast in Art. 1054 heirs to strangers does not seem to agree with either the letter or the intent of the law. The letter of the law speaks not just about heirs, but about direct heirs, traces, it contrasts not only an heir to a third party, but also a direct heir to an indirect one. With all the vagueness of the term: direct heir, one cannot help but admit that it denotes one of the types of heir’s state, i.e. the fortunes of blood relatives who generally have the legal right to inherit. The purpose of the law would not have been achieved if distant relatives, benefited by the will to the detriment of the immediate or direct heirs, were not included under it (decision in this sense, Cass. Dt. 1874, No. 125). Relatives of persons in whose favor a will is drawn up cannot be witnesses if it is not made in favor of the direct heirs in full or at least in part. So. To apply the law, it must be made clear, firstly, whether the person against whom the witness is defamed is a direct heir under the testament and what his inheritance share would be; secondly, if according to the law it had its share of the inheritance, then in what way the share assigned to it exceeds the legal one. But strict application of such a rule is extremely difficult and in many cases would be unfair. Equitable application must not be merely mechanical, but with reasoning. If any excess of the legal share, however insignificant, in terms of accounting for values, can be brought under the formula of the law (for example, when a father would assign some movable things to his daughter’s sons, in addition to her share), then the implementation of the law would go beyond its purpose and intention, in violation of justice, and therefore in this case, a mere numerical calculation of values ​​in tithes, rubles and kopecks is not enough. It is necessary to establish, at the discretion of the court, the fact that the will expresses the intention to make an appointment primarily in favor of a well-known person, to benefit him over others. A lot of bewilderment is raised in practice by the exact definition of the degrees to which the relatives of the person benefited by the will are prohibited (Article 1054) from being witnesses to the will. The law says: relatives up to the fourth degree and relatives up to the third degree. The law does not explain: inclusive, and then it remains unknown whether the prohibition extends to the 4th and 3rd degrees, accommodating only three degrees of kinship and two properties, or whether it includes in addition the 4th and 3rd degrees? Judicial practice has resolved this issue differently, leaning either towards a strict (as, for example, decision 4 Dep. Sen. May 28, 1868 in the Simborsky case), then towards a more extensive and lenient interpretation. And indeed, if it is impossible to draw an abstract boundary of kinship, based on definitive internal characteristics, at which the assumption of partiality of a close relative stops and is suppressed, it is natural and reasonable to accept the narrowest limit indicated by the letter of the law, in the simplest grammatical and logical interpretation of the expression: to: In the ordinary sense, this expression indicates the limiting line of movement at the entrance, and not at the starting point of the object to which the movement extends. When I talk about my ascent up the ladder: I have reached the fifth step, these words cannot mean, without violating the direct meaning, that I have also ascended to the fifth step. There were no other elements to interpret the letter of the law, because rule 2 of paragraph 1054 of Art. does not have a direct historical or logical connection with any previous legal provisions, and, constituting a literal repetition of the article of the 1831 provisions on wills, is not accompanied by any explanation in this provision. So, recognize that in 1054 Art. degrees, of course, inclusive, would seem to mean imposing on a private individual in civil law an unnecessary burden that direct law did not impose on him. Moreover, it should also be noted that in the edition of other articles, St. Zak. the word up usually means the extreme limit, unless the word is added: inclusive. See, for example, St. about the order. ed. 1885, Art. 1559, 1594; Est. Corner. Court. Art. 707. Recently, judicial practice has acquired another pretext to expand the prohibition established by Article 1054. Upon publication of the Notarial Regulations, it contained (Articles 75 and 87) a rule prohibiting, under fear of the invalidity of the notarial act, the signing of it as witnesses by relatives of persons for whose benefit the act was written, up to the fourth degree and relatives up to the third degree, inclusive. It is obvious that this rule, positively expressed in the Notarial Regulations, can be applied to a will only made in a notarial manner, but does not in any way apply to a will as a domestic act. It is even less possible to use the Notar article. Provisions for the interpretation of the article on the form of household wills. However, there is an example of such an interpretation in the Cass decisions. D-ta Jan. 1874, N 125, 1877, N 14. B) Witnesses in whose favor a will is drawn up are considered illegal and their certificate is invalid, even if they subsequently renounce the will in their favor. Sat. Sep. decide II, No. 503. In general, when resolving the question of whether the persons who signed the will have the right to be witnesses to the will based on their personal qualities and relationships, one should take into account not the time of death of the testator, but the time of drawing up the will (more correctly, the time of calling for testimony and the certificate itself). Wed. decide Sep. J. M. Yu. 1865, N 5. C) Questions arose: should the vice specified in paragraphs 1 and 2 of Article 1054 be assigned only a private effect to the corresponding order of the testator, without extending this effect to the whole will, i.e. to recognize as void only an appointment made in favor of a person who is incorrectly named as a witness or with whom one of the witnesses is related, or to recognize the certificate as valid if the witness or his relative refuses the appointment made. This interpretation clearly disagrees with the letter of the law, which speaks not about a testamentary disposition, but about the entire will, and with the very purpose of the law, which is intended to prevent the biased attitude of the witness to the will of the testator at the moment of expressing it and drawing up the act. When this minute has passed, it is impossible to restore it, and to correct in relation to some parts of the act an action that was wrong in relation to the whole act. (The same should be noted about the prohibition placed in the next paragraph.) Thirdly, executors and guardians appointed under the will cannot be witnesses. Executors are considered illegal witnesses, even if subsequently, even before the appearance of the will, they have renounced the title of executor. See Sat. Sep. decide vol. 1, N 556. In the case of Sidneva (J. M. Yu. 1864, No. 12), the Senate recognized that the second false executor, appointed in the will in place of the first, if the first refuses or dies, and who signed as a witness to this will, can, if the first executor exists, be considered a legal witness of the will. To Cass. decide 1874, No. 53, it is recognized that a person appointed to supervise the execution of a will by another is not an executor, and therefore can be a witness. Fourthly, persons who themselves do not have the right to make wills. This rule (4 paragraph 1054 of Art.) corresponds to rule 71 of Appendix I to Art. 708 about witnesses under acts. However, in 1865, the opinion of the State Council decided, as an exception, not to exclude monks from testifying, although the monks themselves were deprived of testamentary rights (note to Art. 1054). Fifthly, all those who, according to general laws, are not accepted as evidence in civil cases. The disputants against the will refuted the legality of one of the witnesses to the will on the grounds that this witness was engaged in written affairs first with the testator, then with the one in whose favor the will was written, and had a legal case with them, the disputants. The Senate, having considered 4 paragraphs 1054 of Art. Zach. Citizen and article by Zak. Court. Citizen on the elimination of witnesses, found that, according to general laws, any person can be a witness when there is no reason to assume that his testimony will be incorrect, and therefore persons who were involved in the case and had enmity with the litigants are not allowed to testify under oath. This law applies only to litigation cases, i.e. to such cases in which personal relations between litigants and witnesses may give reason to assume that the testimony of these latter, due to personal hostile relations, will be incorrect; but such relations cannot exist between the testator and the persons invited by him to testify; There is no law that would prohibit persons who were in the service and received food from the testator from being witnesses in a will, and such persons can be allowed even in litigation when there is a lack of other witnesses (Sb. Sen. Resolution II, No. 805). According to the village of Gavrilenko (Sen. 2 Dept. 3 Dept. 1873), one of the witnesses under the will was discredited because his service was dependent on the person in whose favor the will was made. This objection was recognized as unfounded, since there is no law according to which in such cases persons in the public service would not be allowed to testify. The interpretation of this paragraph may present difficulties. This rule was issued under the previous laws on civil proceedings; Now these laws have been replaced by a new Charter, in which certain categories of incapable witnesses from the old laws are not accepted. The question is: for those areas in which the new Charter of Legal Proceedings is in effect, should paragraph 5 of Article 1054 be brought into force? Zach. Citizen all categories 191 Art. Zach. Sudopr. Citizen? Of course, it follows, because the thought of the legislator when issuing the law on wills (in 1831 and 1842) had in mind the negative qualities of the witness identified in the Laws of Civil Procedure; So, it must be recognized that everything specified in Art. 191. Zach. Court. Citizens, persons cannot be witnesses under a will. This includes, in addition to minors (already excluded by paragraph 4 of Article 1054 of Article 1054 of the Civil Code), the insane and the insane, the deaf and dumb, those deprived of honor and rights, obvious adulterers (an imaginary sign due to its vagueness) and those who have never been to Holy Communion. Then, applying the thought of the legislator, the categories of incapable witnesses should also be included here, with the distinction of signs adopted by the wording of Art. 371. new Est. Gr. Court. In all this, it is obvious that not all categories of witness incapacity that are mentioned in Zak’s articles. Court. Gr. and Const. Citizen Court., applicable to witnesses in spiritual wills. The Charter of Civil Proceedings distinguishes the signs of unconditional incapacity of a witness from conditional signs, which are examined only by challenge, and some of the signs are based on the alleged bias of the witness towards one of the parties to the proceeding. Of course, prohibitions of a purely procedural nature cannot be applied to a will. There is no direct indication in the law by which one could judge which reasons for the general incapacity of a witness are applicable and which are not applicable to a testamentary certificate; but the decisive expression: “not accepted” suggests that all persons, of course, due to the internal quality of their person, who are not capable of testifying in civil matters, are excluded from testifying under a will. As for the relative incapacity (in relation to interested parties, Article 373 of the Constitution of the Civil Law), then on this subject there is already a special law for witnesses to a will (1, 2 and 3 of paragraph 1054 of Article of the Civil Law), eliminating in any case the effect of the general regulations on testimony in civil cases relating to the same subject. The law does not allow women to testify under wills - only in the Chernigov and Poltava provinces, according to the Lithuanian statute (1055). Dissenters and Old Believers, according to Art. 1057. Zach. Citizens are excluded from witnessing in the wills of Orthodox Christians, but wills drawn up by people of the same rite as themselves can bear witness. Particular strength is attached to the testimony of the spiritual father: this rule reveals the historical and ecclesiastical principle of spiritual memory. In cases where, according to the general rule, there should be three witnesses, two are sufficient if the spiritual father of the testator is among the two (1048). But the word spiritual father should be understood in the narrow sense of confessor, i.e. to mean a clergyman who confessed to the testator recently before drawing up, or during the drawing up of the will, or who was the testator's permanent spiritual father. The testimony of any priest cannot be assigned special power, combined with the title of confessor, which presupposes a personal spiritual relationship with the testator. On the other hand, there is no doubt that the testimony of a spiritual father can only be discussed in relation to such testators who belonged to a religion that allows canonically (and not just by custom) confession and, in connection with confession, the relationship of the spiritual father to the spiritual son. Therefore, the law, not recognizing the church structure of schismatic sects, does not allow the title of spiritual father in persons belonging to such sects (Article 1057; cf. the plural State Council of 1852 according to the village of Peshchanetsky that a spiritual father can only be in the Christian confession). In what sense should we understand the word: spiritual father? It is obvious that not every priest is given special power: the title of spiritual father presupposes a personal spiritual relationship with the testator. This attitude, as you know, changes in life. You can have several confessors: one permanent and elected, along with others, temporary and occasional, for every priest who had to confess to can be called the spiritual father of the confessor. Finally, in the dying hours, the deceased could confess to a new priest and receive communion from him, or he could confess to one and receive communion from another. There seems to be no reason to believe that the law understands by spiritual father exclusively the person who advised the dying person, and any person who has ever been the confessor of the testator can be considered, in a will, to have the legal power of a spiritual father. But if the testator confessed to one, but received communion from another priest and called the latter to participate in the will, can he designate himself as the spiritual father in the will? If it can mean, then its testimony will have double legal force, but if it cannot, then it will not. The first question is decided, obviously, on the basis of church law and church discipline, and in the church sense, the title of spiritual father is in direct connection with confession (on this issue there was a case about the will of Diatellovich, a Roman Catholic, in the 1st General Collection. Sen. Sl. May 11, 1873). The signature of the witnesses follows the signature of the testator, but cannot in any way precede it, because, by the way, the signature of the testator is evidenced. The signature of the witnesses must not be on the cover of the paper (i.e., on the outer sheet into which the sheet of the will is inserted), but on the sheet of the will itself: either inside it, or on the back (Article 1065). It follows that the text of the will with the signature of the testator and all witnesses must form one material whole; So, if the will consists of two or more sheets and the signatures of all witnesses cannot fit under the end of the text on the last page, then, in order to give the entire will complete integrity, it is necessary to seal it sheet by sheet according to the rule of Art. 1035. (there are decisions in the opposite sense, for example, Sat. Sen. decision vol. II, N 1117; but they hardly correspond to the requirement of Art. 1056). The signature of the witnesses certifies: 1) the authenticity of the will, i.e. in that the person who presented them with the will is exactly the same person by whom it was made and signed; 2) that when the will was presented to them, they all personally saw it and found it of sound mind and sound memory (Article 1050). The witnesses who signed the will must testify about all this orally or in writing, if they are alive, after the death of the testator, during the interrogation that he conducts regarding the appearance of the household will, and if on these subjects there is a discrepancy between one witness and another or a discrepancy in the testimony with what, according to the law, a witness signature on the will should certify, then the entire will may be suspected of authenticity and left without statements. In this regard, the formal and material significance of the testimony is unconditional, and it is impossible to allow, apart from observing the form and integrity of the testimony, any other way to certify or restore the authenticity of the will. This circumstance must be kept in mind when drawing up the act, both for the testator and the witnesses, because any negligence or inattention on this subject may result in a serious misunderstanding after the death of the testator, which can give rise to a refutation of the formal, but certainly required signs of the authenticity of the will. In our country, unfortunately, little attention is paid to this important circumstance. It is necessary, firstly, for the witness to adhere as accurately as possible in his signature to the formula specified in the text of Article 1050, so that both he and all outsiders know immediately what he is testifying about and what he is obligated to confirm. Although there is no reason to recognize that an essential accessory of a signature is the designation in it of all those circumstances about which the law requires testimony in a will, although it obviously seems that anyone who signs himself as a witness under a will, thereby already shows that his testimony refers to the items specified in Art. 1050. Zach. Citizen, but it happens that in a dispute over a will, objectors base their doubts and disputes precisely on such incompleteness of the signature, and courts stop at such objections, therefore, out of precaution against such a misunderstanding, the witness must observe the possible completeness in the formula of his signature. For example, this could be the formula: “that this spiritual will was really drawn up and signed by such and such a testator, who presented it to me, and I, having seen it in person, found it to be of sound mind and strong memory, so and so testifies.” It is enough if the first witness puts his signature in such a formula; subsequent witnesses can then write without fear: “I testify to the same thing.” Secondly, the testator and the witness must not lose sight of the fact that the action of the witness and his signature is a serious civil act, in which he may have to give an account to the court, therefore, it must be done in truth, i.e. ensure that the signature and certificate correspond to the actual event. The testimony of the witness must be firm and positive, in accordance with everything that the law requires in Art. 1050. If it does not fully comply with this requirement and is not completely definitive, the place of appearance will have the right to refuse the appearance of the will. Meanwhile, in most cases, in our country, witnesses allow themselves to sign a will in absentia, in the absence of the testator, whom they not only do not see at that moment, but, perhaps, have not seen for a long time. Another testator, having written a will, treats it frivolously, i.e., when the opportunity arises and to the extent possible, he offers it to random visitors for signature or even sends it to a friend’s house for signature. This is very careless. A witness, signing a will in absentia, can act in complete good faith and in full confidence that the testator is fully conscious, and yet, by signing the will, he is not testifying to the truth. After the death of the testator, it is rare that a will leaves no dissatisfied people. Discontent arouses hope whether it is possible to overturn the will, and reasons for a dispute can always present themselves. One of the most common means is to argue that the will is of doubtful authenticity and that the testator did not have full consciousness. As soon as the dispute is initiated, the witnesses will have to testify at the trial, and then, if such an absentee witness is asked questions about the items included in the legal formula of the certificate, he, no matter how personally confident that the will is genuine, will have to slander himself, i.e. show in good conscience (perhaps under oath 91) that he signed the will in absentia, i.e. Moreover, there was no personal presentation of the will; therefore, there cannot be unconditional certification of what the law requires: that at the moment of presentation the testator was of sound mind and sound memory. Thus, from the initial negligence of the testimony, an act will perish, which otherwise would have remained irrefutable (cf. decision on the village of Shurinova Zh. M. Yu. 1866, No. 7). The law does not positively require that the presentation of the will to all called witnesses be made at the same time, but for the firmness of the will, every testator will do well if he makes this presentation to all witnesses together. In the later practice of the Cassation Department of the Senate, it was adopted that was hardly consistent with the exact meaning of paragraph 1 of Article 1050. the provision that the will can be presented to the witness for signature not personally by the testator himself, but by another person; it is only necessary that the witness be convinced that the will presented to him is the same one that the testator asked him to sign (decision 1879, No. 4). From the literal meaning of v. 1050. (signature: certifies only) it follows that witnesses do not need to know the contents of the testator’s last will. The law presupposes that the witness only has confidence in the identity of the last will with the paper that was presented to him and signed by him. In the case of Xida (Sborn. Sen. decision vol. II, No. 853), one of the witnesses to the will testified that he signed it out of respect for the testator and could not confirm whether the testator was accurate in his mind and memory, but then, as the rest of the witnesses in sufficient numbers gave positive testimony, the will was confirmed in authenticity. When drawing up a will, it is said in decision. Cass. 1872, N 960, in most cases, due to special circumstances, some errors and omissions are inevitable, and therefore the cancellation of the act as a whole, due to any error or omission in a separate part of it, if it is impossible to correct these errors or omissions, would be unfair both in relation to the memory of the deceased testators and in relation to persons having an interest in the will. Therefore, the Senate upheld the Chamber's decision on Rudin's will. In paragraph 5 of the will, from the capital denied to Vasily Rudin, assignments were made in favor of the testator's daughter-in-law Anna and her two daughters, but it turned out, according to the testimony of witnesses, that when the will was presented to the witnesses, gaps were left in this paragraph for entering the amount, and these gaps were filled in by the scribe, at the request of the testator, the very next day. The Chamber recognized that these amounts cannot serve as a legal expression of the will of the testator, and that the orders of paragraph 5 are invalid. On the part of the disputant, who complained about the decision of the Chamber, it was required that the entire will be declared invalid due to this defect. Due to doubts about the authenticity of Koscialkowski's household will, an investigation was ordered, during which some of the witnesses who signed the will gave testimony that did not agree with what they showed during the initial interrogation before the appearance of the will in the Chamber: they first showed that the will was presented to them by the testator himself, and then that it was presented by an outsider. For this contradiction, the Chamber refused to accept the will for appearance, but its conclusion, confirmed by the Senate in the Department, was canceled in 1871 by the General Assembly, which recognized this discrepancy in the circumstances of the case as insignificant. The discrepancy of witnesses during interrogation, in unimportant circumstances, does not prevent the appearance of the will when they essentially agree. In the village of Zotova (General S. September 1867), the witnesses differed in their testimony about the time of signing the will, and this was not considered an obstacle. What is essential and what is not essential, the court judged, but it can hardly be said that, apart from the items specified in Article 1050, everything else is unimportant. The difference depends largely on whether there is a dispute or not. When there is doubt about authenticity, even a small circumstance can have a significant impact. According to Dobuzhinskaya's will, of the three witnesses, one was not found, the other confirmed the will, and the third announced that although he signed the will, he renounces his signature and considers it illegal. In view of such a revocation, the will was declared not subject to appearance (opinion of the State Council of 1874). A will cannot be recognized as genuine and accepted for appearance if at least one of the witnesses during interrogation does not recognize his signature as genuine or declares circumstances that are not consistent with the legal certificate of the authenticity of the will (see many. State Council. 1874 on the village of Bukhovetskikh). Such testimony of a witness eliminates the possibility of an undisputed appearance, even in such a case when the remaining witnesses, in a sufficient number according to the law, confirmed the authenticity of the act. A will is authenticated by the combined testimony of all the persons who have signed it, and the authenticity cannot be considered as valid unless these persons agree with each other in the certificate of essential features of authenticity. According to Maistrenok’s will, signed by four witnesses, two witnesses testified during interrogation that they did not know whether he was of sound mind and understanding when signing the will, and one of them, priest Makovsky, explained that he was invited to sign by Maistrenok’s wife, who himself did not start talking to him about the will, and Priest Karvovsky testified that the will was presented to him by Maistrenok’s wife and signed at the request of Maistrenok himself and his wife him. Given such uncertainty and discrepancy, the testimony of three witnesses was declared invalid, and the testimony of one fourth was insufficient to approve the will (pl. State Council, 1873). To Cass. practice (dec. 1875, No. 322) recognizes that discrepancies in the testimony of witnesses are not yet grounds for declaring a will invalid; if the number of witnesses required by law confirms that the testator was of sound mind and good memory, then the statement of the others, which contradicts their testimony, does not oblige the court to recognize the will as invalid: it is up to the court to give preference to the testimony of one or the other, and in the first case, therefore, to approve the will. § 57. Serf will. – Drawing it up and appearing. – Notarized will A serfdom will is an act that is not carried out in a serf manner, but is made in person, and therefore is not written at the serf's office, but is written at home, like a home will, only with payment of a simple stamp duty (Vol. V, ed. 1893, Constitution of the Coat of Arms, Art. 8, paragraph 6), or with one’s own hand, or with someone else’s hand, and is signed by the testator himself or the executor for him, as a general rule. Then the most important formalities of this will are related to the order of appearance, since this appearance verifies its authenticity. The will is presented by the testator personally to the court where serfdom affairs are held. If the testator is known to the court, then there is no need for witnesses at all, otherwise two witnesses must appear with him in court, at least one of whom must be known to the court. They certify to the court the identity of the testator by signing on the will itself. If the deed is signed for the testator by another person, then the executor must be present along with him at the appearance. Then, in the presence of the court, the testator is questioned whether the will was accurately signed by him and contains his will; and if there is a person who committed assault, then he is interrogated as to whether he committed assault and for what reasons. The will is recorded in the land register word by word, then an inscription about appearance and a note is made on the will, signed by all those present, and the will is returned to the testator with a receipt. All of the above is entered into the minutes of the meeting (Article 1013, note, appendix Art. 1–6, 9). Compliance with this ritual in its entirety is considered so essential that only with the end of the last action, i.e. with the issuance of the deed against receipt by the testator himself, it is recognized as completed in final force. In practice, even wills that were finally written down in a book and signed were rejected, by the force of serfs, if the testator did not have time to accept the act of serf affairs (J. M. Yu. 1859, December, p. 113, 1860, X, 11. Sat. Sen. Resolution T. I, N 612). The personal appearance of serfs' wills in court was considered, by general law, unconditionally mandatory; only in the Chernigov and Poltava provinces before the introduction of the Notarial Regulations (cf. Zak. Gr., ed. 1857, art. 1045) the law allowed, due to the illness of the testator, at his request, to take the consciousness of the testator at home, in front of all members of the court, or at least in front of one, if there are two more invited witnesses. But in 1845, this benefit was extended, and according to the general law, to only the case of a serf will, when the family estate is transferred from a childless person to one of the relatives (Article 1068, note). Special power and special significance, on a par with serfs, are assigned to those household wills that are made by the testator himself (personally, and not through another person, as interpreted by judicial practice. Coll. Sen. Resolution II, No. 459. J. M. Yu. 1862, No. 5. Mn. G. S. 1871 for the village of Karpacheva and Redkin in the Collection of Uz. 1872, No. 194) were submitted for storage to the Board of Trustees, or to the department of the office of the Council of the Humane Society, or to the Trustee Committee of this Society. About such wills it is said that notification of the falsity of their preparation is not accepted (Articles 10351, 1052, note; 1058). A) A will, which, having been presented to the public office for certification as a serf, has not yet had time to be executed in this capacity, may still be recognized as a household will. Mn. State Sov. 1851 in the case of Natruskin and Sb. Sep. decide vol. I, N 612. This rule is clearly expressed in time. positive on wills on April 5, 1869, but does not constitute a new legalization, as explained by the Senate (Cass. decision 1873, N 1684). B) In the Prokofiev case (Collected Sen. Resolution Vol. II, No. 1059), the Senate reasoned that in the rules on the procedure for making serf wills, although no division was made into more or less significant ones, it cannot be ignored that the implementation of some rules depends directly on the testator, and the execution of others relates directly to the duties of the public office; inaccuracy in the observance of the latter cannot fairly be blamed on an honest person, unless there is doubt about the authenticity of the will. Therefore, it was recognized as an insignificant omission, in the circumstances of the case, that no interrogation was taken from the signatory of the will, and that the signature on the will was not signed by all the members who signed the order of appearance. In the Lebyazhinskaya case, no authentic protocol was found on the commission of the crime. interrogation wills. But since it is undeniable that the will was submitted for appearance personally by the testator herself and personally received back by her, the Senate (4th Department., decided on December 1, 1870) left it in force, recognizing that the selection of interrogations, the entry of an act into the book and the drawing up of a protocol are rituals that fall on the duties of the public office itself. The dispute was that the rituals were not observed at all. Persidsky's will was drawn up on May 12, and in the interrogation protocol his signature appears that he recognizes his will, drawn up on May 8, as valid. There was no doubt about the identity of the will, but the Senate (4th Department, decided on January 28, 1871) recognized that if an error had occurred in the interrogation, then the will of May 12 cannot be considered a serf will, because the law not only requires especially strict fulfillment of all formalities of serfdom, but, anticipating the possibility of a typo, also indicates the procedure for correcting it in Art. 747, 890, 906. Zach. Citizen (708, appendix I, art. 26, 140, according to the 1887 edition) and 166 art. II volume. General. Lip. Institution (corresponding to Article 124 of the same Constitutional Edition of 1892). However, in General Collection Sep. 1873 it was necessary to recognize the will as a serf. In another decision, according to the village of Krestovsky, 1868, General. Collection Sep. recognized that when making a serf will, the violation of clerical formalities is not significant, but the violation of the fundamental requirements of the law is significant. These requirements were found to be violated in the following case. The will is presented to the court not by the testator himself, but by trust of others; the interrogation was filmed not in the presence of the court, but at home; the handicapper for the illiterate testator was not present at the appearance and was not interrogated, and the will was from the crepe. the case was not received back by the testator himself. In the village of Meshchaninova (Ob. Collection September 1869), the will was not accepted as a serf due to the following shortcomings. The will was submitted to the Chamber unsigned by anyone, with a petition signed due to the illness of the testator by a third party, by whom the petition was submitted, while in it the filing was entrusted to someone else. Upon such a request, the testator was interrogated at home by a member of the Chamber, and the act of interrogation states that it was carried out in the presence of witnesses; there are no signatures and the identity of the testator remains uncertified. There is a special act on the examination of witnesses, the scribe and the executor who signed the will; but on the will itself there were no signatures of the executor or witnesses. C) In 1868, the landowner Oginskaya in the Western Territory bequeathed the family estate to one of the family members, on the basis. 1068 art. Zach. Gr. and submitted the act for execution by serfdom, but due to the force of the decree of December 10, 1865 (on the non-transfer of the estate to persons of Polish origin), difficulties were encountered in completing the act. In September 1869, the highest permission to do so followed, but in February the testator died without having time to perform the ceremony. On the part of the successor under the will, a petition arose for permission to accept the act for appearance as a household document and assign to it the force of the formalities specified in Article 1068, since these formalities were not observed due to circumstances that did not depend on the will of the testator. This permission was given with the Highest permission. The establishment of serf affairs, together with the previous procedure for appearing and performing acts, was retained only in those areas where judicial places remained in the previous organization, due to the fact that new judicial institutions and Notarial Regulations had not yet been put into effect. The rules of Part I of Part X on the procedure for drawing up and presenting serf wills are applied to these areas only. And for those areas where judicial statutes were introduced in full on November 20, 1864, new rules were published in 1869, consistent with the notarial procedure for certifying acts; According to these rules, notarial wills take the place of serf wills. Because of this, the very procedure for writing and drawing up wills brought to the notary for appearance has become more complicated by the use of Art. 67, 70–76, 83, 86–92, 95–101 and 103–114 provisions on the notarial part. The previous procedure for witnessing wills in serf affairs was in person, and the court was positively forbidden to enter into verification of the legality of the testator’s orders; Today's present wills are made by a notary, who has the right, by virtue of the general rules of his instructions, to require private individuals to comply with many burdensome formalities and to enter into the contents of the act. This leads to significant constraints, the relief of which will probably not be slowed down by new legislative changes. Notarial wills are made only in the personal presence of the testator (by virtue of Article 114 of Notary. Statute acts can be made at home, for good reasons), with three witnesses, who can also verify the identity of the testator. Witnesses cannot be persons recognized as incapable according to the rule of the Notarial Regulations and according to the rule of household wills. A genuine will is recognized not as an act signed by the testator and given back to him, as was the case in the previous order, but as an act entered into the deed book, and the testator is given an extract from this book, paid with a simple stamp duty, with former witnesses who certify the issuance with their signature in the register to a notary. This extract is equivalent to the original; but in the event of a dispute about dissimilarity, preference is given to the original if there are no unspecified erasures and amendments in it in the disputed articles. The second and subsequent extracts, during the life of the testator, can be issued only to him alone or to an authorized attorney. Such a will is assigned the same power as was assigned to a serf: doubt about its authenticity is decisively eliminated; To refute the authenticity, it is necessary to present a dispute about forgery. But a will, even if it was not recognized in the force of a notary, can still be recognized in the force of a home one (Zak. Gr., art. 1012, 1013, 10351, 10352, 1036–1042). We present from the Notarial Regulations the essence of the rules that must be observed regarding wills on the drawing up of an act. The act must indicate the year, month and date of commission, first name, patronymic, last name, place of residence of the notary, with his signature. When identifying persons, both in the deed and attestations, as well as in the signatures, first names, patronymics, last names, titles and places of residence are written down so that there is no doubt about identity (a rule that, due to the notary’s misunderstanding, can turn out to be very embarrassing for the testator). The act must mention all the documents submitted to complete it; it must be indicated to whom the statement should be issued; it must be indicated that the act was read in front of witnesses. Acts must be written in Russian, on a Russian coin, weight and measure, or with a translation of the coin, etc. into Russian. Acts must be written clearly, with numbers, numbers and deadlines written at least once. Gaps, amendments, additions and abbreviations are allowed with a reservation, signed by the participants. Spaces should be crossed out, and the correction should be crossed out with a thin line. Erasures are not allowed. Signatures and receipts may be in a foreign language, but with a certified translation into Russian. Witnesses must sign the act. If, instead of the person committing the act, the person who performs the act is signed in trust by the person who applied the hand, then this is verified in the signature of the witnesses. Identification must be stated in the signatures of witnesses. On the qualities of witnesses. Witnesses can only be adults, literate and known to the notary personally or by reliable testimony about them (it is hardly possible to allow the testator’s identity to be a witness based on the identity certificate of those witnesses). Blind, deaf, insane, not knowing Russian, interested persons (87 Art. Notary Pol.), employees in a notary's office and their servants, deprived of the right to testify by virtue of a court verdict, cannot be witnesses. 1888 Oct. 19 (Collected Resolution 1890, No. 96). – In the case of Pavel Dzhikashvili Gr. Cass. The Department, by the way, resolved the question of whether a domestic spiritual will, on which there are signatures of two witnesses and whose copyist was the spiritual father of the testator, is subject to approval - in a negative sense, since the participation of the spiritual father of the testator in the drawing up of the will as its copyist does not have any influence on the number of witnesses required for the validity of the spiritual will. 1890 November 7, No. 87. To the question: did the judicial chamber correctly recognize the signature of a notary, appearing on a notarial will, as equivalent to the signature of a witness when considering the same will as a home will, Gr. Cass. Dep. gave an affirmative answer, since certification of the legal capacity of the testator, his desire to make a will and the fact that the notary personally knew the testator meets the requirements of Art. 1050 t. X part I. 1891 Oct. 2, No. 70. – Resolving the question in the Gilevskaya case: can a notarial spiritual will be recognized as valid, when drawing up one of the witnesses was a minor, Citizen. Kassats. Dept. found that the presence in the number of witnesses established by the type of act of a person who has not reached civil age, i.e. twenty years and a year, deprives this act of the validity that it would have had in the absence of this omission, and, therefore, a notarial spiritual will cannot be recognized as valid when one of the three witnesses was a minor. About the execution of the act. The identity of the perpetrators can be verified not only by witnesses, but also in other ways. The notary, upon presentation of the act, interrogates the participants: do they really want to do it of their own free will and do they understand its meaning and significance? A person who does not speak Russian must have an interpreter. The notary reads the draft deed to the executor, announcing the amount of fees; upon agreement and payment, the project is entered into the deed book; then it is read again to the performer, or to himself, in front of witnesses (for the deaf, dumb, blind and deaf-mute, special formalities are Art. 106, 111 Notar. Pol.). After reading the act, it is signed in the deed book by the participants, witnesses and the notary. A notary is prohibited, under fear of invalidity, from making acts in the name of both himself and his wife or their relatives, in the direct line without limitation, and in the lateral line - relatives of the first four and relatives of the first three degrees, as well as persons under his guardianship, adoptive parents and adopted children. Individual orders in the act in favor of the notary himself or other above-mentioned persons are recognized as invalid, but the acts themselves remain in force (76 Art. Notary Pol.). § 58. Appearance of the will. - Its meaning is twofold. - Announcement. - New ritual of appearance. – Keeping a will Appearance is a necessary action, by the performance of which the will is announced, verified as authentic, and receives legal significance and binding force. Every will is subject to appearance, which has a double meaning. One is for authentication, the other is for public announcement and approval for execution. It is obvious that the last action can take place only after the death of the testator, and therefore for household wills that remain silent during the life of the testator and are revealed only after his death, appearance combines both meanings. And serf wills, the authenticity of which is certified by appearance during the life of the testator, require another appearance after his death in order to be approved for execution. So, the appearance of a serf will and a home will do not have exactly the same meaning. The essential purpose of the appearance is to certify the authenticity of the will and to ensure that it maintains the established forms, since the assumption of authenticity is associated with these forms. The form, as indicated above, is simpler in a serf will; therefore, the concept of turnout is simpler. It is performed directly in the presence of a living testator, therefore, it is convenient here to correct errors in form and fully certify the true will. The law directly states about the appearance of serf wills (Article 1013, note, appendix, Article 7) that it only certifies the authenticity of the will, but does not thereby confirm the legality of the orders contained in it, about which disputes can be raised even after the appearance. Therefore, when appearing at the certificate of wills, one should not go into consideration of the testator’s orders themselves, but only observe whether the established forms are preserved in the will. On the contrary, regarding household wills the law states (Articles 1014, 1060 and 708, Appendix I, Articles 18, 20) that they appear after the death of the testator to certify their authenticity and legality. The place for the appearance of household wills (for serfs' cases) is the judicial place. The court, upon receipt of the will, makes sure that it was submitted on time, and calls the signed witnesses for questioning, which it does in the presence of the court, without an oath, about the items specified in Article 1050 regarding the authenticity of the will. These interrogations can be taken from them at their place of residence, in a court place or at the home of a member of the court; but there is no need to interrogate those who are absent if there are enough witnesses. If some of the witnesses, or even all of them, turn out to be dead, this does not prevent the will from appearing, as long as there is no dispute about its authenticity: in the latter case, such a will is sent for judicial consideration, unless it is protected from such a dispute by personal deposit in institutions that are privileged at this time (1050, note; 1052, note). Upon completion of the interrogation, if the testimony of witnesses meets the requirements of Art. 1050. and if the established forms are preserved in the will, the court, according to the journal, places on the will an inscription about attestation. A) Is it possible to dispense with the examination of a witness during the appearance of a will, when there is no certificate of his death and there are no means of finding him? Cas. the decision of 1873, N 439 explains what is possible. According to the reasoning of the Senate, in such cases it is not necessary to formally recognize the witness as missing: it is quite enough if the interested person proves (?) that there is no way for him to indicate the whereabouts of the witness. Further in the same decision it was added: “due to proven failure to find him”; therefore, the interested party is also obliged to prove that he was looking for the witness, but it was not possible to find him. It is difficult to expect that the interested party could provide clear evidence for everything mentioned. It seems that, in order to clarify these arguments, it should be added that it depends on the court that if it turns out to be impossible to find a witness, it will accept, and without questioning him, the will to appear. It cannot be denied, however, that such a rule is not sufficient for all cases. It may happen that of all the witnesses who signed the will, not a single one will be examined, some due to death, some due to failure to be found. Moreover, doubts may be raised about the authenticity of the act. It is obvious that in such cases the application of this rule would be difficult for the court. B) A lost home will can no longer be replaced with a copy for presentation; but instead of the original serf will, it was allowed to provide a copy of it, copied from the land register, when it is certain that the original will was lost (for example, decision 2 Dept. 3 Dep. Sen. 1873 on the will of Gavrilenko) or was deliberately hidden by a third party (General Collection. Sen. 1867 in the Yaroshevitsky case). Nefedyev’s original home will burned down during the Samara fire. His wife presented a copy of it, copied at the same time when the will was signed by one of the witnesses, and, referring to the draft will that she had preserved, and to the testimony of witnesses, she asked to witness the copy instead of the original. But the Senate (8th Department January 23, 1868) refused it, recognizing that the original house will could in no case be replaced by a copy. In the Siomak case, the Senate recognized that due to the loss in the Chamber of the original will presented for appearance, the Chamber cannot testify to an uncertified copy of it, even if the witnesses who signed the will confirmed the identity of the copy with the original, because the witnesses are not required to know the contents of the will. Journal Min. Just. 1861, No. 12. But there are also solutions in a different sense, for example, plural. State Sov. in the Ahnert case. Full Collection Zach. 1838, N 11721 a. Many believe that the prohibition established in Art. 7 adj. to approx. to Art. 1013 Zak. Civil., does not extend to those cases in which the form is so connected with the content that in order to verify compliance with the formality it is necessary to consider the order itself, to which a special formality is assigned. So, for example, the law prescribes making orders in the form of a serf will to assign an estate to a distant relative under the force of Art. 1068. Zach. Citizen As a result, it has been repeatedly recognized by Senate decisions that in such cases the Chamber has the right, upon the appearance of the will, to raise the question of the legality of the disposition and to enter into an analysis of the qualities of the assigned estate. However, it is hardly reasonable to make an exception to the rule of Art. 7 of the specified application. This article obviously refers to the forms prescribed for authenticating a will, i.e. general forms of a testamentary act, and not special forms established to give this or that disposition a legal form. The prohibition to enter into consideration of the essence of testamentary dispositions during an appearance essentially applies to matters of exclusively private civil interest, and to violations of rights protected by private action. But it seems that this prohibition should not be extended to the violation of rights of general national importance. Confusion about this arose in the Western Territory regarding the appearance of wills, which, contrary to the decree of December 10. 1865, the estate was assigned, by hereditary transfer, to persons of Polish origin; a similar case, about the will of Margulets, came to consideration in 1872 1 General. Senate meetings. This will was accepted by the Kyiv Chamber for appearance, but with the proviso that the real estate should belong to the heirs by law, on the basis of the Decree of December 10, 1865. Senate in 2 Dept. 3 Dept. canceled this determination of the Chamber, recognizing that the Chamber should not have entered into the consideration of the testator's orders during the appearance. This decision of the Senate was upheld by the General Assembly. A similar decision General. Collection Sep. 1867 in the village of Bera. According to this ritual, the will becomes an act of appearance, and as a general rule (Article 708, Appendix I, Articles 115, 120) of an act of appearance, it is necessary to consider whether it is not contrary to the laws, and not to testify to it when illegal orders are found in it, then in view of Art. 1014. Perplexities constantly arose as to whether the court, when presenting a will, had the right to dwell on its contents, which were directly seen to be in conflict with the law. In practice, the force of Art. is usually applied to this case as well. 7 appendices to approx. to Art. 1013 on the appearance of spiritual wills: it is recognized that the court should not pay attention to the essence of the testator’s orders, should not enter into considerations about the meaning and significance of his last will, or into the investigation of the property of the bequeathed estate; even if the bequeathed estate is directly called family estate, then in this case it is hardly permissible to refuse approval of the act, especially since, due to the complexity of the rules about the properties of family estates, the owner’s consciousness on this subject may be erroneous. It is the direct duty of the safehouse to monitor the preservation of forms, but in this regard one cannot fail to recognize the difference between a violation that is obvious in itself and one that can only be revealed through research. In the latter respect, it is also impossible to allow either the right or the duty of the appearance place to enter at its own discretion into verification or search for circumstances that are not obvious in themselves, when there is no direct doubt or a dispute has not been declared. For example, the court can directly reject a witness in whose favor an appointment has been made, but it would be strange, regarding the appearance, and without any dispute, to require certification that the witnesses do not have the deficiency indicated in Part 2 of Article 1054. When notarizing wills, the rules of Art. 83 and 90 are observed. Notary. Provisions, by virtue of which the notary must verify whether those in whose name and in whose name the act is being performed have legal capacity (we must assume personal capacity, and not to acquire this or that property). Acts, the commission of which is prohibited by law or contain something contrary to the laws protecting the order of government, public morality or the honor of private individuals, are not accepted by the notary for execution. In dec. General Collection Sep. 1870 in the village of Zankevich it was concluded that rule 1042 art. (Zak. Civil., ed. 1887, art. 1013, note, adj. art. 7) is also valid for the appearance of household wills. In this case, the testator granted an estate to her young son with the understanding that if he died before reaching adulthood, the estate should be the property of her husband. During the appearance of the will, the chamber recognized the said order as void in relation to the husband. This example also shows the practical inconvenience that comes from judging during an appearance the legality of the testator’s orders. In this case, it turned out that the testator's son died during her lifetime, and in such circumstances, her order could be interpreted, in case of a dispute, in the form of a simple substitution. In Legal Vestn. 1872, No. 3, see the decision of the Saratov Court. Chambers, which recognized: 1) when making a notarial will, there is no requirement for a notary to certify the legal capacity of witnesses personally known to him; 2) rule 1053 art. Zach. about the qualities of the executor does not apply to the executor when signing a notarial will. The Chamber, when witnessing a will, should not add to the signature its own interpretations about the meaning of the will of the testator and explanations about its execution (Sb. Sen. Resolution II, No. 482, 492). As for disputes raised during appearance, they may relate either to the observance of formalities in the will, or to the substance of the dispositions, or to both, or, regardless of the formalities, to the refutation of authenticity. In accordance with the nature of the dispute in such cases, the court either resolved the dispute about the form privately, or, having accepted the will for appearance, left the dispute over the illegality of the orders to be fought in court, or sent the will to court consideration in an adversarial manner. In any case, it was accepted as a rule that a court decision on the certification of a will (or refusal), as a private one, carried out in the manner of judicial administration, cannot have unconditional force in view of the possibility of controversial legal proceedings regarding the will; therefore, upon witnessing, a dispute opens freely about the legality of the testator’s orders, and, despite the witnessing, the will may be declared inauthentic by the court; what is not accepted for appearance may turn out to be subject to appearance by the court, and what is accepted may not be subject to appearance. In addition to the appearance of the will in court, in order to recognize its authenticity as a valid act, an appearance is also made for another purpose - for possession and for the collection of duties - a ritual that has been preserved, in a modified form, from the ancient order of appearance of fortresses. The duties must still be calculated and secured or collected; the person to whom the property is transferred by will must be authorized to take possession in a legal manner. Moreover, the will must be given all the publicity required by law so that anyone who has the right can present his dispute if he wishes. According to the law, serfs are not excluded from this ritual, except for the wills of households and serfs: the latter, although they were already presented in authenticity during the life of the testator, after his death are presented to the court for the final appearance (Article 1060, note) 92 . The judicial place was given the responsibility (Uk. Sep. November 19, 1836 in additional volumes of P.S.Z. 9718 a) upon witnessing the will, immediately calculate the following amount of duties in order to collect them in due time upon taking possession of the estate, and inform where it is necessary to monitor the execution of testamentary orders made in favor of charitable institutions (1090, 1091 of the Law. Gr.). According to the generally accepted procedure, the court, having completed the entire ceremony of appearance, informs the subject places about the entry into possession under the will, or about the transfer to whom the bequeathed property and capital should be, and makes an order for printing in the statements of announcements about the will. Wills are submitted for appearance by those in whose hands they are, or sent from the institution where they are deposited. But for this there is a deadline, from the date of death of the testator - one year for those staying in Russia (presumably, the custodians of the will) and two years for those abroad (hence, along with the will it is necessary to present a certificate of the day of death of the testator). With the expiration of this period, the wills are recognized as invalid (wakf testamentary acts in Crimea must be presented within 6 months). However, if the heir under the will can present irrefutable evidence that the deadline has been missed for a legal reason beyond his control, then he is left with the right to sue under this will during the zemstvo prescription, from the day of the testator’s death (Articles 1062–1066 of the Law. Citizen); therefore, according to such an act, the heir brings a claim for the estate against the person who is in possession of the estate, and is obliged to prove the validity of the will and his right under it, regardless of appearance, because the law does not say that such wills are directly accepted for appearance. The wills of persons deprived of all rights of the estate (drawn up before the announcement of the verdict) may be submitted for appearance in order to assign them executory force upon the entry into force of the verdict of deprivation of rights. This follows from considerations from Art. 1222. Law. Citizen and from the legal analogy of inheritance by law with inheritance by will. From what time should the period for the appearance of the will be calculated? It must be assumed that from the time the sentence was announced to the convicted person; but, it seems, justice would require in this case to allow an interpretation of this period that is broader than the interpretation of the period after physical death. In practice, I am not aware of a single case of application of a one-year period to cases of this kind. Wills drawn up by persons who are in unknown absence should be judged in the same way as the opening of an inheritance after them. See § 38 above. For these issues, see Legal. Vestn. 1872, No. 3. If a will is found during the inventory of the estate of the deceased, then it is given to the person in whose favor it was made, and if that person is not there, then it is sent to the public office, which, having recorded the will with the serfs, calls the heir according to it through the statements (Zak. Gr., art. 1227, adj., art. 5). For areas where new judicial institutions have been introduced in full, new rules for appearance have been established, which is generally called appearance for execution. Both notarial (in the extract) and domestic wills are submitted for this purpose to the district court, either at the location of the bequeathed property (cf. 212, 215, 219, Art. Establishment of the Civil Court), or at the place of residence of the testator (foreign wills - at the last place of residence of the testator in Russia 93). If the will is sent to the court by appointment of the testator or by order of those who made the inventory in which it was found, then the court proceeds to approve it without any special request. The will is approved at a court hearing. In support of a household will, witnesses are questioned, without an oath, to the effect that the will was presented to them by the testator himself, whom each of them personally saw and found to be of sound mind and good memory (some modification of the formula 1050 of Art. Civil Code). The death of witnesses does not prevent the approval of the will if its invalidity cannot be proven by the person bringing the dispute (change approx. 1052 art. Zach. Citizen). The right of the court to enter into verification of legality is defined more precisely than before: the court, without expecting disputes, rejects the wills of persons who do not have the right to testate, and testamentary dispositions in favor of persons who are not capable of accepting what is bequeathed, if both are clear from the will; Apart from these items, the court, without dispute, does not enter into the consideration of orders and monitors only the protection of forms. An inscription about approval or non-approval is made on the will itself. Private complaints against the refusal to approve a will are allowed, but against acceptance for approval, they are allowed only in the case where there is no defendant in mind. A ruling on this subject, in any case, does not have the force of a court decision, because after it a lawsuit is still possible for the approval or destruction of the will. A publication about the approval of the will is published in Senate announcements (Law. Civil., Art. 1052, 1060–106614). A. The cassation decision of 1873, No. 1687 recognized that the procedure specified in the rules of 1869 for appealing rulings of district courts and filing claims to invalidate wills does not apply to those wills, the procedure for the appearance and execution of which was already appealed according to the rules that previously existed. According to Davydovsky’s will, a private complaint had already been submitted to the Senate for acceptance by the Chamber and resolved; therefore, it is recognized that the petitioner no longer has the right to bring a claim in the district court for the destruction of the subsequent and confirmed appearance of the will, but can only challenge on the merits the legality of the testator’s orders. B. The form of the will is strict. Compliance with the forms prescribed for drawing up a will is necessary to recognize its authenticity. The authenticity of the will is inseparable from the form, and the former cannot be proven independently of the latter. Thus, if, due to the lack of witnesses to the will or the lack of certainty in their testimony, someone proposed to prove the authenticity of the will through an inquiry or by comparing the testator’s signature with the signature on other acts, such a proposal should not be accepted in court (cf. Sen. decision in the Journal of the Ministry of Justice 1859, October, p. 36). Having laid down in the law detailed rules on the formalities of wills, should, in case of violation of any of these formalities, the deed be refused, or is it left to the discretion of the court to determine which violation in a given case, subject to all other rules and there being no doubt about the authenticity, appears to be immaterial? It is quite difficult to answer this question, in view of the strict form assigned by law to a will, and without bearing in mind the legal distinction between the essential and the inessential in formalities. However, it cannot be denied that the law does not understand and emphasize all the details of the form equally, and there are decisions of the legislative branch that establish differences in the meaning of these details. Thus, in the case of Stogov (Journal of the Min. Just. 1860, No. 12), the State Council recognized it as possible to accept for appearance a will in which the signature of the testator and namesake of the testator does not indicate her first name, patronymic and surname, and she is named only as the testator, and it is not explained whether the assault was committed due to inability to read or write, or due to illness. It is accepted that, subject to all other formalities, the indicated omissions do not give the slightest reason to assume a forgery and do not leave doubt about the identity of the person. However, it is very dangerous to generalize the considerations expressed in this decision, especially since it takes into account the content of the will itself, which corresponds to the general goal of the legislation regarding the protection of the integrity of family estates. There may be cases in which it is completely obvious (not allowing a contrary assumption) that, although the form is violated, compliance with that essential rule that the law protects with a strict form. Nevertheless, it is difficult to expect from a court that applies laws in the literal sense that an act, with full conviction of its authenticity, will be upheld, regardless of the violation of the form. Such judgments proceed for the most part from the Council of State, which enjoys greater freedom in reasoning about the meaning and purpose of the law and about its application to individual cases. Of similar cases, we point out, for example, the following. In St. Petersburg, after the death of a merchant who had arrived from Irkutsk, while protecting his property, a will was found and sealed by a bailiff, written on two sheets, of which on the last one the signatures of witnesses were placed, without a staple on the sheets. This defect constitutes a significant violation of the form, but due to the circumstances it is impossible to doubt the authenticity of the deed and the signatures relating to it, since all of them were made by well-known persons living in Irkutsk, and the identity of the deed is not subject to doubt, since it will be found officially in the property of the testator immediately after his death. In the same vein, there may be many cases of obvious violation of the form, in which, despite the violation, perhaps, regardless of the form, the authenticity of the circumstance for which the form was established is proven. For example, a copyist who was not named in the will died without appearing for interrogation, but there are documents from which it is undoubtedly clear that it was he who rewrote the will, subject to all the conditions under which the assistance of a copyist is assumed to be legal. In 106611 art. Zach. Citizen it is said: the refusal of the district court or the judicial chamber to accept the will for appearance does not deprive the right to ask for judicial approval of the will. The question is: when considering a claim brought on this basis, does the court, on the basis of the said article, have the right to recognize the will as genuine and valid, despite the violation of the form, when it is satisfied that the violation of one or another form, in this case, according to the circumstances of the case, does not exclude the authenticity of the will. It is hardly possible to answer this question in the affirmative solely on the basis of the above article. The direct meaning of this article is only that after consideration of the will, for its appearance in unilateral proceedings, in an indisputable or protective manner, it is also given the opportunity to consider it in adversarial proceedings, i.e. after hearing the explanations and opinions of both sides, the same issue that was resolved in person, i.e. the question of compliance with the form or the recognition of one or another formality as essential and unconditional, one or another violation as significant. But in order for the court to have the freedom in this case to overstep the form, i.e. recognizing the form as substantially violated, at the same time, due to the special circumstances of the case, recognizing the violation as having no significance - this requires a clear, positive authority, which is Art. 1066. does not give either in its literal meaning or in relation to other articles of Zak. Citizen Our law makes the authenticity of a will directly dependent on the total compliance with all established formalities, when they are essential, and leaves no room for the discretion of the judge in assessing the value of one or another essential formality, according to the circumstances of the case. An example of a possible discussion is the following case. After the death of Kurnakov, a will was found in which a capital of 60,000 rubles was denied to a third party, to the detriment of the testator’s brother. Upon presentation of the act, following the death of the testator, to the Military Civil. The court sent him from the court to the detective authorities (on the Don) for questioning witnesses. Then, when the will returned to the City. The court, it turned out to be an erasure in the most significant speech: in the meaning of the number of refusal: sixty. Some members of the Citizens The courts showed that when the will was initially presented, no erasure was noticed in it, but some members of the detective authorities testified that upon sending the will from the Citizens. The court, when the envelope itself was opened, an erasure was noticed in the act. Under such circumstances, even if it were possible to admit that the will, in its original form, was without erasures, it still turned out to be impossible to determine with certainty what amount was listed in the unerased text: 60,000 or another. Behind the force of 1034 art. Zach. Citizen the safe place encountered difficulty in witnessing such a will regarding the said 60 thousand. But such a resolution does not exclude the possibility, during a judicial hearing of the case, to prove, based on the circumstances of the case and other documents, that the original text of the will was without erasures and that it contained precisely the amount of 60,000 rubles, and not less. In this case, the matter, one might say, is not so much about observing formalities as about restoring the original text. B. You can indicate cases of restoration of the one-year period for the appearance of a will. So, for example, in the village of Kotelnikova (decision 2 D. Sep. 11 Feb. 1870) it was accepted that a will presented as a serf’s will could not be approved in this capacity and returned to the petitioner, who still has the right by law to present it for appearance as a home will. Keeping a will. The will, both domestic and serf, is kept by the testator himself, or entrusted for safekeeping to another person, or submitted to the Board of Trustees, to the Trustee Committee of the Humane Society, or to a branch of the Office of the Council of the Humane Society. All these places accept wills for storage (only not from an unknown person) personally from the testators themselves or through a proxy. The Board of Trustees is authorized to accept wills upon demand for return or until the death of the testator. In accordance with the will of the donor, it is decided to either print the will when a copy of the public announcement at which the will was submitted is presented, or print it upon receipt of a reliable death certificate of the testator (but the will is issued to the testator himself or a person specially authorized by him upon simple request). In the latter case, the institutions that accepted the will send it on their own behalf to the appropriate court places for appearance or approval for execution (1013 note, appendix, art. 8; 1058, 1059, 1061 Gr. Zak.). When depositing wills, donations are usually made to the department; a rule has been established for the Guardian Council to collect twenty-five rubles from everyone depositing a spiritual will with the Council (Article 1059, note on the Prod. 1890). Wills are also accepted for storage in the State Bank, but the entry of the act into the Bank does not assign to it the special force that is assigned to Art. 1068. Zach. Civil, storage in other named institutions. Due to the fact that in some cases a will submitted to the Guardian Council is given special force, the consequence is sometimes drawn from this that a will submitted to the Council can be revoked in no other way than in the same way, i.e. introduction to the Council. A similar decision, later cancelled, was made in the Senate in the village of Lazarev-Stanishcheva. But such a conclusion is unfounded and arbitrarily goes beyond the limits of the law. The law indicates only 2 main forms in which a will arises as an act of will: serf (notarial) and domestic. Cancellation of a will is also carried out in the same forms. The submission of a previously drawn up act for safekeeping to the Council does not belong to the forms of drawing up a will and does not serve, in itself, either as an expression or as a consciousness of the last will, which, even without this entry, if expressed in the act, would have testamentary force. Regardless of the force of Art. 1043 and 1044 Zak. Gr. all kinds of wills can be deposited with a notary, on the basis of Articles 148–150, 152 and 153. Notary. Pos. Upon acceptance, the notary issues a receipt, and at the request of the depositor, he makes an act of acceptance of the document with the registration of the document or with a description of the sealed package. When accepting a will from the testator himself, the notary is obliged to verify his identity. The will is given back at the request of the testator, or a person authorized by him, or, if the testator designates when entering the act, it is handed over upon his death to whomever is appropriate for the purpose. On the basis of the consular charter (Articles 75 and 80), wills of Russian subjects abroad can be deposited in the archives of the consulate, which, upon the death of the testator, sends the will, or, if it is executed abroad, a copy of it, to Russia, to the Department of Internal Relations of the Ministry of Foreign Affairs. Regarding the wills left behind by criminals whose estates were confiscated during the rebellion of 1863, it was decided that they would not be accepted for liquidation unless they were revealed. Household wills on the transfer of family estate to the lifelong possession of the spouse, drawn up on the basis of Art. 1070 Citizen Laws remain in force if written in his own hand and entered by the testator where appropriate for storage (1868 Jan. 26 (45431) § 11). § 59. Special forms of wills. – Orders that have the form of testamentary orders. – A contract that is enforceable upon the death of one of the parties. – Questions and case studies Special forms of wills 1. Travel wills. During a campaign abroad, the wills of army personnel can be made, revealed and recorded in regimental and other military campaign offices. They receive the power of serfs, but can also be written on plain paper (1071, 911). 2. Sea wills. On a voyage, on a warship, or on a government ship, a will may be given for safekeeping to the captain of the ship or his senior officer, together with another officer or official; if it is drawn up with the knowledge of the said authorities, then it receives the power of a serf. On a merchant ship, wills can be given to the ship's scribe (clerk) together with the ship's captain, skipper, or his successor; given in front of 2 witnesses; signed by those to whom they are given (Articles 1072–1076). These rules are devoid of practical significance and unenforceable, because they were written, apparently, with the purpose of certifying a will, but talk about giving it for safekeeping, and, moreover, not to one, but to several persons, which is in reality impossible. This defect arises from the fact that the text of the articles is translated from French (Code C. 971), and very unskillfully, for the French word recevoir, meaning declarative or notarial acceptance, is translated with the words: given for safekeeping. In addition, the expression “with the knowledge”, due to its vagueness, also has no practical meaning. 3. Foreign wills. A Russian subject abroad can make a will according to the rites of the country where it will be written, with his appearance at the Russian mission or consulate (1077, 1078). The consular charter (Article 12, paragraph 4) indicates how and with what formalities a will is recorded in a special book, and how to indicate the external signs of a will in it. Wed. Institution Min. ed. 1892, Art. 830 et seq. By virtue of the consular convention between Russia and France of 1874 (P.S. Zak. N 53865), consuls are authorized to accept the wills of compatriots for appearance and execution, as notaries and on the basis of the laws of their country. From this, it seems to follow that the Russian consul in France can, on the same basis as a notary, give the will all the force determined by the notarial charter. Further (Article 9 Conv.) it is said that all such acts, as well as copies, extracts and translations, will have in each of both countries the same force and effect as if they were executed in one or another state by notaries, subject to the payment of the appropriate fees in the country of execution. In dec. General Collection Sep. 1868, according to the village of Saksa, it is explained that the appearance at the consulate of a home will drawn up abroad should not be considered mandatory, since without a direct definition of the law there is no reason to deprive a Russian subject abroad of the rights that he enjoys in Russia; in Russia, household wills are made upon the death of the testator. In the same decision there is a reference to the certificate of the Ministry of Foreign Affairs. Cases that household wills are in the mission for witnessing, and after the death of the testators, the heirs of the deceased. Testamentary acts regarding property are made according to the rites of the country where the act was drawn up, but the contents must be in accordance with the law of property. Sat. Sep. decide II, N 768. What should be the ritual of appearance at the Russian mission or consulate for wills drawn up by Russian subjects abroad? Should this appearance be considered mandatory in all cases? In order to assign the power of serfs to such wills, should this appearance be accompanied by rituals similar to those observed when making wills in Russia under the serf order? According to Art. 1077 of the Civil Laws, a Russian citizen abroad can make a spiritual will at home according to the rites of the country where it will be written, with the proper appearance of it at the Russian mission or consulate. The next article stipulates that the appearance at the Russian mission or consulate of spiritual wills made abroad replaces the execution of spiritual wills at serf affairs, or at notaries, and these wills, if they are presented in the established manner at the mission or consulate, are recognized in the force of serfdom. Both of these articles are not taken from the same position. The first rule is taken from the provisions on spiritual wills of 1831. The latter is extracted from the opinion of the State Court. Council held in 1838 on a special issue. Both of them do not refer to the same case. The first article speaks exclusively about household wills, meaning this word not in the formal sense assigned to it by Russian civil laws, but in the general sense. Here, a home will generally means a will drawn up at home, without any participation of public authority, without any announcement before a public official or government office. This article necessarily assumes in the legislation of the country in which the will was drawn up, the existence of a form of home will. Where such a form is allowed, a Russian subject can use it; but in order to give this home will the force of an act recognized by Russian law, he is obliged to present it at the Russian consulate. On the contrary, where local law does not allow the drawing up of household wills, but requires that every expression of the will in the event of death be in the form of a public act drawn up with the participation of a public person or public office, the application of the above article may not take place, since it only refers to household wills. In this latter case, the will, announced publicly according to the rites of the country where it was made, should be considered for this one reason alone to be reliable in authenticity, and its appearance at the Russian mission or consulate, according to the literal meaning of the law, may not be considered obligatory. A public will, which has not been presented abroad to a consul, for this reason alone cannot be considered invalid as a will. Shouldn't it be considered invalid for non-compliance with the rule established not for wills in particular, but in general for acts performed by Russian subjects abroad? By force 914 art. Zach. Citizen and art. 2, 16, 18 Set. Consular acts of persons staying abroad are approved by the seal and seal of the Russian consuls, with a penalty in favor of their collection. From the consideration of the articles (911–916) of the chapter in which the cited Article 914 is placed, it follows that they established the rules for the independent, and not additional appearance of acts committed by Russian subjects abroad and which should receive legal force in Russia: here an independent rite is established, and not in addition to the rite established by the laws of the country where the act was committed. The rule of the consular charter of 1820 related to this subject (2036 art. Statute of Trade ed. 1857) speaks of the consul’s approval of all documents, commercial certificates, letters of trust and other papers issued in the marinas of his district 94, therefore, he means mutual acts issued by one person to another during life, and not committed in case of death. “In relation to spiritual wills,” adds the cited article, “special rules are established in the Civil Laws,” therefore these rules should in this case serve as exclusive guidance. So, in our opinion, the appearance at the consul of wills drawn up by Russian subjects in the form of household deeds, according to the ritual of the country where they are located, is absolutely obligatory, and such a will, if it was not presented to the consul, should be considered uncertified in authenticity, therefore, invalid. On the contrary, a will made abroad according to local rites, in the form of a public act, should in no way lose its validity in Russia simply because it was not presented to the consul. If it extends to real estate located in Russia, then, like all acts of this kind, it is subject to mandatory appearance in a Russian court upon sending to Russia, within a six-month period (Article 915 of the Civil Law). But such a will, although according to foreign laws it is considered a public act, in Russia will have the force of a home will, not a serf will, and should be considered invalid in all those cases in which Russian laws require that the expression of the last will be clothed in the form of a serfdom, for example, in the case of a testamentary disposition of a family estate made by a childless owner (Article 1068 of the Law. Citizen). Article 1078 applies especially to such cases. Zach. Citizen By the force of this law, the will of a Russian subject abroad is only recognized in Russia as a serf in this case if it was presented at a mission or consulate. The above considerations and the ritual of appearance itself can be explained by the following examples. 1. Russian subject Peter Neidgardt, who lived in Aachen, made a will in favor of his brother for a real estate estate in Russia. He wrote this will all in his own hand, without witnesses, but in front of a notary, and confirmed it with his own assault. Four inscriptions were made on the will: the first - by a Prussian notary, to certify the identity of the testator and the authenticity of the act; the second - by the President of the Aachen Landsgericht, to certify the signature of a notary; the third - by the Prussian resident in Frankfurt, with confirmation of the signature of the president, and the fourth - by the Russian mission in Frankfurt - as evidence of the authenticity of the Prussian embassy. In this form, the will, upon the death of the testator, was submitted to appear in Russia at the Civil Chamber. Also presented here is an official certificate from the prosecutor of the Aachen Landsgericht, stating that the will in its form fully complies with the laws in force in Aachen. In the Chamber, another brother of the testator brought a dispute against the act. The disputant proves, firstly, that the will was not drawn up in accordance with the rules of the French civil code in force in the Prussian Rhine provinces. It is not domestic, because it was drawn up in the presence of a notary, but it does not comply with the rite for public wills, which must be drawn up in the presence of two notaries with two or one notary with four witnesses; secondly, if the will was recognized as being in agreement with French laws, then the testator should have made his appearance at the Russian mission in person, so that it could receive the power of a serf in Russia, and he sent the will to appear at the mission in absentia. The law requires that the will be presented at the mission in the prescribed manner, after which the power of a serf is assigned to it. The law does not explain what the procedure for appearance is; but if we take into account that our missions and consulates, upon the appearance of foreign wills, replace those specified in Art. 1013. Zach. Citizen (ed. 1857) judicial places in which serf wills are filed in Russia, it follows that during this appearance by consulates and missions the same procedure must be observed as is generally established for serf wills 1036–1041 Art. Zach. Citizen (ed. 1857). The first objection to the certification of the subject Prussian authority cannot have any force. The will of Peter N. in its form belongs to the category of holographic, and in force 970 art. French Civil Code, could be drawn up without witnesses or a notary at all, if it was written from beginning to end by the testator himself and signed by him personally. The notary’s signature serves as even greater evidence of the authenticity of the testator’s signature. The second objection, although at first glance might lead an inexperienced judge into doubt, in fact has no basis. The law does not really mean in what order and manner the appearance of wills, which should have the force of serfs, should be made before the consuls. It is obvious, however, that he does not demand, and for his purpose could not demand, that this appearance be accompanied by the consuls with the same rituals that are observed in Russia when the appearance of serf wills. The requirement of such rituals would clearly violate the rule on drawing up wills according to the laws of the country where they are written, and at Russian missions and consulates the same establishment of serf affairs would be assumed as in Russia exists at judicial places: if the testator had to appear in person at the consulate and confirm the authenticity of the will by interrogation, then what would be the benefit of a mitigating permission to be guided by a local ritual? The testator, if due to illness or other reasons he could not personally appear at the place where the Russian mission is located, would not have the opportunity to assign legal force to his will. What should be the procedure for presenting foreign wills at a mission or consulate? Obviously, not in fulfilling all those formalities that are established for the appearance of wills in serf affairs in the Empire, but in certifying with a seal and seal the signature of the testator, or those local authorities by whom this signature had already been certified, and in a note in the book in the original, word by word, of genuine wills, as well as packages with sealed wills. In this case, special protocols may be drawn up by consuls (See Consular Charter of 1858 § 12). From the new consular charter it is clear that wills can be delivered to the consul not in person, for the above § says that when recording in the book, the exact order in which the wills were presented is indicated, i.e. personally, or sent, from whom exactly, when, in what way, etc.” If we recognize that the appearance of wills before the consuls should be understandable in the general sense of the word and is not subject to those rituals and formalities that are established for the appearance of wills in Russia for serfs, then it follows that a will can be presented before the consul even after the death of the testator, as long as there is no doubt about its authenticity, and in this case it also receives the full force of a serf, although according to Russian laws the appearance a serf will can only be made during the life of the testator and must be made by him personally (decision of the Moscow General Assembly of 1854). 2. The Russian subject Ivan Pistoli, who lived in Piraeus, drew up, according to the Greek rite, a will, by which he allocated capital stored in one of the Moscow trading houses for the establishment of a school in Thessaly, his homeland; He entrusted the execution of this order to the elected executor. This will was written, according to the testator, by a notary, a peace judge of Piraeus, under his seal, signed by the testator and witnesses and left in the custody of the notary, sealed. Upon the death of the testator, it was presented by the notary to the Athens court, where it was printed, read in full presence during a public meeting and sent back to the notary for archival storage. A copy of it, certified by a peace judge - a notary, with his signature certified by the chairman of the Athens court, was given to the executor, who brought it into the office of the Russian consulate, and the consulate, having confirmed it, gave another copy of the will to him back. Following this, the testator's nephew George P filed a first-degree dispute against the will in the Athens Court, but this dispute, regarding the formality of the act, was finally rejected by the Athens Court of Appeal. Then Georgy P turned to Russian government officials with evidence of the illegality of the act. When the executor, on the basis of a copy of the will, turned to the right person in Russia, demanding the issuance of capital, Georgy P filed a dispute against this demand, proving that his uncle’s will was invalid both under Greek and Russian laws. If the plaintiff reasoned this way, it fully complied with all the rules of the Greek rite, then, according to Russian law, the testator himself, during his lifetime, certainly should have presented it in the Russian consulate in the original, and moreover, in compliance with the same ritual that is established for the appearance of serf wills. In its present form, it cannot be considered revealed, since the original will was not at the consulate at all, and its authenticity remained uncertified by the proper authority: the executor, after the death of the testator, presented to the consulate only a copy, which, in the absence of a genuine act, cannot replace it in any way, and should not have any effect in Russia. There is no genuine will, duly attested; therefore, there can be no execution under the will. The Russian court cannot, of course, take upon itself the resolution of the question of whether Ivan P.’s will was correctly drawn up according to Greek laws: this question has already been finally resolved by the Athens court, and therefore there is no doubt that the form of the disputed will fully complies with the requirements of Greek law. But, according to the circumstances of the case and Russian law, for a correct discussion of the arguments of the disputant, it is necessary to know the meaning of the formalities required by the Greek rite from a will, and it is necessary to determine in what sense the Greek law understands a copy of a spiritual will, and whether it was possible to require the appearance of this act at the consulate in the original. According to the Greek rite, the official participation in the preparation of spiritual wills belongs to the notary. For this purpose, he appears, by invitation, at the testator’s house or receives him in his court of peace (since in Greece the title of notary is combined for the most part with the position of a peace judge), draws up and writes a will, setting out in detail the place where and the circumstances under which it was drawn up, the situation in which he found the testator, and everything that the testator announced to him himself and when questioned about his last will. The notary himself testifies to the sound mind of the testator; certification of witnesses about this subject is not necessary: ​​they are only present at the announcement of the last will, pledging before that with an oath that they will keep secret everything that they hear from the testator. The written will is signed by the testator, the notary and witnesses, then the notary seals it in a special envelope with the royal seal and brings it in this form for safekeeping in his archive, which also serves as the archive of the peace judge. It remains here forever, and should not be given out to anyone from the archive in the original. Having received notice of the death of the testator, the notary presents the package with the will to the court, where it is publicly printed, read and returned to the notary with an order to keep the original in his archive, and to give to interested parties copies, which should serve as a perfect replacement for the original. Thus, the executor, having submitted a copy of Ivan Pistoli’s will to the Russian consulate, acted in accordance with the necessary conditions of the local law. Under these conditions, it would be impossible to oblige him to present the original, which should be kept forever in the broker's archive; It would be unfair to blame him for the omission of such an action, which did not depend at all on his will, and there is no legal reason to deprive such an act of legal force within Russia, which in the Greek kingdom has the value of an undoubted official act, and in general order was accepted as a note in the Russian consulate. The disputant’s objection that this appearance did not comply with Russian laws is completely unfounded. The forms and accessories of appearance are not determined by Art. 1077. Zach. Citizen The rule of this article applies especially to domestic wills of Russian subjects and provides them with the opportunity - by a domestic act, in the most foreign state, to appropriate the power of a serf. The will of Ivan Pistoli cannot be called a domestic act, in the sense assigned to this word by Russian laws (917, 921–923 Zak. Grazhd), since in addition to private individuals, a public person - a notary and a justice of the peace - participated in its drafting, in a solemn ceremony and in the presence of witnesses. After writing, it was taken by the notary for safekeeping, and upon the death of the testator it was announced in the presence of the court; therefore, during the life of the testator, this will was not subject to appearing at the Russian consulate and could not even be presented there at all, because, when drawn up, it was kept not in the hands of the testator, but in the hands of a notary, and could not be issued to anyone (cf. decision of the Moscow General Meeting for the village of Pistoli in 1858 and in the Journal of the Civil Law No. 3, article: On spiritual wills Russian citizens committed abroad). 4. Hospital wills. In military land and naval hospitals, home wills drawn up at the request of sick officers or lower ranks are considered valid if they are signed by the hospital chaplain, the doctor on duty and the officer on duty (from this it should be concluded that such a will may not be signed by the patient). Wills are drawn up in a similar way in other public hospitals: the place of the duty officer, where he is not present, is taken by the caretaker or the head of the hospital. The new charter of permanent military hospitals states that such wills, upon signing, are submitted to the hospital committee (P.S. Zak., N 47310, art. 258; 1081 art. and a note to it about a special formality for patients in the Kiev military hospital). Regarding hospital wills, the question arose: should the special ritual of drawing up these wills be considered unconditionally obligatory for them, or can wills be drawn up in a hospital according to the general ritual? This question was decided in the final sense by Moscow. General Collection Sep. according to the village of Zvereva, recognizing that the rules for drawing up hospital wills tend, on the one hand, to facilitate private individuals, and on the other, to eliminate any doubt about the authenticity of wills. 5. Widow's wills. Household wills of widows living in the St. Petersburg and Moscow widow's houses, and girls cared for in the St. Petersburg House of Charity for Noble Maidens, are recognized as valid if they are certified by the priest of the house, the caretaker and the doctor (Article 1082). 6. Peasant wills. HIGHLY APPROVED On March 9, 1866, the regulation of the main Peasant Committee (P.S.Z. N 43090) granted those wishing from rural residents who were in charge of peasant institutions the opportunity to witness their wills on real and movable property worth no more than 100 rubles. in the volost boards, to which they are subordinate. Such a will must be personally announced in words to the volost government in the presence of its members and 2 witnesses; it is recorded in the book of transactions and agreements, signed in it by the testator and the witnesses or executors for them and members of the volost board, and the testator is given an extract signed by the present members and sealed by the volost board. In the event of a dispute, this extract serves as judicial evidence of the will of the testator if it is recognized as valid, i.e. unforgivable (Vol. IX, Special App., I General Pol., Art. 91, note 1). For a similar rule for Cossack villages, see P.S.Z. 1870 May 13 N 48354, § 29. A special type of wills, which, however, according to the system of our Code of Laws, are not related to citizens. law, and for state institutions, they draw up wills of Members of the Imperial House. About these wills, see Vol. I ed. 1892, Basic. Zak., art. 169, 170. The word will means in the strict sense an act written in the form of a will. But there may be deeds drawn up during life and containing a gift disposition in the event of death. The law stipulates that deeds of gift, by means of which property should come into the possession of another not during the lifetime, but upon the death of the donor, belong in essence to testamentary acts (991 Art. Zak. Gr.), or in the essence of the gift, the entry into possession must follow immediately and cannot be delayed until the death of the donor. This article refers to deeds of gift, which are made on a real estate by serfdom, and Art. 991. makes it possible to accept such a record in the sense of a will and present it upon the death of the donor-testator for appearance for execution and for taking into possession. Questions and case studies A) Our legislation does not allow possibilities, codicils or additions and annexes to a will. Any addition must, in itself, have formal integrity, like a special testamentary act, although, containing additional instructions, it is subject to explanation and interpretation together with all previous wills that have not lost force. Therefore, a codicil to a will cannot have legal testamentary force, even if made by the hand of the testator himself, after the conclusion of the entire act, after all the signatures on it. In the same sense, one must understand registers and schedules of cash distributions, even if they were undoubted in authenticity and at least reference was made to them in the text of the will (cf. the decision in the Batashova case, Journal of the Min. Justice, August 1859, and Collection. Sen. decision vol. II, No. 749). So, if at his death someone left money in a sealed envelope with an inscription on the envelope to whom this money should be transferred upon death, and such an expression of will, with all its apparent certainty, would have to yield to the right of the heir by law or by will: it cannot replace a will in its strict form. It can be accepted in court only to confirm or prove the rights of the person indicated in the inscription, since these rights arise from other grounds, actions or obligations of the deceased, regardless of the testamentary purpose, or to clarify the rights of that person mentioned in the direct will, if these rights need clarification. B) At the General Meeting of the first three Departments, the case of the will of Mertens, made before the publication of the provisions, was considered. 1831, and about the addition to it, made in 1833. The Minister of Justice in the proposal, discussing this addition, destroyed it, because in the signature only the first and last name are stated, but there is no patronymic. A question arose in the State Council: if the addition to the will, due to the time of its execution and its external qualities, is not subject to discussion, on the same grounds and forms on which the will is discussed, and if this addition cannot be approved in its form, while the will is fully approved, then can at least that part of this addition, which consists of a necessary connection with the content of the will, remain in force? The State Council decided that it could, although this question was not categorically raised. The State Council found that in addition, in addition to the subject contained in 7 paragraphs. The will also contains instructions that were not mentioned at all in the said paragraph, and I found that these last instructions, as not constituting a direct consequence of the will, cannot be subject to joint approval with it in the form in which the additions were made. Therefore, the State Council decided: to testify the will and also to do the same with the addition, but so that its effect was allowed only in relation to the actual subject in connection with the will, namely in giving freedom to the people named in this act. What did the State Council mean by the words: the direct consequence of the connection cannot be explained without seeing the contents of the will. It could happen that the addition of 7 points served only as its repetition. Opinion of the State Council June 22, 1837, Complete. Collection Zach. N 10336. C) A receipt of this kind: “I, Ivan, being in a sick state, hereby declare that I owe Peter 100 rubles, which, in the event of my death, I ask to give to my brothers Semyon and Fyodor” - was refuted as an informal will, but the court did not recognize it as a will, because it does not contain a disposition of property, and the collection on it was imposed on the heirs of the deceased (Kassats decision. 1867 N 467). D) Before her death, Maiden Ostasheva, while living in a monastery, made an inscription on a loan letter that belonged to her that she was transferring the right under it to the monastery so that she and her mother could enjoy the interest during their lifetime; This inscription was revealed to the broker after Ostasheva’s death. It is recognized (Collection. Sen. decision vol. II, No. 160) that this inscription cannot be considered either a conveyance or a spiritual will. E) In the case of Malka Cherkes, the Senate recognized that if on the same sheet with the will another order is written separately, which has the property of a contract, then this circumstance in itself does not serve as an obstacle to the acceptance of the testamentary order for appearance, as long as it satisfies the requirements of the law in its form. Journal Min. Just. 1863, N 6. E) In the Mikhailovsky case (Collected Sen. Resolution vol. I, No. 233), it was recognized that his deed of gift, according to which he ceded the entire estate to his brother, leaving himself the lifelong use of it, essentially belongs to testamentary acts, and the entry under this record could not be made during the life of the donor. In the village of Pukarevs, a deed of gift was drawn up by Pukareva in favor of the Sobolev children, for the land, so that they would use the land after her death, and then, according to a household will, the donor gave the same land to her husband, saying that she was destroying the will. The Senate recognized the first entry into force of the serf will, which could only be destroyed by serfdom. According to the village of Shiraya (ibid. N 387), the Senate recognized that only the condition of the death of the donor himself has an impact on the recognition of the act as a gift in the event of death, or a will. Ulyana Shirai approved the estate forever and hereditarily to her children so that, due to their infancy, from this time (from the date of registration) her husband would own and dispose of this estate until his death, and the children would take possession of it only after the death of their father; therefore, the death of the donor does not have the slightest impact on the right of the children to take possession and dispose of the donated estate, and the deed is considered a gift. G) By the decision of the Senate, the certification of the serf will was refused, which, in addition to testamentary dispositions, also contains deeds of gift to be executed during life. Collection. Sep. decide Vol. II, No. 716. Regardless of the testamentary disposition, which has the direct purpose of transferring property to the appointed heir or successor, upon the death of the testator, such conditions for the property may be placed in contracts between the parties, by the joint action of the will, the execution of which is dependent on the will of one or the other party. The question arises: are such conditions legal if they involve the transfer of property belonging to one party, upon her death, to the other party, even if the purpose of this transfer was not gratuitous, but as a reward or payment for actions under the contract. There is a significant difference between a will and a contract in many respects and, among other things, in the following. The will itself serves as an act of transfer of patrimonial rights to property; is connected with the will and the succession of property is accomplished by it. The contract, on the contrary, establishes only an obligation to take a certain action regarding property; an obligation to transfer may be established, but the transfer itself is not performed. The transfer of property under a transaction is also carried out by the action of transfer, in which both parties participate. So, by the nature of the contract, it is impossible for him to make an irrevocable and obligatory transfer or transfer of property, as it is done through a will. If the agreement between Ivan and Peter had stipulated that Ivan undertakes to transfer certain property to Peter at a certain time, and Ivan had died before the deadline without completing this transfer, then Ivan’s heirs in this property, answering Peter for the consequences of failure to fulfill the obligation accepted by Ivan, could still refuse to transfer the property that Ivan had not yet transferred and to which, by succession after Ivan, the right of ownership passed on to them. On the contrary, if Ivan bequeathed certain property to Peter, it directly passes to Peter after Ivan’s death, by virtue of the will, and if this property, which became available after Ivan’s death, was to be accepted by Peter from the hands of his heirs, the heirs would not have the right - as long as the will remains in force - to hold it in their hands: by virtue of the wills it is not their property, but Peter’s. Reasoning in this sense, we come to the following conclusion. If a living person, by agreement with another person, has assumed an obligation and delayed its fulfillment until his death, this obligation, even after his death, as a general rule, remains in force and is binding on the heirs in its essence and in its value. The heirs are obliged to fulfill or satisfy for non-fulfillment. So, if the deceased accepted an obligation to transfer certain property, but the fulfillment (not completed during life - for in this case there would be a gift combined with immediate transfer) is postponed until death, then the transfer of property in kind cannot be unconditionally obligatory for the heirs. If the contract directly stipulates that such and such property, at least in the form of remuneration or payment, should pass into the ownership of such and such a person upon the death of the testator, such a transfer cannot occur by itself by virtue of the contract alone and can be rejected by the heirs as based on the contract and not on the will. They have no right to deny what constitutes the essence of the obligation, i.e. from remuneration to the extent of interest that the deceased assumed, but has the right not to obey what relates to the essence of the testamentary disposition, which in reality did not exist, i.e. from the transfer of patrimonial rights to property to a known person. Let’s imagine examples: Ivan, living in Peter’s house and supported by him, realizes that he must pay him 3,000 rubles for that. so that Peter receives this amount after his death, and Peter undertakes to support and feed him until his death. The heirs are obligated to pay this amount unconditionally, since it constitutes the obligation of the deceased. Ivan, renting an apartment in Peter's house, enters into a condition with Peter that for 10 years he will use the apartment, paying 100 rubles for each year, but is not obliged to pay for the apartment until his death, but after his death, all his movable property located in this apartment is left to Peter as full property, even if he died before 10 years; Until his death, Ivan undertakes to neither sell nor mortgage any of that movable property, and after his death, his heirs in other property and in monetary capital should not have claims to this movable property. After Ivan's death, the heirs do not allow Peter to take possession of the remaining movable property - and they are right. Ivan’s order regarding this movable property does not find a place in the series of legal actions. According to the deal with Peter, Ivan did not lose ownership of his things, because he did not transfer them to Ivan. He could have transferred them immediately by deed of gift, with an inventory, and given himself the right to lifelong use, and in this case the transfer would have followed the completion of the gift, but he did not do this. He could, recognizing himself as a debtor to Peter, give him all these things as collateral, and then the fate of the property and Peter’s satisfaction from it would be determined by the right of pledge. But he didn’t do even that. Consequently, he retained the ownership of his things until his death and, having established the transfer of things into the property of Peter, delayed this transfer until his death, but this transfer could have been accomplished directly from Ivan to Peter only through a will, which Ivan did not make, and retained the right of ownership to himself. It follows, firstly, that Ivan, even after completing the mentioned transaction, retains the full opportunity to bequeath to whomever he wants the very movable property that he undertook to transfer to Peter under the transaction: by this Ivan will violate the obligation he assumed, and Peter will be responsible for the violation; but in any case, while retaining the right of ownership of things and not limiting it even with a pledge, Ivan cannot be unconditionally deprived of the right to dispose of property. Secondly, if, after concluding a deal with Peter, Ivan during his lifetime complied with the obligation regarding his things, then, after Ivan’s death, despite the deal, the ownership of these things still passes by succession to Ivan’s heirs, and not to Peter, who does not have direct succession after Ivan and does not have the right to take direct possession of things after Ivan’s death. So, Ivan’s heirs may refuse to transfer these things to him in kind, although they are obliged to fulfill the obligation accepted by Ivan, i.e. reward Peter to the extent of this obligation (cf. another analysis of this case in the decision of the Senate on the village of Loshakova, Cass. decide 1869, N 1322). The essence of a will is that the order of the testator before his death does not acquire legal force for the person in whose favor it is made, that it is subject to execution only after the death of the testator and can be canceled by him at will, and that in its legal meaning it is not connected with any contractual agreement. Therefore, an agreement with another person drawn up in the interest of a third party cannot be included in the wills, even if the latter did not participate in that agreement and even if it was intended that this interest would be exercised only after the death or as a result of the death of the counterparty. Thus, one should not attach the significance of a will to an insurance policy under which the life of the policyholder is insured in favor of a third party, so that this person would be given the agreed amount upon the death of the policyholder or that urgent or lifetime payments would be made (cf. P.S. Law No. 45966, § 112–126). It is true that here, too, the assignment is fulfilled upon the death of the insured, but not according to the essence of a unilateral will, but according to a condition with the insurer, for the payment of the insurance premium: the death of the testator is one of the possible conditions, but not the only necessary condition of the insurance contract. True, here too the policyholder can cancel his appointment: for this he should stop paying the premium; but this will in essence be the termination of the contract with the insurer, in connection with which the interest of the third party in whose favor the will is made lies. Let us also note the following. In a will, death is not an accidental accessory to the act, not a condition of disposition, depending on the special direction of the will; it constitutes an essential property of the testamentary act. The whole order is designed for death and regardless of death it does not matter: this is the last will of a person. But regardless of this meaning of death as an essential and exclusive motive in a will, death, as an event, can have the meaning of a simple term, among all kinds of terms and events chosen by the will to self-determination and self-restraint in acts and transactions between the living. Death may be associated with a term clause in contracts, and the contract does not cease to be a contract and does not lose its force only because it considers the death of one or the other party to be the limit of one or another relationship established by the contract, if from the content of the contract it cannot be concluded that its essential purpose is a disposition in the event of death, and that, therefore, a will is hidden under the guise of a contract. From this point of view, Cass is hardly justified. decide 1872, N 980. In 1848, Maksimovich gave Marya Rudneva 5,000 rubles. against a mortgage, and on the same day a separate condition was made between them, by virtue of which Rudneva was allowed to deposit this amount into the bank in favor of her pupil Natalya; in the event of Natalya’s death, give this amount to her children, and if she is childless, return only 1000 rubles from the borrowed amount to Maksimovich; If, before this is fulfilled, Maksimovich himself dies, then the mortgage is considered void, and his heirs have no right to collect on it. Maksimovich died in 1850, and his daughter filed a claim on the mortgage against Rudneva’s heirs, who objected to the above-mentioned condition. The Senate rejects this objection for these reasons. The heirs execute the contract of the deceased patrimonial owner by virtue of the general law of hereditary liability, and not by virtue of a special condition included in the contract in order to oblige them after the death of the counterparty himself: thus, the heirs can be obligated only through a will. The condition stipulated in the contract in the event of death cannot be fulfilled by the same person who decreed it, but requires fulfillment by the heirs; but for them it is obligatory only by will. Equally, a waiver of a right expressed in a contract can be legal only when it is made dependent on conditions that can occur only during the life of the counterparty, but not depending on his death. Against these arguments, first of all, it should be noted that according to the Rudnev agreement, actual performance was not required from his heirs, i.e. transfer of any part of the available inherited property into the possession of a third party; if Maksimovich mentioned in the condition that his heirs will not have the right to collect on the mortgage, then these words in his agreement do not have significant meaning and are completely superfluous, therefore, it is therefore inappropriate to base a discussion of the legal force of the agreement on these words. If these words had not been there, the essence of the condition would not have changed at all, and as soon as it became obligatory for Maksimovich himself, it thereby became obligatory for his heirs. The essence of the condition simply lies in the fact that Maksimovich, giving Rudneva money for the mortgage, provided himself (among other conditions) with only the lifelong right to collect the debt and security. Is it possible to allow a private person to be deprived of the right to lend money on such a condition, i.e. limit your personal demands within the limits of your life? This would mean restricting beyond measure and needlessly the legitimate free will of the contract. Death in this case is only a term by which the counterparty has limited its right to claim under the obligation. A case of this kind differs significantly from the above, in which Ivan transferred movable property to Peter in the event of his death. In this latter case, the subject of the agreement is Ivan’s real right to movable property, which did not cease to be his property until his death; therefore, he made an order regarding property in the event of his death. And in the present case of Rudneva, when Maksimovich had decided that in the event of death his right to foreclose on the mortgage would pass to a third party appointed by him, in such a case there would have been grounds to recognize the condition as illegal, because then the right to foreclose would be materialized and transferred, as an integral part of the inherited property, to the ownership of another, in the event of death. § 60. Cancellation of a will. – Examples and questions from practice The unconditional right of revocation is an essential feature of a will: it expresses the will in the event of death, subject to execution upon death, and therefore not bound by anything 95 . All wills, both serf and household wills, both in whole and in parts, can be changed, at the discretion of the testator, either by destruction or by drawing up a new will, canceling the old one. The subsequent order is in any case stronger than the previous one, but it is necessary that the subsequent will and in its form be as legal and genuine an expression of the will as the previous one. At the moment of the testator’s death, his serf will turns out to be stronger than his home will, since the former has already been revealed by the testator during his lifetime, and the latter is only subject to appearance. And therefore household wills can be revoked by both householders and serfs; but serfdom cannot be changed except by compiling something similar, i.e. serf will, or by submitting a request from the testator to destroy the will to the judicial place where it was made, or, if the testator is on a business trip or on a campaign, by reporting to his superiors about the cancellation of the will. If the serf will is destroyed by the testator himself during his lifetime, and after his death it turns out to be a home will, then the latter remains in force. Any cancellation, alteration or change in a will is subject to the same rules as the will itself, i.e. each individual disposition in the will, unless canceled or changed in another will that has equal force with the previous one, remains in force (Articles 1030, 1031). Cancellation or modification may be expressed directly or indirectly; a disposition concerning property in a previous will shall be considered invalid if a different disposition is made regarding the same property in a subsequent will. The provision on notarial wills confirms that a notarial will can only be amended by a similar will; but a new method is also indicated for the destruction of any will - through the execution of a notarial act on the destruction of it (Civil Law Art. 1030). Examples and questions from practice A) To destroy a serf will, is it sufficient to file a petition to the court, without interrogating the testator regarding this petition? Does the testator, after submitting such a request, have the right to recognize the will to which it relates as void? On January 5, A. made a spiritual will in court in serfdom in favor of B. - on May 10, he submitted to the same court through an attorney a request to destroy this will. The court, due to the petitioner’s illness, on May 11 ordered to interrogate him at home in confirmation of the submitted request. But on the same date, before the court resolution could be executed, the testator died, leaving behind a spiritual will, drawn up on the same date. Upon the appearance of this last will, B. proves that it cannot be considered valid, that the testator did not have the right to begin drawing it up at home until the first, serf will, was destroyed; and this latter was not yet legally destroyed during the life of the testator. The destruction of a home will can be carried out at any moment at the sole discretion of the testator; but a serf's will, an act requiring the testator's consciousness and appearance at the public place during the life of the testator, can be considered destroyed only from the time when the consent and resolution of the public place follows. This necessary condition was not fulfilled during A.’s life: therefore, at the moment of death, having announced only the will to destroy the serf’s will, A. could not yet consider it destroyed and did not have the right to draw up a new household will to destroy the serf. Moreover, a serf will is made upon interrogation (1038 Art. of the Law of Civil. Ed. 1857), therefore, an interrogation should also be made about its destruction, since according to the law (Articles 1030 and 1031) any cancellations, changes and alterations in the will are subject to the same rules in their preparation as the will itself. Such evidence cannot be considered solid. According to the law (Article 1030), a serf will can be changed in two ways: either by drawing up a new will, which has equal force with the previous one, or by asking for the destruction of the previous will to the judicial place where it was made. In the first case, when making a new will, of course, all the formalities that were observed when making the previous one and which constitute a necessary accessory to the serfdom rite under wills must be observed, i.e. the new deed must be presented by the testator in person and an examination must be made to him. Here the testator combines in one action the cancellation of his previous will and the announcement of his new will in the event of death. But in the second case, i.e. when the testator is concerned only with the destruction of his previous disposition, without at the same time declaring a new one, or wants to separate both of these actions, the law does not at all require him to comply with all those formalities that are established for making wills. The law recognizes it as necessary that the destruction of an act read out before the court should not occur silently, but with the knowledge of the same court, and therefore requires the testator to submit a petition to the court for the destruction of the will; therefore, by submitting this petition, the negative will of the testator is finally expressed, and everything that is necessary for the destruction of the will should be considered complete, unless there is reason to doubt the authenticity of the petition itself. The law is silent about special interrogation at the request; therefore, there is no reason to consider this formality necessary for the destruction of a will. The testator has no need at all to wait to see whether, and what kind of ruling, will be made in court at his request: this ruling may remain unknown to him, because the court acts here not as an authority resolving a dispute, but as a place that carries out non-disputed acts; upon acceptance of the petition, all that remains for him to do is to make an order to note, where appropriate, in the books, that such and such a will has been destroyed - an action belonging to the internal clerical rite. The court does not have the right to prohibit the petitioner from destroying the will; therefore, there can be no question of the court’s consent or disagreement to this destruction: the court’s job in this case is not to certify or approve the will of the testator, but only to accept it and note it. So, the testator, of course, has the right, after submitting a petition to the court, to recognize his previous serfdom will as void and begin to draw up a new one according to domestic procedures. Let us even assume that the court doubted the authenticity of the petition and found it necessary to take away the interrogation from the testator, but the testator died in the meantime. Should, for this reason alone, a household will drawn up after the filing of the petition be considered illegal? It shouldn't. Here the interrogation is presented not as a formality, absolutely necessary for the full legal expression of the will of the testator, but as one of the means of certification chosen by the court: the court only needs to certify the authenticity of the request, and no matter how this goal is achieved, as long as doubt is eliminated. It can also be eliminated after the death of the testator, through an inquiry. Even though such certification by the court of the authenticity of the will of the testator followed after his death, the moment of expression of this will will remain the same, namely the submission during his lifetime of a request to destroy the will. It is a different matter when this petition, when it was submitted, was not subject to acceptance due to any circumstances, for example, due to non-compliance with the form established for petitions. Then it is returned as invalid, and if the petitioner did not manage to replace it with a new one during his lifetime, then the will of the testator to destroy the will cannot be considered truly expressed, therefore, this will must remain in force (cf. J. M. Yu. 1859, November, p. 133; Sat. Sen. decision II, No. 1120). B) If the testator made, one after the other, two wills, of which the second canceled the first, then one cancellation, or invalidity, of the last will in itself should have the consequence of restoring the validity of the first? A. made a household will in 1830 for the acquired estate in favor of one person; then in 1842 he drew up another, to which he assigned the same estate in favor of another person. Upon the death of the testator, both wills were presented for appearance by the persons in whose hands they were kept. The last will, written in someone else's hand on several sheets, turned out to be unfastened and therefore could not be accepted for attendance. Should the first will, drawn up in the form, then be accepted into attendance? A household will can be destroyed by domestic law, i.e. or by destroying the deed itself, if it is in the hands of the testator, or by making another household will. If the first will has not been destroyed and exists, then in order to recognize it as destroyed by the will of the testator, it is necessary to have in mind another act that has the same meaning as the first - an act in which this negative will would be legally expressed. If there is no such act, then the existing will remains valid in the face of the law. In the above case there is no such act; the second will cannot have legal force, cannot serve as a legal certification of the will, because it is recognized as invalid and is not subject to appearance due to informality. The place of appearance has before it two acts, of which one cannot be taken into account, and the other represents all the qualities of a legal will; it does not have the right to compare both acts with each other in terms of their content and mutual relationship, it does not have the right to enter into the consideration of which of the two should receive legal force: such consideration is already a matter of court, and not of appearance. When appearing, each act is considered on its own, separately, and if drawn up in accordance with the form, if it satisfies all the requirements of the law, it must be testified without interruption. On this basis, A.’s second will will be left without certification, and the first will must be accepted for appearance. The orders placed in A.’s second will, without a doubt, cannot receive valid force in any case: the persons in whose favor it was drawn up irrevocably lose their rights based on it. But let us assume that the legal heir of the testator A., ​​deprived by the first will of any right to the acquired estate of the testator, wants to prove the invalidity of this will. In this case, can a second will, which does not have any testamentary force, be accepted in court in the form of written evidence that the testator has canceled his first will and destroyed his order on the acquired estate? It can't. 1) According to the law, there are only two ways to publicly cancel household wills: performing a notarial act or drawing up a new will (1030 Art. Civil Code), therefore, only another existing will can be accepted as proof of the cancellation of an existing will. For a testamentary disposition, the law has prescribed a certain form, so necessarily related to the content that no judicial evidence, either written or through witnesses, can replace this form. A letter, or testimony, can certify that the testator had the desire, expressed his intention to destroy his will, or replace it with another; but did he carry out this intention, did he express his will? A positive answer to these questions can only be given by a notarial act or an act clothed in the legal form of a will. 2) Only that will can be considered genuine which is shown where it should be and written down in a book; therefore, A.’s second will, which was not accepted for appearance, should not be considered a genuine expression of his will; But can such an act be accepted as evidence if it lacks an essential condition - authenticity? 3) Even if it were possible to prove A’s second will. his undoubted will to destroy the first will, then it would be completely impossible to distort the meaning of this will by interpreting it on the basis of the same act in favor of the legal heirs. Destroying your testamentary disposition and replacing it with another is not at all the same thing. Positive will is not at all the same as negative will. To say: “I don’t want this” does not mean to say: “I want this or that.” The will set forth in the second will cannot be divided into two independent parts: if here at one moment the intention was expressed to destroy the previous will not simply, but in order to declare a new one, then by separating one from the other, we would thereby arbitrarily interpret the whole intention. The entire will is declared invalid; therefore, the entire expression of the will of the testator disappears, and one part of it separately from the other cannot be restored. A. made a household will in January 1862 in favor of his youngest son. In September of the same year, he drew up a second will as a serf, with which he destroyed the first and assigned the same estate to his eldest son. A month later, in October, A. filed a request to the court to destroy this last will, without further explaining his will. Following this request, the court declared the last will void. Upon A.'s death, his first household will was presented for appearance. It turned out to be drawn up in accordance with the form and accepted for certificate. But in the dispute of the legal heir of A., during judicial consideration, the question arises: after the cancellation of the second, serf will of A., by which his first, home will was decisively destroyed, can the validity of this first will be renewed? The legal heir claims that the second will expresses the will of the testator - to destroy the first; this will has thereby already been carried out, which is expressed in an act publicly recognized and witnessed in court, therefore, this will has been completed, and the first will has then been destroyed unconditionally and irrevocably, as if it had never existed. It disappeared, and another act appeared in its place, independent of the first. Therefore, the first order could be called again, repeated only by the will of the testator, equally clearly expressed again; but the mere destruction of the second act had only a negative, destructive force: again it created nothing. The first will does not exist, there is no new disposition, therefore, a legal inheritance opens. It is impossible to agree with the heir in this case, for the same reasons as given in the previous example. A serf will, just like a home will, does not serve as an irrevocable expression of the will of the testator while he is alive. An act can be called accomplished when it is revealed in a public place during the life of the testator, but at the same time the will of the testator has not yet been completed, and the will during his lifetime could not yet receive executive force. Not a single order decreed in the will, not a single word placed in it, could acquire real meaning, could not turn into an indisputable fact as long as the testator was still alive: until his death, he still keeps his will to himself and, as a complete master, can change it. Here, just as in the previous example, the testator did not separate his negative will from his positive one, but expressed both in one act, in the will. He himself destroyed this act during his lifetime, therefore, the second will in its entirety disappeared as if it had never existed. There is nothing to prove that A. provides the estate to the eldest son, there is nothing to prove that the first household will, drawn up in favor of the younger son, was destroyed. If this will turned out to be available after the death of the testator, if the testator did not destroy it, then it is very natural to assume that A. himself wanted to restore his first will. This assumption is fully consistent with the law (Article 1030 of the Civil Code), which says: “if a notarial or serf will is destroyed by the testator himself during his lifetime, then his household will remaining after death, if drawn up correctly, remains in force.” Here the law does not distinguish when this household will was drawn up: before or after the serfdom, which was destroyed by the testator himself. It is a different matter if the will of the testator to destroy the first will and replace it with a new order was expressed in two separate acts: then each of them has independent significance, one serves as evidence of a negative will, the other - a positive will. For example, V. drew up a serf will, then submitted a request to have it destroyed, and then made a new will, but he also subsequently destroyed it. In this case, the first will, even if it turned out to be available after V.’s death, should be considered irretrievably destroyed (cf. decision of J. M. Yu. 1860, No. 11 and Sat. Sen. decision vol. I, No. 561). C) The will is incompatible with the condition binding the will, and therefore all such conditions and obligations placed in the will cannot violate or limit the fundamental right of the testator - to change his will during his lifetime; During the life of the testator, all such obligations cannot have any legal significance and do not provide any rights to those persons in whose interests they are decreed. The expression placed in the will: “I deprive myself of the right to cancel this order” does not constrain the testator in any way. If, for the cancellation of the order specified in the will, the testator imposed a penalty or fine on himself, on his estate or on his heirs, such a decision is powerless, because when the law denies the possibility of the violation itself, then recovery for the violation is impossible. If the testator created in the will the consciousness of duty or responsibility to another person, then such consciousness in itself, during the life of the testator, does not give this person the slightest right to claim, for it cannot be separated from the testamentary will, in its entirety, which comes into force only after the death of the testator; D) Speculation about cancellation, without a valid expression of the will to cancel, is not allowed. Thus, in one case, the disputant proved the revocation by the fact that, according to the contents of the will, it should be kept by the executor, but it turned out that it was not transferred to him (Sb. Sen. decision II, No. 991). In another case, they referred to witnesses to whom the testator, after drawing up the will, said that he had revoked it. § 61. Conditions for the validity of a will. – Necessary qualities for a testator and a beneficiary under a will The conditions required by law for the validity of a will apply either to the person of the testator or the successor under the will (personal), or to the bequeathed property (substantive); Accordingly, personal incapacity arises: 1) from the fact that the law prohibits some persons from having property or disposing of property during their lifetime, or in the event of death; regardless of all other conditions, recognizes certain persons as incapable of receiving property under a will; 2) the inability of the latter kind occurs from the fact that the law recognizes some property as not subject to will at all. First of all, the law requires that the testator be of sound mind and memory. Therefore, the wills of madmen and madmen are considered invalid when they are drawn up during insanity (Art. 1016, 1017). The state of insanity and insanity becomes known and is accompanied by a limitation of legal capacity when it is recognized by the competent authority, with the establishment of guardianship (374 Art. Gr. Z.). But regardless of this recognition, a disorder of mental abilities at the moment of drawing up a will can be certified and proven (either by the very content of the will, or by the circumstances of its preparation); and in this case, by the force of the cited articles, the will cannot be valid. But, on the other hand, from the same articles it follows that the will of a madman is allowed, even if he is recognized in this state and placed under guardianship, if it is possible to prove that at the moment of drawing up the act he was free from illness and was of sound mind and sound memory (Cass. decision 1878, No. 92). On the same basis, i.e. that a will must be drawn up in sound mind and sound memory, we also affirm the rule about the invalidity of wills of suicides. From the decree of 1766 (P.S.Z. N 12779) it is clear that suicide is recognized either as an act of crime or insanity, and the invalidity of the will of a suicide is in the first case a punishment for a crime, and in the latter it is recognized as an act of insane will. This rule is unconditional, but it is obviously unfair and extends beyond the purpose specified by law when applied to a will drawn up by a suicide not on the occasion of suicide (1017 Gr. Law; 1472 Code of Laws); therefore, in judicial practice (Cass. decisions of 1876, No. 92 and 1880, No. 276), only the wills of suicides are recognized as invalid, who took their own lives not in madness or unconsciousness. From the consideration of Art. 1016. from 381 and 76 art. adj. I to Art. 708 it follows that the wills of illiterate, mute and deaf-mute people who are completely unable to express their thoughts are also invalid. All spiritual wills can only be valid when they are drawn up by persons who, according to the laws, have the right to alienate their property. Therefore, the wills of: 1) minors under 20 years of age are invalid; This rule is accepted in the strict sense, i.e. It is not allowed in a will 96 to supplement the will of a minor with the will of the trustee; 2) people deprived of their rights by court when the verdict is announced to them. Before the verdict is announced, they are not deprived of the right, even while under arrest, to make household wills (Articles 1018–1020). In Article 1018, obviously, the law speaks exclusively about the personal (subjective) ability of the testator, about the ability that all persons who have full civil rights have, about the right to alienate property in general, and not in particular, about the right to alienate this or that property. Consideration Art. 1018 with 1019 shows that the general rule contained in the first has exactly the meaning that we attribute to it (therefore invalid, etc.). Minors, despite having full ownership rights to the estate, are recognized as personally unable to alienate any property; deprived states have no right to property at all, therefore, they cannot alienate anything. Here it is necessary to indicate the exact meaning of the law, because otherwise important confusion may arise. The expression: the right to alienate, if we attribute it not to the person of the testator, but especially to certain property, can mislead us. From this, someone else could, for example, conclude that only property that can be sold or mortgaged can be bequeathed, that prohibited property cannot be bequeathed, etc. But the transfer of rights by will, in addition to the general signs of alienation, has special ones that are unique to it. Both in essence of the act, which becomes valid only with the death of the testator, and in internal analogy with inheritance, a will differs from a simple alienation of property. By selling or mortgaging, I do not thereby transfer to the person of the buyer or pledgee the entire set of rights and obligations inseparably connected with the property being sold or pledged; Therefore, the law does not allow the sale of property that is prohibited. But I can bequeath such property, because my successor in ownership of the property is, after my death, the representative of my disappeared person, takes on all the rights that belonged to me and accepts all the responsibilities that lay on me regarding the bequeathed property: I disappear, and he appears in my place and is responsible for everything that I had to answer for in relation to this property. So, the above article of the law directly addresses the question not of whether this or that property can be alienated, but of whether this or that person has the right to alienate his property. These principles, as indisputable, are also accepted in judicial practice (See Cass. decision 1876, No. 302; 1878, No. 274). Not all persons who do not enjoy the freedom to enter into transactions regarding property without the consent of others are deprived of the right to make wills; Thus, those under guardianship for extravagance have the right to dispose of their property through a will without the consent of the guardians. Cass. decide 1876, N 389. In the Preobrazhensky case, the Senate (2nd Dt., decided on November 30, 1867) recognized the validity of the will drawn up in 1838, when the testator used full citizenship. rights, although it was submitted for certification after he was deprived of the rights of the estate. Those who have been tonsured into monasticism cannot be testators, as they have renounced the world and property. This rule is based on church decrees, which remain in force to this day in the Orthodox East, both for ordinary monks and for monastic authorities, whose property, upon death, passes into the monastic treasury. A deviation from this rule - regarding the authorities - was introduced by the Emperor. by decree of 1766 (P.S.Z. N 12577): an exception was made for them. A bishop, archimandrite and other monastic authorities can make wills about their movable private property, except for things belonging to the sacristy and used in the church, even if those things were arranged for their benefit. But regarding property (even private property) remaining after the death of abbots and abbess of cenobitic monasteries, in 1862 it was decided that in any case it is recognized as the property of the monastery (Articles 1025 and 1187). Persons in whose favor a testamentary disposition is made. For a testamentary disposition to be valid, it is necessary that the person in whose favor it is made be capable of acquiring by will. We can no longer talk about the inability of some persons to inherit by will, in the sense in which this concept was accepted in Roman law, for there the appointment of an heir was inseparably connected with the will, which we do not have. However, we also have decrees that exclude some persons from acquiring by will unconditionally or under certain conditions; but these restrictions more conveniently come down to the question of who and under what conditions cannot acquire by will. Other types of restrictions apply to property that is not subject to testamentary disposition: these restrictions are mostly conditional, i.e. do not apply to everyone, but only to some individuals. Who is considered incapable of acquiring by will. Our law does not express a general rule that all those deprived of the right to inherit by law cannot inherit by will; but this rule follows from considerations of the essence of testamentary transfer and the limitations of inheritance specified in Articles 1107 and 1109. Zach. Citizen and 28 tbsp. Lay down about punishment, and therefore neither persons deprived of the rights of the estate nor monastics can acquire by will: this is expressed in paragraphs 3 and 4 of Article 1067. Zach. Citizen Tonsured monks can acquire by will only icons, panagias, pectoral crosses and books of spiritual, moral and scientific content, and then exclusively from bishops and other monastic authorities who have testamentary rights (note to Article 1025). The heads of quarantine districts and in general employees in quarantine institutions, except for members of the quarantine council, cannot acquire under wills drawn up in quarantine by persons who endured quarantine (Ust. Medical, ed. 1892, art. 1009; art. 1067 clause 5, Law. Civil.). Not only individuals, but also legal entities, churches, monasteries, and various kinds of institutions can acquire by will; but the execution of such appointments is made dependent either on the permission of the subject authorities, or on the consent of the subject department to accept the donated (1067 Art. Items 2 and 6; 980 et seq. Art. I Part X Vol.). In any case, only legal entities whose legal existence is recognized by the government can be successors to an estate or a gift under a will. On this basis, for example, testamentary dispositions in favor of the Old Believer society, which was not recognized by the government, were destroyed (see Sat. Sen. Resolution II, No. 259). By the highest order of December 10, 1865, persons of Polish origin and Roman Catholic confession were prohibited from reacquiring landowners' estates in nine provinces of the Western Territory, in any other way, except by inheritance by law (Civil Law, Art. 698, note 2). From this it follows that persons of this category cannot acquire estates by will, since the testamentary disposition deviates from the general order of inheritance. Land plots purchased from the treasury by Russians in the Kingdom of Poland, on the basis of the Regulations. 1871, can only be bequeathed to persons of Russian origin (P.S.Z. N 49763, Art. 20). In one case, a doubt arose: when does the testator wish to exercise the right of Article 1068, i.e., being childless, to bequeath the family estate to one of the members of his family, bypassing the closest heirs? In one of these cases (in the village of Oginskoy), the Sovereign Emperor, according to a report from the chief commander of the region, deigned to allow the execution of such a will by serfdom so that in the future all such petitions would be submitted through the Minister of Justice at the Highest discretion. § 62. Internal conditions for the validity of testamentary dispositions The will, in its essence, is free and limitless, determines itself, is governed by itself. But as soon as it comes into contact with the outside world, it enters into a circle of rights and duties, where the law of legal necessity operates independently of it. Here, the property of rights and duties determines the attitude of the will to various objects. So, in order for the will to be realized in the reality of the legal world, it is necessary: ​​1) that it has the right to express itself regarding a given subject; 2) so that it itself is in a normal state and has the property of rationally free will. The right to own one’s property and transfer it to another generally belongs to the legal personality of a citizen. Therefore, everyone who is recognized as a person in the state and has the fullness of all the rights of his estate, has among them the right to alienate his property during his lifetime and the right to express his will about it in the event of death. Every citizen has this right until the contrary is declared, i.e. until he is recognized, in accordance with the established procedure, as deprived of general civil rights and state rights. So, the first condition for the validity of a will in relation to the person of the testator is the integrity of his rights in property. People deprived by a court of all civil rights, as soon as the verdict is announced, can no longer make wills. But, regardless of this purely legal ability of the testator, the law also requires from him an ability which, unlike the first, can be called factual. Despite the integrity of his general civil rights, his financial situation may be such that he is deprived of the ability to freely use these rights, to freely take advantage of them: in some cases, such an inability is directly assumed by law. So, the second condition for the validity of a will, in relation to the person of the testator, is such a state in which he is assumed to be able to freely and with reason express his last will. In order for a will to be valid, the combined effect of both abilities is necessary. The testator at this moment may be quite capable of expressing his will freely and with reasoning; but if he does not have full right to property, then his will, no matter how freely expressed, does not have an environment in which it could circulate and act, and therefore is invalid. The testator has full rights to the property; but if at a given moment his will is recognized as incapable of defining itself, incapable of relating freely and rationally to an object, then no matter how positively it is expressed, it cannot achieve anything and also does not achieve its goal. Ability, as a normal state, as a positive property, is generally assumed; inability, as an abnormal state, as a negative property and an exception to the general rule, must be discovered. Everyone is presumed to be capable of expressing their will through a will until the contrary is discovered. The ability to bequeath, on the one hand, corresponds, on the other, to the ability to acquire by will. Both can be unconditional or relative: unconditional when it does not depend on the mutual relations between the testator and the person in whose favor the order is made, relative when there is a necessary relationship between one and the other party. Persons who cannot dispose of any property for anyone's benefit or acquire anything from anyone under a will are considered unconditionally incapable. Others, on the contrary, although they generally have the right to bequeath or acquire what has been bequeathed to them, are deprived of this right only in relation to certain specific persons or property. Therefore, with the relative ability of one person to bequeath or acquire by will, another person is always assumed to be correspondingly incapable of acquiring or bequeathing. It does not follow from this, however (unless the law has declared positively) that a person who does not have the power to bequeath in favor of another cannot acquire from him by will, and vice versa, that someone who does not have the right to acquire by will from another cannot make a will in favor of the latter. The legal capacity of a testator depends on personal, temporary and accidental conditions and therefore can change over time and with changing circumstances: a capable person may become incapable, and an incapable person may subsequently acquire the ability. Meanwhile, in a will, the drafting of the act itself is not simultaneously with its entry into force. Therefore, the question of at what point in the testamentary process the legal capacity of the testator should coincide is of particular importance and requires consideration. The will expressed in the will is still subject to change as long as it can act freely; Only at the moment of the testator’s death does the will acquire the force of an irrevocable act. From this it is clear that in the testamentary process there are two decisive, absolutely necessary moments - the drawing up of a will and the death of the testator: in the first, the expression of the will is made, in the second, its goal is achieved, the transfer of rights is made, the acquisition of property by the chosen heir. It is obvious that in both cases the positive action of the will of the testator is equally necessary: ​​in order to achieve its goal, the will originally expressed by the testator must, without ceasing, retain its original character, be the same will. We mentioned above the difference between the legal capacity of the testator and his ability to will at a given moment. Let's see what significance this and that ability has at the various moments we have indicated. A person who does not have the right to own property and transfer it obviously does not have the right to make a will. So, when drawing up a will, a necessary condition is the fullness of the rights of the testator, his legal capacity. At the moment of death of the testator, his will is put into effect - the transfer of property from one person to another takes place. This transfer is possible only in the case when the person transferring has the right to transfer; therefore, even at the last minute - at the moment of perfection and transfer of rights - the testator must necessarily have the same legal capacity in relation to the property that he had when drawing up the will. On the other hand, a person who has the right to his property is considered incapable of disposing of it if his will is in a state that deprives it of freedom of reasoning. So, at the moment of drawing up the act, the will of the testator must necessarily be in sound condition. The will of the testator, having expressed itself in the first moment, has already done everything that depended on it - it has spoken out. The moment of its expression belongs to the past, its activation belongs to the future; but even remaining inactive for a time, it remains the same indispensable will, without losing its meaning at all. Having remained intact until the death of the testator, at this last minute it also does not change in its essence and is the same will, not at this moment, but before that and once expressed. So, it is enough if the testator at the moment of drawing up the will enjoyed complete free will and sound mind: no matter what changes occurred after that in his mental and emotional state, whatever it was at the moment of his death, his will, correctly expressed, must retain all its force (Cass. decision 1878, No. 92). Thus, the legal capacity of a person and the capacity of will must act jointly at the moment of making a will. The capacity of a person is necessary at the moment of death of the testator; but the ability of the will, once already expressed, does not constitute a necessary condition at this last moment. The middle space between the two moments of the testamentary process is not significant here. To better verify the validity of these provisions, let us imagine: First, a will made by a person who did not have the legal capacity to do so. Such a will is void from the very beginning and will remain void forever, even if the testator subsequently acquired a right that he did not have at the time of its preparation. So, for example, a will drawn up by a person deprived of all the rights of the estate is invalid, even if he was subsequently pardoned and restored to all his rights. Secondly, the will of a person who has rights, but does not have a will capable of free expression. It is also insignificant at the very beginning and cannot be restored. Thus, a will drawn up by a madman is considered forever void, even if the testator subsequently regains his sanity. Thirdly, the will of a person who had legal capacity at the time of its preparation, but did not have it at the time of death. In this case, the incompleteness of the rights of the dying person at the moment of his death prevents the transfer of property determined by the will from taking place. An example is the testamentum irritum of the Romans, when the testator, who was a legally capable person at the moment of drawing up the act, died a slave or in exile. In our legal life, it is difficult to imagine such a case, because political death, depriving a person of the rights of state, directly produces in us the same effect as natural death, i.e. in itself opens an inheritance after the convicted person. Fourthly, the will of a person who, at the time of its preparation, enjoyed free will, but was deprived of it at the moment of death (for example, died of insanity). It must be considered valid because the will, once correctly expressed, could only be changed by a free act of the same will. The person in whose favor the will is made must be capable of acquiring property under the will. At the first moment of the testamentary process, at the time of drawing up the will, this ability is not of significant importance and does not seem absolutely necessary. In fact, we know that a will has no force during the life of the testator, that by simply drawing up a will, the person in whose favor it is drawn up does not acquire absolutely any right to the bequeathed property and, in essence, does not take any part in its drawing up. The will itself, even if it did not remain a secret, even if its drafting was announced, does not have valid force before the law until the death of the testator. During the life of the testator, no public authority has the right to enter into discussions about the correctness of his orders, and no private person can challenge them. So, if a will at the moment of its preparation appears to be an act that does not have valid force, then there is no need to demand that at that moment the successor under the will is actually capable of acquiring the property bequeathed to him. There can be no talk of the ability to acquire at such a moment when there is no acquisition yet: at the moment of drawing up a will, the testator does not yet give, but declares only his will, the intention to give, but this will may not yet go into action at all until it is vested by an irrevocable act with the death of the testator. The moment of acquisition under a will in no case can occur before the death of the testator; therefore, from this moment only, the ability of the acquirer under a will seems to be a condition necessary for the validity of a testamentary disposition. There is no doubt that with the death of the testator, the right is opened for the person to whom the latter assigns the property; but this right is not revealed in all cases to the same completeness. Property can be bequeathed either unconditionally or under a condition. In the first case, with the death of the testator, the right granted by him to the chosen person is acquired in full: he can only take material possession of the bequeathed item; the internal, spiritual part of the acquired right no longer requires any addition. In the second case, with the death of the testator, only a conditional right opens: the right to receive the bequeathed item as soon as the condition is fulfilled or fulfilled. Here, the acquisition of the full right to a thing also depends on an external event: until this event occurs and the transfer of the right to property from the testator to the chosen successor is not recognized as completed: the right under the will has opened, but it remains to acquire the actual right to the bequeathed property. We pointed out above two main points in the testamentary process: expression of the will - drawing up a will and action of the will - transfer of rights, death of the testator. The question arises: in what relation to each of these moments does the ability to acquire by will consist? More clearly, should the successor to the will be able to acquire at the moment of drawing up the will, or is this ability required of him only at the moment of acquisition? There is no need to demand that at the first moment of the testamentary process, at the moment of drawing up the will, the successor under the will is able to acquire, for, as explained above, at this moment there is no acquisition yet. The testamentary disposition does not lose its force at the very beginning only because when the will was drawn up, the chosen person was incapable of making the acquisition: the effect of the will expressed in the will had not yet occurred; it is held until the death of the testator. If at this last minute the chosen person continues to be incapable, then only the order addressed to him can be declared invalid; if it has managed to become legally capable of acquisition before the moment when the will of the testator is acted upon and the right is transferred, then nothing prevents the will of the testator from being realized. It is true that at the first moment of its expression it met a person incapable, but was not reflected from him, but continued continuously until the death of the testator, and at the last moment of its expression it met this person capable of acquisition. Thus, a will drawn up in favor of a person deprived of all the rights of the estate or not yet conceived at the moment when the will was made can be valid if at the moment of the death of the testator this person is already conceived or restored to his civil rights 97. In decisions of 1869, No. 72 and 1882, No. 63, the Senate recognized that the ability to acquire property is required at the moment of acquisition, and since acquisition by a will at the moment of its preparation is impossible, there is no legal basis to require that at the very moment of drawing up the will, the person in whose favor it is written already has the proper ability to acquire the bequeathed property. According to the village of Osten-Sacken, the question arose: is it really, behind the force of 1028 and 1310 art. 1 part X volume (ed. 1857), will drawn up in 1858, since real estate. the estate was granted there to such persons whose ancestors were recorded there according to the audit. The Senate (2nd Div. 3D. May 14, 1868) reasoned that the transfer of rights under a will occurs no earlier than the death of the testator. The testator died, and the rights of the successors were opened no earlier than 1863, when the prohibition specified in Article 1310 had already been abolished, therefore, the order was not illegal. In 1857, Abramovich made a will through a notarial procedure, assigning estates in the Western Region to a person of Polish origin. At that time, this was still possible, but the testator died in 1867 without changing his will, and meanwhile in 1865 a well-known decree was issued on December 10, which ordered that all acts and transfers of similar estates to persons of Polish origin that were completed after that be considered invalid. The question has arisen: can Abramovich's will remain in force? The best thing to do is to decide that it cannot. Although the will was made in 1857, the act, by its nature, could not be recognized as a final, decisively and irrevocably completed act until the death of the testator. It had one personal meaning for the testator, but did not yet become a legal basis for rights for the persons in whose favor the estate was bequeathed. Therefore, the legal force of a will cannot in any way be assumed before the death of the testator, and at that moment, at least not earlier, the force of the law then in force must be applied to the contents of the will. In this sense, this case was resolved in the Senate and in the State Court. Council (Highly approved opinion of 1872). § 63. Subject of the will. – Contents of the will. – Discussion of the legality of orders by analogy with foreign institutions. – Will for the family estate The subject of a will can be any right to property that actually belongs to the testator, even if the property itself was not actually in the possession of the testator; therefore, the right to claim the property may be bequeathed. There are, however, rights of action which are so inextricably connected with a person that they cannot be the subject of a will. This is, for example, the right to a claim for inheritance, depending solely on personal, blood, family relationships; since this relationship cannot be transferred to a third party, and the right of action arising from it cannot be transferred. But when the testator’s inheritance rights to a certain estate have already been recognized and approved by the court, this estate, although it has not yet come into the actual possession of the heir, can be bequeathed to him, of course, within the limits in which hereditary estates are generally subject to bequest. It should be noted, however, that the inheritance, in essence, is transferred not through a lawsuit and a court verdict, but directly, and the entry of the heir into possession of the hereditary estate can be direct; those. if he enters into the estate on his own, without recourse to the assistance of the court, then this action in itself will not be an illegal action if the inheritance right of that person is undeniable; but from someone else's possession it is necessary to add hereditary property through an action. From this it follows to conclude that when the testator can call the property his own in his will, which he inherited, then he can bequeath it; If he cannot yet call the estate his own, but must first obtain it through a claim, he has no right to bequeath this claim, even if he himself has already brought it. A co-heir who has received an estate along with others, but is still in common possession with them, without division, is not prohibited from bequeathing his part, even if it has not yet been allocated in kind (546, 555 art. Law. Civil and decision. Cass. Dep. Sen. 1869, N 781). You can only bequeath your property, and the power of the will extends only to the property and rights that belonged to the testator at the moment of his death, but not to what, after his death, could have come to him by inheritance when he was alive (opinion. State Council on the Goloshchapov case. Journal of the Ministry of Justice 1862, No. 10.) In the Batashova case (Sb. Sen. decision vol. II, 749) it was recognized that it is possible to bequeath (conditionally) an estate that has not yet come into the possession of the testator, for example. the indicated part, for the allocation of which a petition has only been submitted. The car, having in temporary possession the mortgaged estate of Lutkovsky, bequeathed it to Sokolov with the understanding that if it was sold at public auction, then Sokolov should receive the money following the mortgage. Due to a dispute that arose that the Machine could not bequeath an estate that was not its property, the Senate (Sborn. Sen. Resolution vol. II. N 805) recognized the disposition as legal, for the Machine did not bequeath the estate itself, but only the right that inalienably belonged to it by deed, in the space in which it belonged to it. The property to be bequeathed and the persons to whom they are bequeathed must be clearly identified in the will (Article 1026). This rule means that the will of the testator regarding the person and property is unquestionable: in vain others interpret it in such a sense that the persons in whose favor the assignment is made must be named. So, the question of whether the will complies with this requirement of the law completely depends on the court, which, based on the circumstances of the case, can recognize the will of the testator regarding the person and the subject as doubtful. The same article stipulates that wills made with an obvious mistake in the person or property being bequeathed are invalid. According to the interpretation accepted in practice, this invalidity relates exclusively to the testamentary disposition in which such an error was made; but it does not follow from this that the entire will, the remaining parts of which, not having a necessary connection with the invalid disposition, fully satisfy the requirements of the law, should be destroyed. In the case of Gorbunova (Collected Sen. Resolution Vol. I, No. 518), allowing the executor to dispose of money at his own discretion was not recognized as a violation of Art. 1026. Davydov's will (ibid. No. 43) in favor of his named legal wife Ekaterina Antonova was destroyed as based on a forgery in the rank of a person, for it turned out that the said Ekaterina Antonova was not his legal wife, but someone else's wife. In the Kosovich case (Collected Sen. Resolution vol. II, No. 1110), it was recognized that ambiguity in the names of the persons named in the will relates more to its essence than to its form, and cannot destroy its full force. In the case of Serebryakova (Collected Sen. Resolution Vol. II, No. 972), the Senate invalidated the will, according to which, in the assignment of capital to the testator’s daughters, churches and monasteries, neither the amount nor the part of the capital was shown, but gaps were left for this purpose. In discussing the contents of wills, according to Russian law, it is necessary to abandon some concepts that are positively expressed in foreign law and are completely alien to Russian legislation. This is, for example, the concept of appointing an heir. It is connected with the basic idea of ​​a will, historically and dogmatically developed in Roman law and passed from there into Western legislation. In our country, the testamentary form, together with testamentary law, arose and was developed in addition to this idea: our will, in its fundamental meaning, is a spiritual memory - to whom to give what and from whom to take what, a dying act in which the owner, in the event of death, arranges his affairs and disposes of his property. A formal distinction between the appointment of an heir and individual refusals has never been established in our legislation. Therefore, we must be extremely careful in applying to our wills general concepts that arose in Roman and foreign legislation in connection with the integral establishment of a will and its civil idea. Our law of wills was not of one piece in origin. It was formed at different times from decrees issued for individual cases, and represents a set of forms and restrictions aimed at resolving difficulties encountered in practice, eliminating misunderstandings, and satisfying needs that were opening up at a given moment. The very provisions on wills of 1831 were compiled from a set of decrees issued up to that time. Therefore, it would be unfair and inconsistent with either the general rules of application of laws, or with the historical and practical significance of our law - in the interpretation and application of our regulations - to take as a guide the theory of testamentary law, established in the West, in its integral organic form, and to associate each form, each limitation of our positive law by analogy with integral categories of forms and restrictions developed from science and practice in foreign legislation. Each provision of our positive law must be accepted, as it appears in itself, in inseparable connection with the need from which it arose and with the purpose to which it is directed, as well as with the general spirit of our testamentary law. It would be extremely dangerous to go beyond these limits and transfer ideas and terms from foreign legislation into our practice. Without a doubt, in the relations arising from a will there are many concepts common to all everyday life and to all legislation, and the instructions of the general theory of testamentary law can also serve as beneficial for our practice and often serve as an inevitable guide. So, for example, one cannot help but recognize the significant analogy between testamentary and legal inheritance and, according to the instructions of this analogy, one cannot help but seek resolution of certain issues and misunderstandings regarding the accessories and consequences of a testamentary transfer; Despite the absence of a formal difference between the appointment of an heir and a refusal, one cannot help but recognize the fundamental legal difference between various types of appointments and the mutual relations of the persons in whose favor they are made, and to clarify this difference, and its logical, and therefore legal, consequences, it is necessary to turn to the analysis of relations and resort to the help of the general principles of the theory. But at the same time, it is necessary to distinguish the general and necessary from the particular and special, which is characteristic exclusively of an institution that is not accepted by us, and cannot be separated from it; to distinguish the logical conclusion from a necessary legal relationship, from a special prohibition or restriction that constitutes the property of a law alien to us and an alien household economy, from which this law has degenerated. Our law, like any other, presupposes, first of all, the freedom of testamentary will, the power of the testator to dispose of his property; but every law sets forth at the same time obligatory forms of expression of the last will and its legal restrictions. Among these restrictions, others stem from the essence of any act, from the essence of civil relations regarding property; others are inseparably connected with the particular idea of ​​will, expressed in this or that legislation, or with the whole institution of testamentary law, recognized and developed in detail on the basis of positive law, or with the special economic and political goals that this or that legislator had in mind for his people. Without a doubt, it would be unreasonable, based on the rationality of such restrictions, taken from someone else’s law, to expand the meaning of the restrictions that we find in our own positive law. For example, when discussing in Russian practice the appointment of an heir and its consequences, we run the risk of arbitrarily transferring into our practice ideas and assumptions that are in connection with an entire institution (institutio heredis), which we have never even mentioned in law. Applying to our practice the well-known rule issued in connection with the case of foreman Lopukhina (note to Art. 1011. Zak. Gr.), we can fall into error and overstep the meaning of our law if we attach this rule to the institution of substitution, which is also unknown to our legislation as a whole institution. Complete freedom to dispose of the estate is granted to the testator only in relation to the acquired property. The testator's patrimonial dispositions must not violate the general law of inheritance. You can bequeath acquired property either for full ownership, or for temporary possession and use (Article 1011). Family estates are not subject to will. There are only two exceptions to this rule: 1) An owner who has no descendants can provide his family estate, bypassing the closest heirs, to one of his relatives or relatives of the same family from which the testator inherited the estate; but the remaining spouse must in any case be given a seventh part of the entire family estate of the testator (this last right does not apply to the Chernigov and Poltava provinces), or in the corresponding amount a portion may instead be assigned, at the discretion of the testator, from both the family estate and the acquired estate (Article 1068. Journal. Soed. D. Gos. S. 1856). But wills of this kind, in order to gain force, must be made by serfdom or notarial order or deposited personally in the institutions specified in the law. 2) The family estate can be bequeathed for lifelong ownership to the spouse, in a similar form (see this book, Part I, § 62 and Art. 1070 of the Civil Code). This order is considered void if the spouses’ marriage is subsequently dissolved or declared invalid (Civil Law Art. 53313). Having left behind the family estate, the deceased owner can, in his will, designate cash payments from it in favor of third parties. Such an order in itself is not considered illegal, but does not have direct binding force for the heirs of the family estate: they can refuse to carry out such orders when they are associated with the loss of a greater or lesser part of the estate (Article 1086). A. From 1086 Art. It does not follow that any disposition of the family estate entrusted to the heirs in favor of a third party is invalid. The law only says that the heirs have the right to refuse it if it is associated with the loss of a larger or smaller part of the estate; therefore, the responsibility to prove that the disposition is associated with loss, etc., lies with the heirs. This circumstance significantly moderates the power of the prohibitory rule, because there are orders that are impossible or difficult to prove that they are connected with the loss of part of the estate: in this case, the orders will remain binding on the heirs. So, for example, if in the ancestral village the testator granted a third party to live in a separate house, use the forest for fuel, etc., then, depending on the economic situation of the estate (for example, the nature of its productivity, proximity or distance from the market, the state of prices, etc.), this disposition in another case will be associated with a decrease in value, in another case it will not. It should also be noted that the law speaks of the loss of part of the estate, and any establishment of use or service (servitude) in favor of a third party hardly fits this concept. There is no doubt that in each given case, the court, according to the circumstances of the case, has the right to finally decide what is associated with the loss and what does not indicate signs of loss. B. A family estate cannot be burdened with cash payments, but an acquired one can, but both estates are subject to liability in the person of the heirs for the debts of the deceased patrimonial estate. But it is the custom of testators, in order to strengthen the obligation of successors, to explain the payment of money assigned to outsiders by the consciousness of their own obligation to those persons to whom the payment is assigned (for example, to give such and such an amount that I borrowed from her or that I used from her money for a purchase, for the organization of an estate, etc.). The question arises: if the distribution prescribed in the will is not obligatory for the heirs, as a gift order, should it not be recognized as mandatory as the fulfillment of a duty recognized by the testator? Judicial practice has decided that in such cases, i.e. when the issuance is attributed to the family estate, the personal consciousness of the debt in the will does not replace the debt obligation in itself, unless it exists separately and is not certified separately from the will by acts or other evidence (cf. decision of the Moscow General Meeting of 1854 according to No. Aigustova and Malevinskaya; decision for the village of Zinoviev. Collection. Sep. decide vol. I, N 367). On the contrary, when such a consciousness of duty explains the purpose of the distribution from the acquired estate, no special evidence of the debt is required, because without an explanation of the debt, it is sufficient to express the will of the testator for the payment of money, which in any case is obligatory for the successors of the acquired estate (cf. the decision of the Moscow General Meeting of 1883 in the case of Naumova and Kikin). Reserved hereditary estates and estates granted by right of primacy in the western provinces are not subject to wills, contrary to the rules established for the transfer of these estates by inheritance. The owner (or possessor) of a reserved estate, in order to ensure the fate of his wife (or husband) and children who do not inherit in this estate, may stipulate in his will that a part, no more than a fifth, of the net income be issued annually to the widow (or widower) for life, and for children, through a loan secured by income in a credit institution, an untouchable monetary capital is drawn up or converted into government bonds, not exceeding 3 years of net income from the entire estates: this capital is divided equally between all male and female children (1069 Art. Civil Code). A. The testator can dispose of the family estate only on the basis of laws, i.e. leave the family estate to those persons who, according to the law, should inherit in this estate - in the same family from which the estate came to the testator. In essence, therefore, the right to bequeath family estates in this form has no practical significance. If the testator, having several heirs in the same clan, wanted to assign one well-known estate to one of them (the village of Petrovskoye, etc.), and another to another, then this order, in dispute, should have been declared invalid if it turned out that the distribution of estates was made unevenly, inconsistent with the quantitative share of each of the participants in the inheritance. According to the right of legal inheritance, which in this case takes precedence, the heirs in one line receive the estate collectively and then divide it generationally and without exception, according to shares (Articles 1121–1125, 1136), entering into a free agreement among themselves to equalize the shares during division. This right of free agreement would be violated if one of the co-heirs, by common law, were forced to submit to the special assignment of a certain estate in favor of another co-heir and to be content with a monetary accounting of its value instead of a material division of the estate. It is even less possible to recognize the legality of assigning a certain family estate at the will of the testator to a specified share to the surviving spouse: the specified share is allocated to the surviving spouse by other heirs by common agreement, from the entire mass of the inherited estate. B. We do not allow direct disinheritance; but indirect deprivation, by assigning the estate to another person, is always possible with respect to estates that the testator can dispose of by law. So, in family estates, the owner cannot eliminate his heirs, either directly or indirectly. Anyone can bequeath well-acquired property to a stranger, bypassing his relative, and to a distant person, bypassing his neighbor; therefore, this already eliminates the neighbors and relatives whom the testator has bypassed. There are cases when the testator in his will explains exactly what he is eliminating close heirs and for what reason. This increase is unnecessary and has no legal significance if the will of the testator is expressed about who he is giving the estate to. Therefore, for the groundlessness or illegality of this increase, the entire will cannot be overthrown (cf. Art. 1029 of the Civil Code). The father, removing his daughter and grandchildren from inheriting the acquired estate, explained the reason: because they evaded his parental care and from living together with him. The daughter, refuting the will, proves that she constantly lived with her father and was on good terms with him, therefore, he did not know or remember what he did, removing her from the inheritance. This kind of dispute cannot be accepted, since the will of the testator, in any case, was expressed by the assignment of the estate in favor of a stranger. In our country, querela inofficiosi testamenti - a dispute over an unrelated will - is not allowed in relation to acquired estates. There have been attempts to prove that the testator is not free to bequeath the acquired estate to whomever he wants without assigning a specified portion of it to the widow, since the specified portion expresses concern for ensuring the fate of the widow after her husband and the fulfillment of the husband’s legal obligation to support his wife. On this basis, the widow argued that the husband, by not leaving her anything for the specified portion in the will, violated his legal obligation; but her claim was rejected by force of Art. 1148. Zach. Citizen (see Cass. decision 1870, N 1599). B. Of the acquired properties, leases are subject to special restrictions in testamentary law. Estates granted for a period of time in rental ownership, or income received from these estates and monetary rentals can be, before the expiration of the term, bequeathed only to the wife, children or descendants, but not to further relatives and not to strangers (Law. Civil., 1067. Establishment of the Kaz. im. ed. 1893, appendix to note 3 to article 2, art. 36; cf. this book, part I, § 11). Some noble assemblies, in order to maintain noble land ownership, initiated a petition to limit the hereditary divisions of estates belonging to nobles, which was transferred to the Commission to discuss measures to maintain noble land ownership. The Commission, having examined this petition, found that the root cause of the instability of our land tenure lies in the rules of our civil laws regarding patrimonial property and the division of inheritance. These rules give the heirs the right to demand the allocation of their parts from the estate in kind, on the other hand, the owner of the family estate is completely deprived of the opportunity to transfer it after himself into one hand, which encourages the unlimited fragmentation of land ownership, the consequence of which in the end is the complete impossibility of running a farm on the estate and the need to sell. To eliminate this, the Commission proposed to give the owners of established family estates, who have several legal heirs in the descending line, the right to bequeath the family estate to one of them of their choice, with preference for males over females. This main heir (the term of the Commission) is supposed to be obliged to satisfy the other heirs and the widow or widower with cash payments, according to the will of the deceased, or according to calculation, in accordance with the inheritance share of each of them, within five years from the time of opening of the inheritance or from the time of termination of lifelong ownership, if such was established by the will in favor of the spouse. Until the final settlement, the main heir is obliged to pay interest to others at 5 per hundred. If the estate is sold before all payments have been made, the other heirs are allowed to retain the estate for the price stated in the will. If several desire, preference is given to the eldest, by right of primogeniture and representation, with preference in equal degrees for the male tribe over the female. The same principle of indivisibility of estates is carried out in the Commission's draft and in inheritance by law: one of the heirs is allowed to retain the estate in its entirety if he assumes the obligation to satisfy the others with money to the extent of their inherited shares. The price of the estate is set by the heirs by agreement or by the court. In the lateral lines, family estates are supposed to be bequeathed to several relatives, according to the number of estates. The Commission proposed to establish such a different order of inheritance from the general one not in every estate, but only in estates of insignificant size, namely those that do not exceed more than twice the qualification established by law for participation in the election of councilors to the district zemstvo assembly, have an estate and do not consist of such separate plots on which proper farming is impossible. § 64. Will on acquired estate. – Interpretation of the rule contained in the note to Art. 1011. Zach. Gr. – Property restrictions. – Granting the estate for lifelong ownership. – Simple substitution The general expressions used in the charter of nobility and city regulations about the owner’s right to dispose of the acquired estate in the event of death turned out to be insufficient when it came to deciding whether the acquired estate could be bequeathed successively to two or more persons. In 1804, on this occasion, the Highest Decree was issued on the will of the landowner Opochinina, to whom she provided the acquired estate to her grandchildren so that, in the event of their death, the income from this estate would be turned to the benefit of their mother (the testator’s daughter), and upon the death of this latter, to the benefit of her husband (the grandchildren’s father). By this decree, Opochinina’s will was approved, in accordance with the charter of the nobility, and in conclusion it was commanded: that henceforth everyone, having acquired acquired estates at will, could give, donate and bequeath them on such conditions regarding the manner of use and management that he recognizes as good, as long as these conditions are not contrary to the general state laws. After that, from particular cases, questions arose: can a testator, having assigned an estate to one person, then, in the event of the death of this person, determine the further transfer of the estate from him - an order that essentially had the form of a fideicommissum. In one of these cases, the State Council (March 16, 1814) rejected the orders of gr. Buxhoeveden, who in his will set the condition that the estate up to the third generation would neither be sold nor mortgaged, and that the widows of his sons, if they remained childless, would be given 50,000 rubles instead of the specified portion. In the case of the will of Campenhausen (1813), the State Council reasoned: in Russian Laws there is no resolution allowing wills that would make the estate forever unsalable. Allowing the non-sale of the estate would forever deprive the treasury of significant income from duties. Moreover, the indivisibility of the estate harms the heirs themselves. In another case, it was decided (May 22, 1827) that the acquired estate, bequeathed by Olsufieva to her Deledinsky brothers, upon their death, should not be made available to the testator, as she demanded, because after the death of the Deledinskys, their rights to the estate, which had become a family estate, naturally passed to their heirs. Then a well-known case arose about the will of the foreman Lopukhina, to whom, having excluded her sons from inheritance, she gave the acquired estate to her two daughters for the eternal and hereditary possession of them and their heirs, so that her daughters, having divided her estate upon death, would be after each other exclusively heirs, with their descendants, and if there were no such, the estate would be given to the state department. Resolving the issue of this will, the State [State] Council in 1839 found that, by force of laws, “the owner of an acquired estate disposes of it freely and unlimitedly, can donate and bequeath it at will, and even has the right, by force of a will, to oblige the heir chosen by him, for the duration of his life, to fulfill certain orders regarding the property, for example, monetary extraditions (Article 1086 I Part X t.), etc., but after the death of this person, when the estate bequeathed to him becomes hereditary, it can no longer be subject to the arbitrariness of the first patrimonial owner, either in the order of management, or even less, in the order of its further transfer.” These expressions were included in the footnote to Art. 1011. I part X vol. Moreover, in the same opinion of the State Council it is accepted that with strict adherence to this order, our fundamental decisions on heritage can retain their meaning and their force and validity; otherwise, the varied, often rash desires and intentions of private individuals would replace the uniform and constant operation of the law. Regardless of this, allowing arbitrary conditions in the order of inheritance would give the testator the power to establish primaries without the Highest permission. The will may establish various conditions with which the testator connects the subject person to take possession of the bequeathed property or the possession and use itself. Conditions of the first kind most raise doubts about legality, because they may contain an obvious or hidden contradiction with the rule contained in approx. to Art. 1011. Therefore, it is very important to understand exactly the stated rule in order to judge accurately in each given case whether a testamentary disposition fits the criteria of illegality outlined in the above article. Let us first point out the distinctive feature of a prohibited order. In our country it is more difficult than elsewhere to distinguish it, because our testamentary law does not know the formal difference between the appointment of an heir and the refusal - a difference adopted in all foreign legislation, and yet the prohibition contained in approx. to Art. 1011, is clearly borrowed from a foreign institution of substitution, in which the above difference is necessarily assumed. This can lead to confusion of concepts. Often, according to a will, the same estate is intended, in different respects and with unequal degrees of right, for the possession of several persons - one after the other: many are inclined in each of these cases to see a double hereditary assignment only because a certain estate, by the will of the testator, must pass into possession from one person to another. At the same time, due attention is not always paid to the uneven rights to the estate granted to each person. Note to Art. 1011 refers exclusively to the transfer of uniform and completely identical rights, i.e. ownership of the estate, meaning in particular the appointment of a change between two or more chosen heirs, i.e. successors, full ownership of the known property. In our country, due to the vagueness of the law, the term “heir, inherit” does not have the proper definition in use. It is said: such and such an estate was denied, in the sense of a full inheritance under a will, and it is said, on the other hand: such and such a testator left to such and such an inheritance his library, a golden snuff box, etc., in the sense of a refusal or a legacy. However, even if precise terms have not yet been developed, it is still necessary to distinguish between concepts. Upon the death of the patrimonial owner, an inheritance remains - this is the totality of all property, all those rights that the patrimonial owner held for himself and in the form and volume as they were at his death. The heir, entering into ownership after the deceased, in the entirety of the property or in some share thereof, becomes, in proportion to this, a representative of the legal personality of the deceased. But regardless of this, the deceased patrimonial owner could, of his own free will, in accordance with Art. 514. Zach. Gr., in the event of death, from the entire composition of the patrimonial rights of one’s own, special incomplete and temporary rights that have a special interest in the property, separate them from the right of ownership and present at one’s own discretion in favor of other persons, not direct inheritors, to whom the right of ownership of the estate is not granted; It is obvious that these individual rights, such as, for example, the right of lifelong or temporary possession, the right to income or annual payment from the estate, etc., - rights created, so to speak, by the testator himself and separated from the right of full ownership, are not included in direct succession after the will. The person who accepts this right receives as a gift a value allocated from the estate or one part of the content of the property right (for example, use), therefore, cannot be called a successor to the inherited estate. In one and the same estate, by the will of the testator, several similar rights may be established for several persons at the same time, and none of these persons could also be considered a successor to the estate; Likewise, if such a right, by the will of the testator, was first established for a certain period in favor of one person, then for a certain period in favor of another person, etc., sequentially, none of these persons, or even all of them together, would have succession in the estate. It belongs exclusively to the one to whom the estate is assigned as the heir, and this quality can belong to only one person at a given moment. There may be several temporary owners - participants in use - at the same time. There can be only one owner, without joint ownership. He may be limited, by the will of the testator, in the use of the estate, in the use of the estate, but if he is granted ownership rights to this estate, then it does not allow restrictions in its essence. And the right of ownership in its essence would be limited, would lose the necessary unity, would contain an internal contradiction if, along with the owner or behind him, there was another person who, regardless of his will, would be considered the successor after him in this estate, according to the will of the deceased testator. This is the beginning from which the prohibition, expressed in the note, comes. to Art. 1011 Gr. Zach. It is prohibited to establish further hereditary transfer of the estate after the person to whom the estate is bequeathed as full ownership. So, this prohibition, by its purpose and reason, does not and cannot concern the transfers of temporary and separate rights to use the estate or some of its parts established by the testator, as long as these transfers do not essentially violate the right of ownership granted to one known person who should be considered the heir of the testator. So, if the will stipulates two full heirs, who do not inherit together after the testator, but inherit one after the other, according to the will of the testator, such an order is illegal: in order to maintain the unity of property, one of them can be correctly appointed as an heir - precisely the one to whom the will of the testator was previously addressed, and the other will not be a real heir, but a dummy, for the testator has indicated to him to inherit in his estate - both after himself and after the other one put forward heir, mediocre inheritance. The law does not allow indirect succession of property rights. On the contrary, when a testator only bequeaths an estate to one person, he chooses one person as his immediate heir, only postponing the entry of this person into actual possession of the hereditary estate until a certain event, and before that, granting temporary and private rights to other persons in the same estate, such a disposition in itself does not fit the prohibition expressed in the note. to 1011 Art. These considerations may serve as guidance in the application of Section 1011. and notes for individual cases. 1. The testator, appointing an heir to his acquired estate, can delay the time of his taking possession of the estate by right of ownership, and before that he can separate possession or use from this right of ownership and provide it to another person for a time (cf. 513, 514 art.) 98; but then the testator no longer has the right to oblige the chosen full heir to preserve the estate and transfer it to another, pre-specified person. This is the rule of the note to Art. 1011; only the reason given in the opinion of the State Council is not entirely correct: as if the estate received by will becomes inherited. This does not always happen, but only when the estate is bequeathed to a person who has the legal right to inherit after the testator (see Part 1 of this book, § 12), and, moreover, in any case, by virtue of the will, it becomes patrimonial not for the testator himself, but for the successor. For examples of illegal orders of this kind, see § 67. The rule contained in approx. in Art. 1011 art. Zach. Citizen, is there a new law and should it be applied to testamentary dispositions that took place before the publication. V. u. pl. State Sov. 1839? It seems necessary to admit that the resolution of Art. 1011. is nothing more than an interpretation or clarification of the law, which the legislator recognized as existing at that time. But it was understood differently, and therefore the judicial practice of previous times allowed the determination of the further order of inheritance by the will of the testator. Decisions of previous times, finally taken, are, without a doubt, recognized as inviolable, but they have the power to determine only those legal relations that were then in dispute and determined by those decisions. It is hardly possible to agree that those decisions, in addition to the legal relations directly determined on the basis of wills that do not agree with the rule of Article 1011, affirm unshakably and forever, with all further consequences, the will and the order of succession established by it for the future, therefore, justify in advance all those legal relations that, if they were not then in dispute, could henceforth arise on the basis of the same will. It seems that there should be a law attached to these relations, in the current consciousness of the law, restored by the new edition of Art. 1011. Zach. Citizen There was such a case. In 1819, Ivan Ananyevsky bequeathed his estate to his wife, with the understanding that everything that remained after her should go as an inheritance to their sons, and in the event of their death childless, to the testator’s own family in the male line. Upon the death of the widow, who received the estate, her son Peter became the heir, and, moreover, the son of her deceased daughter Kazakov laid claim to the indicated 1/13th share in the degree of his mother. The Senate in 1834 approved only Peter, and rejected Kazakov on the exact basis of the will of Ivan Ananyevsky. Then, already in 1847, Peter Ananyevsky died, and his inheritance came, on the one hand, the Kazakovs, the descendants of his sisters, on the other hand, his cousin Dmitry Ananyevsky, and the latter assumed the exclusive right to the entire inheritance, referring to the will of Ivan Ananyevsky and the Senate decision of 1834, by which that will was approved; according to the general law, his relatives, and not his cousins, were to be recognized as heirs after Peter. Senate (I General Meeting February 11. 1872) reasoned that the decision of 1834 related to the inheritance after the mother of Peter Ananievsky, and the current inheritance is completely different - after Peter himself, so that decision has no application at all to the new case. If in 1834 the will of Ivan Ananyevsky was applied by the Senate to that case, then in 1847, after the death of Peter, by the power of the High. decree of November 18, 1839, which followed in clarification of previous legislation, his property should go to the closest heirs by law. 2. Having appointed an heir in the acquired estate, the testator can oblige him to take actions that limit the full right of ownership and use associated with the property, i.e. to duties or cash payments in favor of another person, but only for the duration of the life of this heir; beyond this period the will of the testator cannot operate. This restriction is eliminated, of course, in the case where the estate is bequeathed not to an individual subject to death, but to a legal entity having continuous existence: in this case, the conditions under which the use of capital or property is prohibited may be continuous. 3. When one well-known person is appointed as a full heir to an estate, temporary possession or use of that estate may be granted not only to one person, but also to several persons, not only cumulatively, but also successively one after the other. Fixed-term or lifelong ownership, established by appointment of the testator, is included in the category of rights referred to in Article 514. Zach. Civil: the right of ownership is retained by the heir, who becomes, by this right, the successor of the testator from the moment the inheritance under the will is opened, i.e. or from the death of the testator, or from an event or period specified in the will, and the right of temporary possession, being separated from the right of ownership, is granted to another person. Thus, between the owner who does not enter into possession of the property and between the actual owner, a special legal relationship is formed on the estate: it has already been noted that this relationship is not defined in our law with due precision (see Part 1 of this book, § 62). Without a doubt, this separation of possession from the right of ownership significantly limits the interest of the person to whom this latter right is granted. This person must wait until he comes into possession of the property, and the waiting time can be, at the will of the testator and according to circumstances, more or less long; In addition, due to the uncertainty of relations that exists in our country, temporary possession can significantly deplete the very content of the property. Therefore, the testator’s order on temporary possession may weaken the right of ownership for the heir to whom it is intended. So, the question arises: to what extent does the testator’s right extend to delay the actual transfer of property to the heir by establishing temporary or temporary possession of this property? There is no doubt that the testator is free to dispose of his acquired estate in favor of persons to whom he wishes to provide temporary use of it; but this freedom must have its own limit - however, not arbitrary, but indicated by the meaning of the law. The testator generally does not have the right to withdraw his estate decisively from anyone else’s property, to determine that it, in the manner predetermined by his will, passes from one lifelong or temporary owner to another, or is transferred from generation to generation into limited ownership. In this sense, a genuine order would be invalid if an heir was not appointed. Such an order would have the form of a constituent act on a reserved estate and would be unambiguous with the unauthorized establishment of a primordial estate, which the State Council had in mind when establishing the restriction set out in the note to Art. 1011. In such a case, there is no doubt that the order is invalid. But when a testator, appointing an heir to his estate, at the same time establishes temporary possession for a long period in favor of another person or gives the estate successively into the possession of two or more persons, for periods one after the other or one after the other for lifelong possession, the question arises: is such an order valid? Isn’t this order violating the basic principle expressed in the note to Article 1011? Although this kind of order has significant disadvantages and restrictions for the direct heir under the will, it is hardly possible to refute such an order on the basis of our current laws. It cannot be brought directly under the power of the notes. to Art. 1011, for this law understands and denies the restrictions of the full heir in the further transfer of the estate upon his death to other persons, but in the above case there is no such restriction, but only delays the entry of the direct heir into possession of the property, delays the establishment of temporary use not for one, but for several persons in succession. Analyzing such an order, we do not see anything in it that is incompatible with the power granted to the testator in the acquired estate. Indicate the purpose of the prohibition contained in the note. to Art. 1011, – to prevent the unauthorized establishment of protected estates; but, in contrast, for this purpose it would be possible to make a disposition in such a case only in the case where the testator established a succession of generations of lifelong owners and then determined who, under what conditions and in what generation should accept this estate as an inheritance: in this case, the will would be a truly constitutive act for the estate and would contain an illegal disposition. If the testator, appointing for himself a direct heir by name from among the living persons, at the same time appoints by name from among the living persons several temporary or lifelong owners of that estate successively, there will be no signs of reserve in such a will. Others, resorting to a foreign term and the concept of substitution to explain the above case, see in it the property of substitution, but this is also unfounded, for the property of fideicommissary substitution is that the property given into ownership must be retained by the owner and transferred to another, so that the property itself becomes inalienable; in the present case, the matter is about the substitution of lifelong ownership only, but the estate itself does not at all receive the property of inalienability, and the property right belonging to a known heir remains free. Therefore, in those countries where substitution is included in the legislative system as a special institution of civil law (for example, in France), legal practice justifies the establishment of a successive usufruct, in view of the full owner (see Dalloz. Repertoire. Usufruit § 102). However, one cannot help but admit that the complete freedom of the testator in such orders is associated with significant inconveniences, and therefore, perhaps, it would be useful to establish in the law the extent to which this freedom can extend. The question of the possibility of bequeathing an estate successively to two persons is resolved in the affirmative in the opinion of the State Court. Sov. March 30, 1870 according to the will of Baroness Frank. Baroness Frank denied lifelong ownership of the estate first to her husband, then to her son; if the latter dies childless, the estate is given to Levshina and her children. Nothing like the State Mayorate. Sov. I did not find it in this order: the essence of a reserved estate consists in preserving the estate for a whole family of owners and in the successive transfer of it from one to another and from one tribe to another, according to the order provided by the founder. Baroness Frank did not assign successive transfers of her estate from one owner to another. According to the meaning of the will, only one person was supposed to have access to this estate, who was to receive the estate as exclusive property upon the arrival of the period appointed by the testator, i.e. upon termination of the lifelong ownership of two persons, and persons living and contemporary to the testator are appointed as lifelong owners. Further, discussing this order, the State Council found that it does not contradict Art. 1011. Zach. Gr. and in accordance with the principles expressed in the decree on the village of Opochinina, in Art. 222. IX volume (327 according to the 1876 edition) and 514 art. 1 part X t. Here the objection is refuted that these orders do not agree with Art. 1011. in the sense that a will is a declaration of the will of the owner in the event of his death, and not in the event of the death of other persons. “This article,” says the State Court. Sov., - contains only a general definition of a will as an act containing orders that should come into force after the death of the owner, as opposed to those acts through which he makes various orders regarding his property during his life. But the resolution of Art. 1011 It cannot be understood in the sense that all orders placed in the will should receive final execution immediately following the death of the testator himself.” 4. The very appointment of a successor to the estate can be made by the testator dependent on the conditions determined by the events at the moment of the testator’s death: as long as only the will of the testator at this or at a specified moment can be interpreted and carried out without doubt, and only if the appointment of the heir has proper unity. No matter what probabilities of events the testator foresaw and no matter what combination of these probabilities he established in the event of death, his disposition will not be illegal if only the resolution of these probabilities, according to the events, is brought, by the will of the testator, to one known minute and to one act - to the appointment of an heir. This will be a case of so-called simple substitution - subst. vulgaris, which is not prohibited by our laws. The testator can, for example, presumably designate a number of persons so that one of them is granted an estate under certain conditions under which this person will fit at a given moment, and all other persons will not fit. Such are, for example, the following orders. I bequeath the estate to Peter, if he is alive at my death; if not, then to Paul; if even this does not happen, then to Ivan. I bequeath to Ivan or his children, if he is not alive. I bequeath to Ivan, if he has children at my death, but if he is childless, then to Pavel. I bequeath to Peter and Paul or whichever of them is alive after my death (this means both will inherit if both are alive; one will inherit if one is alive). I bequeath to seven young children N.-N.-N. with the fact that, if one of them is not alive at my death, then part of him should go to the increment of the part of everyone else and to the division between them. In all these cases, the unity of assignment is not violated, since the estate is assigned only once. On the contrary, the following orders would be illegal. I bequeath to Peter and Paul that if Paul, having received property after my death, dies childless, then part of it should go to Peter. I bequeath to four minors Ivan, Peter, Feodor and Pavel that if any of them, having accepted his part of the estate, dies before reaching adulthood, or before marriage, then part of it should go to the division of everyone else. In February 1863, during the Polish rebellion, Dzekonski bequeathed the estate to four nephews with the understanding that whoever of them does not remain faithful to his Monarch will be alienated from the inheritance given to him by will, and part of it should belong to the other brothers. The testator died on April 1, and on April 24 one of his nephews, Karl, became a politician. a criminal and was subject to confiscation. The question arose about the validity of the testamentary provision. It would be illegal if the effect of the condition applied to the possession of the criminal successor that had already begun: in this case, the testator would determine the further order of succession between the heirs after his death. On the contrary, the condition turned out to be legal if it related to the moment of death of the testator and the circumstances surrounding it. In this latter sense, the condition is interpreted and it is recognized that Karl, not yet being a criminal at the death of the testator, had already acquired the estate assigned to him by will (pl. State Council, November 23, 1870), and that then this estate, as his property, is subject to confiscation. § 65. Granting of property under the condition of an expected event. – Can the estate remain unknown about the identity of the owner? – Granting of estate to an unborn person 5. The appointment of a full heir may be made dependent on an event assumed or expected not only at the death of the testator, but also within a certain period specified by the testator. In this case, although the will of the testator is expressed with all clarity, the determination of the identity of the heir is also provided by him depending on future events with the fact that before the occurrence of a possible event, there are several persons in mind, each of whom, with a combination of known conditions, can be an heir, but upon the occurrence of the event, one person will be declared the heir, meeting the conditions specified by the testator. In such an order one should hardly see anything contrary to our laws. The testator is not generally prohibited from decreeing the purpose of his estate or the use of it and the manner of use, as long as these conditions are not contrary to the laws (Art. 1010, 1011, 1067, 1029); These conditions, according to the accepted division, have a double meaning for the right of appointed persons. Or a circumstance is determined upon the occurrence of which the right of the appointed person must cease and give way to the right of another person (cond. resolutiva); or such a circumstance is determined, until the occurrence of which the right of the appointed person is limited, either in the sure expectation of full implementation, or in the likelihood of implementation (cond. suspensiva); in other wills there is a combination of these and other conditions 99. The order referred to in the note to Article 1011 combines both conditions: one person is appointed as a full heir to the estate, with the condition of the first kind (c. resolutiva), that by death absolutely every right of his is terminated with every act of will: the end of his full property is indicated by the will of the testator; at the same time, another person is also appointed as a full heir in the same estate, with the condition of the second kind (c. suspensiva), that his right is retained in action until the death of another, previously appointed heir. But the right of property, as an unconditional right, is not subject to such conditions, and therefore in such a case the law declares such a condition invalid. It must be concluded that any condition that implies the possibility, at the will of the testator, of terminating the right of ownership in a person who has already been appointed in this right as the successor of the estate is also illegal. At the beginning, expressed in approx. to Art. 1011 Zak. Gr., the right of ownership in the person of the first-designated successor, although it may be limited for the duration of his life, cannot be terminated at the will of the testator. This conclusion completely agrees with both the principle adopted in our law and the rule adopted in foreign legislation on the invalidity of termination conditions when appointing an heir. On the contrary, where there is no such restriction of the right of ownership in its very essence, there the condition is possible and not illegal. So, it is possible for a testator to assign his estate for temporary possession to a known person, before the due date, so that upon its maturity, the estate becomes the full property of that person who at that time turns out to meet the conditions under which the testator chooses an heir. Many people object to this because the identity of the heir would remain unknown for some time after the death of the testator. Without a doubt, it is impossible to allow such a legal state of the estate in which it could remain indefinitely and unconditionally without an owner; but such a state - if it is urgent and conditional, and by its very establishment means a successor and full owner - does not contain a legal contradiction (for example, the state of an inherited estate to which the heirs have not yet appeared before the expiration of the terms). A will similar to the one above undoubtedly indicates the time when the temporary possession of one person should be replaced by the entry of the heir into the property, and it also indicates who at that moment should be declared the heir after the testator; therefore, there is no uncertainty about the right and about the succession of the estate. The existing law does not prohibit donating and bequeathing property under conditions regarding the manner of use, as long as the conditions are not illegal, and in a condition similar to the above, there is no violation of a direct legal rule. Between the death of the testator and the announcement of an heir to the estate, under the conditions established by the will, there is no empty interval during which the estate would seem to belong to no one: it consists of temporary possession at the will of the testator, and there is no need to go into search about who, until the specified event or period, has the full, unconditional right to the bequeathed property, because until that time the testator himself made this right incomplete and conditional, therefore, the estate is as long as part of the estate remains after the testator. There is no direct article in our laws that would prohibit such orders. They cite Article 1026, on the exact designation of property and persons, but this article is observed when there is no doubt about who, according to the will of the testator, should be the heir to the estate, even if the name of this person was not put forward, for this article, in its direct meaning, is a rule about writing and presenting a will, and not about the essence of the disposition, and its direct purpose is to eliminate inaccuracy and ambiguity in the statement of the will testator, whatever that will may be. Another article 406 is cited. Zach. Citizen, deducing from it that all property must belong to someone in particular - otherwise it belongs to the state; but this article is not at all relevant to the subject under discussion, firstly, because it contains no instructions or prohibitions at all limiting private will in disposing of property; secondly, because, as explained above, an estate bequeathed under a waiting condition cannot be recognized as not belonging to anyone: being in the possession of the one who was directly given possession, it is not considered to belong to anyone, for an heir to it must certainly be identified upon the occurrence of a positive period or a foreseen event. They also say that the uncertainty established by such appointments in the responsible person of the owner harms the legitimate interests of third parties who have claims and claims against the person of the deceased patrimonial owner. Perhaps this causes some difficulty for third parties in exercising their rights and making demands; but this difficulty is not absolute, and does not take away the opportunity to find a responsible person. The testator's disposition regarding the estate, whatever it may be, in no case can violate the rights of third parties to this estate or their legal claims extended to this estate. This position is indisputable, and there is a possibility, in relation to rule 215 of Art. Est. Citizen Litigation, to bring claims against the deceased owner even when there are no recognized heirs or who have taken possession. In any case, even if the exercise of the mentioned rights in the present case was associated with difficulties, this is a deficiency of procedural law that requires addition and correction, but because of this deficiency and difficulty there is still no reason to deny the legal possibility of such a state of inheritance, with which difficulties are associated; similar difficulties arise in the case when the heirs do not come to the remaining inheritance for several years, or a dispute about the inheritance lasts for several years, and meanwhile claims arise against the person or estate of the deceased patrimonial owner; However, from these difficulties no one denies the possibility of such a state in which the person of the responsible heir has not yet been determined. The ownerless state of property in this case is imaginary, because the owner of the property, i.e. the manager, there is someone, until the minute when the identity of the heir is determined beyond doubt: either the one who has been granted temporary possession and use, at the will of the testator, or his legal heir, to whom, in the absence of another order, temporary possession and use of this property should belong. Be that as it may, we do not have a law, either general or specifically related to wills, which would express the rule about the illegality and legal nullity of any state in which the person of the owner or successor remains at least temporarily unknown. Finally, it is objected that a break in succession is not allowed, and in this case a break would be allowed, because from the moment of the death of the testator the question of who will be his successor remains open for some time. This objection is also unfounded. Indeed, it is impossible to imagine a break in hereditary succession, i.e. such a state in which the estate would legally and unconditionally appear to be no one’s, a state without rights, impersonal, not determined either by the will of the deceased or by the law, not included in any category of rights. But such a break, truly unthinkable, should not be confused in any way with the state of uncertainty about the inheritance: such a state is legal - it necessarily occurs in many cases and is therefore allowed and even determined by law. It is indicated above that after the opening of an inheritance, a state of uncertainty about the heir may occur for many years until he appears. This uncertainty not only does not lead to the denial of such a state, but the law determines who, in the absence of an heir or executor, should manage and administer the opened inheritance. Therefore, in essence, such a state is possible from a legal point of view. Possible in relation to legal inheritance, it is no less possible in testamentary succession, when the will of the testator establishes a state of temporary and enduring uncertainty about his final successor. Our law does not speak directly about this state and does not define it; but this is still no reason to recognize such a state as illegal if it does not contradict a provision directly stated in the law that is incompatible with such a state. To deny such a condition, reference to the harm allegedly occurring from the supposed “ownerless state of property” means nothing. This is an argument - perhaps for the legislator, but for the court it has no legal significance, as long as it is impossible to refer to a direct law, from which the denial of such a state would follow. The above opinion is further supported by an analogy taken from other legislations. In Western legislation, starting with Roman law, such a state is recognized as legal and does not imply any break in succession, for succession after a known person in any case goes back to this person and to the minute of the opening of the inheritance after him, no matter how long the period of uncertainty about the heir and the temporary possession of another person continues. German legislation allows this situation, French law also (see about this Repertoire Dalloz Testa-ments. N 3527, 3617 and many others) allows it to such an extent that it appoints a curator from the government to the inheritance before the occurrence of a suspensive condition, if there is no legal heir in mind and there is no one, at the will of the testator, to give the estate into temporary possession. This is allowed by legislation, in which the concept of establishing an heir or common successor under a will and of the continuity of the hereditary transition is expressed and implemented with all logical rigor - a concept that is not expressed at all in our law regarding wills - and in which the determinacy of patrimonial rights is protected even stronger and more consistently than ours. On what basis would we deny the legality of the above-mentioned appointment? Of course, for a lawyer, a vague consideration of the general interests of property will not serve as a sufficient basis for this. Here we come to the next important question: is it possible to appoint as heir to an estate a person who does not yet exist, but can only be born, in case he is born? Let us note first of all that, according to the rule explained above, the ability of persons to perceive what is bequeathed is determined not by the minute the will is drawn up, but by the minute the inheritance under the will is opened, i.e. the death of the testator and the final completion of the covenant left by him. Therefore, in relation to the minute of drawing up the will, the above question is eliminated. In general, positive legislation recognizes that the order is valid if the chosen person turns out to be born at the moment of his death or, at least, turns out to be in conception, a uterine baby (according to the Roman rule: nasciturus pro nato habetur, quoties de commodis ejus agitur); on the contrary, if he is not at that moment either at birth or at conception, then the testamentary disposition, not finding a person at the moment of opening the inheritance, falls and is declared invalid, i.e. It is impossible to bequeath to a person who, having not been born or conceived at the moment of the testator’s death, is supposed to be born thereafter at an unknown date, at least from known parents. Although such a rule is not directly stated in our legislation, it is also possible for us to derive it from the analogy of hereditary succession with testamentary succession, for it is said about inheritance by law (Article 1106 of the Civil Law) that children are not excluded from it, even if they were not born, but only conceived during the life of the father. Hence, in practice, they conclude that testamentary dispositions in favor of persons who were neither born nor conceived at the death of the testator are not valid. However, in 1873, by the decision of Cass. Sep. N 1530, it is recognized that the testator has the right to oblige his heir under the will to make annual payments in favor of children, both those already born and those who may be born from the person specified in the will. Due to the poverty of our law, we are sometimes forced to resort to analogy to indirectly derive rules that are not directly stated in our law, but are expressed directly in other legislation. But it often happens that in other legislation the rule was expressed in the organic development of an entire institution and in connection with other provisions that constitute an exception to it and moderate its strict, unconditional meaning, but in our case this rule, extracted by analogy, without being expressed directly, is already in unconditional force. This is what happens in the present case. For example, French law, while prohibiting substitution in general, allows it in two cases: parents are allowed to bequeath property to their children so that they can pass it on to their children who are about to be born; childless people are also allowed to bequeath property to their brothers and sisters on the same basis (Code N. 1048, 1049). The Italian Code prohibits substitution unconditionally, but allows (Article 764) the bequeathing of property to the children of a known person who is alive at the death of the testator, even if at the time of his death these children were not yet born or conceived. With us, since there is no direct prohibition on bequeathing property to a person who has been born, there are no similar restrictions on the prohibition, and therefore the effect of the prohibitory rule, without being moderated by anything, is provided in many cases by contradiction and injustice. Sometimes such an appointment is explained by the desire of the testator to keep the estate in his family, for example. - in favor of grandchildren, nephews, etc., if they are born, in which case he wants to transfer the estate to them from the possession of a stranger or distant relative, and otherwise leave the estate with him. The father, leaving behind his childless son and not hoping that the spendthrift son would retain the estate, would like to preserve the estate for his son’s children (who are not yet present at the death of the testator), in case there are any. Desires are legitimate, and in the first of the examples given, a desire that even corresponds to the purpose of our law to keep the property, as far as possible, in the family of the owner. Nevertheless, such orders can be declared invalid if, according to our law, the prohibition of bequeathing an estate in the name of non-existent persons is accepted in full force, and then other assignments made by the testator in connection with an illegal condition can be left in unconditional force. This is, for example, the following case. The estate was bequeathed for temporary possession to the son with the understanding that upon his death, if he has children, the estate passes to them, and if there are no children, then to strangers. It turned out that the son had children, but they were born a few years after the death of the testator; if, therefore, the first conditional assignment in favor of the children is destroyed, then the second one can be left in force, i.e. a false appointment in favor of strangers is a clearly unfair result, completely inconsistent with what the testator wanted: her grandchildren, to whom she clearly wanted to pass on the inheritance, will be deprived of it. In order to avoid such perplexities, it would behoove us, having clearly expressed in the law the prohibition to bequeath in the name of persons who do not exist at the moment of the testator’s death, and at the same time allow an exception in favor of the descendants of the testator or the person to whom the estate is transferred directly into temporary possession. Examples. The testator, having a nephew Peter, who disappeared without a trace on a long campaign, and still retaining the hope that he will someday appear, decides: the estate will be with Ivan, in lifelong possession or until Peter appears; in the latter case, or at the death of Ivan, Peter will be present, Peter will be the heir; if not Peter, and there is no information about him, then the estate goes to Fedor. The testator, having three young nephews and three young grandchildren, gives the estate to all six for possession and use until the youngest of them reaches adulthood; and during this period he decides to divide all this property equally between those of them who will be alive at that time. Such an order is correct, because until the time limit set by the testator, the mentioned minors cannot be named and separately considered heirs and owners of the estate by right of ownership, and only during this period, at the will of the testator, on the assumed conditions, the transfer of ownership rights to them takes place. On the contrary, such a disposition would be illegal if the testator had decided that immediately after his death he would give ownership of the estate to all named persons, and would have kept the same condition. In this case, the right of ownership would immediately pass to the minors upon the death of the testator, and in the event of the death of one of them, the testator would not have the right to determine who should inherit his inheritance in the testamentary estate after him. The order would also be illegal if the testator decreed: I bequeath the estate to three nephews, the children of my sister, and three grandchildren, the children of my son, so that when the last of them reaches adulthood, the estate will be divided equally between him and the other children of both my sister and my son, who may still be born by that time. Here's another order. I bequeath the estate to Ivan for life, with the understanding that if he dies childless, the estate should become the full property of my pupil Marya. In these expressions one can see three appointments: 1. Ivan as the lifelong owner; 2. His children, if any, will be heirs; 3. If he has no children, then Maryu will be the heiress. The second order, in favor of non-existent persons, is illegal. But let’s assume that the will is written like this: I bequeath the estate to Ivan for lifelong ownership; If he gets married and has children, then I will give this estate to him as his property - the disposal will be legal. § 66. About conditional appointments in general. – The conditions are impossible and illegal. – Conditions that restrict civil freedom Everywhere the law allowed to give and bequeath property conditionally, i.e. to combine your order and the right of the gifted person with a period, with the observance of a condition, with the imposition of a duty, with the determination of the manner of possession and use: as long as such conditions are not contrary to the law and public order. The basis for this rule is not difficult to recognize. Every civil act, insofar as it has legal significance, contains coercive force (sanctio), i.e. may be enforced by the force of law and government, in case of evasion of voluntary execution or in case of violation of the right established by the act. But the law promotes the fulfillment only of what is in accordance with the law; What is contrary to the law is considered impossible to enforce before the law. So, if civil law, by the will of a private individual, is combined with an assumption or condition that is impossible by law, then the law does not recognize this connection. But is it possible in these cases to separate the right from the condition with which it is connected? Having rejected the latter, leave the former in force? Or does the right, inseparable from the condition, stand with it and fall with it? In Roman law, on this subject, it was accepted that the conditions under the contract differ significantly from the conditions under the will. The contract comes from the total and indivisible agreement of two wills in one integral act, and therefore, if one component of the agreement is rejected, the condition is illegal or impossible, the whole agreement falls and becomes invalid. On the contrary, a will is an act of unilateral will, in which agreement is impossible, and the person in whose favor the conditional assignment is made does not participate in the least by his will either in the assignment or in the condition with which it is connected. Roman law generally favored wills; the will was the general custom; to die without a will was considered reprehensible, and the will of the deceased was considered sacred, and, in order to support it, the most extensive interpretation was allowed. From this respect for the last will of the citizen, most likely, a rule arose in Roman law - not to reject the essence of a testamentary assignment for the illegality or impossibility of the condition with which it is connected, but to cut off only the condition itself, as if it did not exist (Impossibilis conditio in institutionibus et legatis pro non scripta habetur. In conditionibus primum locum voluntas defuncti obtinet eaque regit conditiones. In conidtionionibus testamentorum voluntatem potius quam verba considerari oporteat) 100 . In our law one can recognize the same difference in view of illegal provisions in contracts and in wills. In a contract, the law (Article 1529) has in mind its motivating purpose and recognizes the entire contract as void when its motivating reason tends to achieve a goal prohibited by law. It is said about wills (Article 1020): if the will contains orders that are contrary to the laws, then these orders are not valid, but at the same time all other orders that are not contrary to the laws remain in force. Application of Art. 1529 to wills, as well as to contracts, requires special caution: otherwise it can become an instrument of violent constraint of private will. To apply this law, it is necessary to have precise and direct evidence that the motivating reason for the testamentary disposition was precisely the achievement of an illegal goal. It is not enough to know or foresee that as a result of a testamentary disposition, under certain circumstances, an illegal event could follow or a state could arise. It is necessary to make sure that such a consequence of the order would be direct and inevitable, so that the will of the testator could be directed only towards this consequence. Among the illegal purposes indicated by the article is: when an agreement (managerial order) tends to harm the state treasury. Almost every civil action or state of a person is connected with a fiscal interest and can be the subject of fiscal accounting, so one can imagine how many reasons this vague expression of the law would provide for refuting testamentary dispositions if judicial practice gave this expression a broad interpretation. In 1863, during the rebellion in the Western Territory, the landowner Dzekonsky bequeathed the estate to four nephews with the understanding that whoever of them took part in the rebellion would lose his share and go to his brothers. It turned out that at the death of the testator, one of his nephews, Charles (who later took part in the rebellion), was not yet a criminal, and therefore the part of the inheritance that had already passed to him was confiscated as his property. Meanwhile, the treasury refuted the legality of the testamentary conditions in general, and if at the moment of the death of the testator Karl turned out to be a criminal, therefore, his property was subject to confiscation, then the question would arise for decision: can the condition remain in force, i.e. whether it was drawn up to the detriment of the treasury, in order to prevent the confiscation of the share of one of the heirs by transferring this share to others. It is impossible to obtain direct evidence that this was precisely the goal of the testator, because in a general sense his will is completely consistent with the law, threatening the violator of the law with deprivation of rights to the estate. Then there would be no reason to destroy the order, since the succession is based on a will, and according to the terms of the will, the estate has not yet reached the appointed person when, having met a criminal in it, it is reflected to his brothers and passes to them, not through him or from him, but directly from the testator. But if a testamentary disposition of this kind applied not to nephews, but to the testator’s own children, then the treasury would have something to attach itself to, and the disposition would be destroyed. Children, even without a will, would be direct heirs after their father, and by virtue of the law on confiscation (176 Art. In our legislation there are no definitions at all about the various types of conditions under wills, while other legislation provides quite a few rules and guidelines on this subject. Therefore, in view of the questions and difficulties that often arise on this subject in judicial practice, it would not be amiss to dwell on some of these issues. Conditions that are enforceable and legal are considered an inseparable part of the testamentary purpose. They are obligatory, and the acquisition, continuation, use and termination of the right to property depends on them, according to the will of the testator, as long as it is legal (cf. Art. 1011, 1029, 1086, 1096). Moreover, it should be noted that the will, according to the system of our Code of Civil Laws, is placed together with the donation and grant in one section: on the donative, or gratuitous, acquisition of rights to property; Consequently, our law recognizes a direct analogy between donation and will, which is confirmed especially by Article 991. Law. Citizens, and therefore the rule of our law on the conditions of donation can be unmistakably applied to wills, subject to the rules of analogy. About donation it is said: gifts between private individuals are allowed to be made on such conditions regarding the manner of use and management of the donated property that the donor recognizes as a benefit, as long as these conditions are not contrary to general laws (Article 975). If a gift is made under a condition, and the condition on the part of the recipient of the gift is not fulfilled, then the gift is returned to the donor (Article 976). Of course, there can be no question of returning the bequeathed estate to the testator, since the transfer of the estate under the will takes place after the death of the testator. But if the testator affirmatively decreed that in the event of failure to fulfill the established condition, or with the onset of the due date, or a foreseen event, the person’s conditional right to the bequeathed estate is terminated, and the estate passes to another specified person or to the heirs of the testator by law, then a resolution of this kind has binding force: this kind of condition can be declared invalid if the testator himself has directly expressed that he is giving the estate into ownership, into eternal and hereditary possession of the specified person, because in this case, with the right of property once transferred by will, the possibility of terminating this right at the will of the testator is no longer compatible. Our law does not mention impossible conditions at all. Impossibility can be natural, material or moral. There is an absolute impossibility of fulfillment according to the laws of nature. In this case, the condition, which is absolutely impossible, is invalid. But it may also be a relative impossibility. What is impossible for one may be possible for another; what is impossible at one time or under some circumstances may be possible at another time and under other circumstances; what is impossible to perform for a period of time or suddenly can be fulfilled over time or gradually, and vice versa, what was possible at the beginning may become impossible later. For such cases, judicial practice of other legislations has developed the following provisions. A condition is considered mandatory insofar as it is possible to fulfill; Therefore, a division in terms of the possible from the impossible is allowed, and only the latter is canceled: for example, if execution is impossible within the appointed short period, then an extension of this period or indefinite execution is allowed. Failure to perform is not blamed if what was agreed upon, being possible at the beginning, became impossible later, and at first the fulfillment slowed down through no fault of the obligated person. If the fulfillment of the condition is made dependent on a random event and its complete impossibility is subsequently discovered, then the condition falls (for example, the assignment is associated with the condition of giving the child 10,000 if he lives to be 10 years old, and the child died before reaching these years). The condition is considered optional if it is discovered that the testator himself fulfilled it during his lifetime. The appointment is considered invalid if the accidental event with which it is connected turned out to be impossible during the life of the testator, etc. The condition may be impossible in a moral and legal sense: both will be illegal, because the law cannot contribute to the implementation of a condition that is contrary to public morality. But not everything immoral is illegal. In individual face-to-face relationships there are moral requirements and obligations that are elusive to the law, because they go beyond the boundaries of the legal relationship. So, for example, it is immoral for an owner to leave his poor son without food, leaving wealth to a third party; but as long as the owner acts within the limits of his right of property, the law has no concern for his motives. A requirement that limits a person’s moral freedom where it is unconditionally protected by law, imposes duties incompatible with this freedom, and restricts rights that are unconditionally protected in the name of public morality or public order is contrary to public morality and invalid in the face of the law. These are many rights protected by criminal or state law, or rights arising from family and marital relations. It is impossible for a condition to be fulfilled in connection with a will assignment that would constitute a violation of a general unconditional law or an unconditional obligation; for example, violation of parental rights, violation of marital relations, violation of freedom of conscience and religion, etc. What should be seen as a violation of unconditional freedom and what is seen only as a restriction of a right that everyone is free to use or not to use - it is difficult to give a general answer to these questions: they are resolved in each given case in accordance with the circumstances and in accordance with the views established in society on the moral significance of this or that right; sometimes these issues are resolved by positive law. These are, for example, questions about restrictions on the condition of free marriage. The estate may be assigned under the condition of never marrying, not marrying before a specified period, not marrying such and such a person, marrying a specified person, not entering into a new marriage, not marrying without the consent of a specified person, etc. 101 Obviously, the solution to such questions depends on the general view of the meaning of marriage that is dominant in the mind, or derived from legal assumptions, and on the comparison of particular rights and obligations in this case. So, for example, French practice generally rejects the condition of marrying the specified person, but if in a given case it turns out that this person has been dishonored by the subject, who therefore has a moral obligation to marry her, then the condition can be left in force; rejects the condition not to marry without the consent of the specified person, but if this person is one of those whose consent the subject person is legally obliged to ask, then the condition is valid; rejects the condition imposed by the husband on the wife - not to enter into a new marriage, but if there are children from the previous marriage, and they indicate the purpose of the restriction, then the condition remains in force; allows the condition not to marry before the term - if this period is close to the legal one and is explained by reasonable care - and rejects it if the term is unreasonably long; allows the condition - not to marry the specified person - but rejects it if the subject person in relation to this person has a moral obligation to marry her. And in the Austrian civil code there is (Article 700) a positive rule: “the condition of the heir, or legatee, not to marry even after reaching adulthood is considered insignificant. This condition is mandatory only for a widower or a widow with children. But the condition is considered invalid - not to marry the specified person.” A condition limiting freedom of conscience or religion cannot be valid, since it is contrary to the general state law on freedom; Consequently, in this regard, the discussion of the condition depends largely on the differences in the definitions of religious freedom legislation. So, for example, a condition - not to change religion, not to move from one church to another, or to accept such and such a religion - can be declared invalid where the general law establishes unconditional freedom to change faith; but in our country, for example, with the existing prohibition to deviate from the dominant religion, the condition of which imposes the same prohibition remains in force. However, with the exception of the above case, it seems that we too should reject such conditions that arouse an immoral clash of material interests with conviction and faith in the human soul. Conditions that prohibit the fulfillment of civil duty or duties unconditionally imposed by law cannot be allowed at all. In general, it should be noted that great caution is required in discussing conditions, as far as they agree or disagree with the law. Let us recall here what was said above about the difference between a condition and a constituent definition. Every constituent definition binds the freedom of the one on whom it is imposed, in a state recognized by law, or in the free use of one’s powers, property, and in the direction of the will, which is also assumed to belong to every citizen. In this constraint, which is a property of conditions and voluntarily accepted under an agreement, there is nothing illegal, since they relate only to private interest. Anyone to whom an estate is conditionally assigned is free to calculate what is more convenient and profitable for him - to accept the property with a restriction or duty, or to reject the restriction along with the property. The restriction may also apply to the rights belonging to a person due to his social status by virtue of state law, since these rights are in his personal interest and are not connected with state duty or service; This is, for example, the right to enter or not enter the civil service in one or another department, to choose for oneself one or another title or occupation, since the choice of title or service is not obligatory for him. However, in this subject too, much depends on the principles dominant in the general political system, and on the concepts accepted in society. It is obvious, for example, that the concept of public service and the interest associated with the right to serve, to be an official, is not the same in France, in England, in Russia, and this difference in views is certainly reflected in court decisions on this subject. We should not lose sight of the difference between an order with a threat (poena, clausula poenalis) and a simple conditional order, or an appointment for one or another case, under certain conditions. This difference depends on the will and intention of the testator, which are not always determined positively and literally, but which sometimes have to be found in the contents of the entire will. This difference was also indicated in Roman law: poenam a conditione valuntas testatoris separat, et an poena, an conditio, an translatio sit, ex voluntate defuncti apparet. Not this or that condition in itself, i.e. in its subject matter, gives the testamentary disposition an illegal or immoral property, but the purpose that the testator had in mind. When he specifically meant by the threat of damage or the lure of material gain to induce a person to immoral action, or to turn him away from fulfilling his duty, or to forcefully determine in advance his will to action, which should depend exclusively on a moral impulse, then the order turns out to be immoral. But when it is clear from the will that the testator did not have such a goal and intention, but calculated his will and purpose only for this or that state of the person, in case it occurs, then there is no reason to consider the testator’s order illegal. The above difference will be explained more clearly from the following examples. The testator assigns 10,000 rubles to Ivan if he marries Marya. If this, according to the intention of the testator, should serve as a bait for marriage with Marya, then his will contains an indirect compulsion to marry. But the testator could also have had a goal that had nothing to do with moral compulsion, when he knew that Ivan had an inclination towards Marya and that due to Marya’s poverty the marriage could not take place. The testator assigns 10,000 rubles to his wife. in the event of her divorcing her husband: it is illegal if the intention is to strengthen her personal motives for divorce with the lure of monetary gain; but there is no immoral intention when the testator, foreseeing the possibility of divorce, wanted in this case to give the divorced wife, given the meagerness of her own means, an allowance in her separate life. Among the Romans it was considered immoral to impose a mandatory condition in case there were no children, si filios non susceperis; but it is obvious that there could be nothing illegal in this condition if, in the mind of the testator, childlessness was represented as nothing more than a random event that may or may not happen. Among the Romans, since the time of the famous Julius Law, any testamentary condition tending to leave a person in celibacy was considered prohibited and void, and therefore, if a monetary refusal was made in favor of the girl so that she would not marry, such a condition would be void. But it would not be illegal to assign money to a girl in case she, through misfortune, does not find a match for herself and remains unmarried. It is immoral to assign money to a person under the condition of changing his faith; but what would be essentially immoral if, for example, a friend of the famous priest Michaud assigned him a sum of money, bearing in mind that he does not recognize papal infallibility and must be excommunicated from his church and removed from a wealthy parish, become an Old Catholic and lose the means of support? (See on this subject Fitting’s article: Ueber den Begriff der unsittlichen Bedingung in Arch. Civ. Pr. 1873 Scheurl. V. d. Nebenbestimmungen. Erlang. 1871 § 79.) Drinevich bequeathed his estate to his nephews, and one of them, Nikolai, was assigned a larger part than the others, with the following, it is said, “the condition of my desire that he, after completing his course at the Tambov gymnasium, would enter the university at the Faculty of Medicine, complete the course with success and good behavior, and would be a physician; Until he completes the course, the houses bequeathed to him will be in the care of his mother, and he will receive from the income from 300 to 400 rubles. annually". Nikolai Drinevich, without completing the course, took up trade, as a result of which a lawsuit arose to cancel what had been done in favor of his appointment. The Senate (General Collection of 1871) deduced from the testator’s expressions that the predominant share was assigned to Nikolai Drinevich under an indispensable condition, which he did not fulfill, and then leaving the entire share in his possession would be contrary to the will of the testator, who gave him more for this very reason, so that he would become a physician. On this basis, Nikolai Drinevich was left only the right to an equal share with his brothers in the testator’s property. Fulfillment of duties, or legal determinations of the testator regarding the manner of use of property or its use, is generally obligatory for the successor, i.e. the person in whose interest the condition is established may demand fulfillment from him. There are, however, conditions and definitions that are not essential, which, having been set solely in the interests of the successor himself, do not impose on him a legal obligation, according to the purpose and intention of the testator himself. So, for example, if when assigning a cash payment it is said that the money is given - for a wedding, for the purchase of an estate, for building a house, etc., there is no reason to recognize this assignment as invalid for the reason that the subject person did not get married, did not buy an estate, etc., or to demand from this person the fulfillment of what is mentioned in the assignment. It will be a completely different matter if the money is allocated, for example, for raising children, because here we have in mind the interests of third parties in whose favor the assignment is made. § 67. Conditions limiting the right of ownership, possession and disposal. – The combination of lifelong ownership with the right of alienation and the right to elect an heir. – Examples from judicial practice The most important and most complex conditions placed in wills relate to the limitation of the right of ownership and its constituent parts and accessories, in the person of the person to whom the property is assigned. It is not always easy or convenient to determine to what extent these restrictions contradict the general law of property and patrimonial ownership. The right of ownership is assigned by law the value of an unconditional right; from here we can conclude that any condition or restriction that is essentially incompatible with the right of ownership is cut off from it as invalid. However, on the other hand, the general law allows restrictions on the right of ownership at the will of the patrimonial owner and the separation from him of the rights that are part of it: possession, use, disposal; therefore, it is impossible to deny that insofar as it is possible to establish restrictions on patrimonial right through a contractual agreement between the owner and an outsider, whom he admits to this right, insofar as restrictions are possible that come from the will of the patrimonial owner through a will. The difference here is only in person and in time: in the contract, limiting his patrimonial power and allowing the participation of others, the patrimonial owner retains the right of property in essence inviolable; in the will, he transfers after himself the right of ownership to another person with restrictions, and must also leave it essentially inviolable. So, for a correct discussion of the legality of all such conditions, it is necessary first of all to understand the meaning of the will of the testator, which is often obscured by the unclear, ambiguous and contradictory expressions of the act. What kind of right did the testator want to provide? Does it transfer ownership of the estate to the named person? In this case, the established conditions of ownership, use and disposal take on the form of restrictions, and it is necessary to judge whether these restrictions are consistent with the essence of the right of ownership, which the law understands unconditionally. Or did the testator, in his appointment, not intend to transfer his ownership right, but to separate from it a special right to own and use property on the stated conditions and transfer it to the specified person, and left the transfer of ownership right without a direct definition? To what extent the restrictions being established are against the general law of property, and this question cannot be resolved abstractly, by the logic of the law alone. Its resolution depends not only on the peculiarities of each legislation, but also on the special purpose that each legislation has in mind in establishing the law of property, and on the view of property prevailing in society. So, for example, French practice is not favorable to the condition - not to sell or mortgage the estate, because in French law, due to a special state idea, the desire to promote the fragmentation of property and their free circulation from hand to hand prevails. In our country, restrictions on the inheritance right to family property should be considered invalid, since this right seems unconditional in this case. The last clause must be made because in some cases it is possible by law to assign inheritance rights to family property in favor of a person who has the same inheritance right, and in these cases the condition does not have anything illegal in it. The case mentioned in Art. 1086. 1 part X t., is indisputable, because by this law extraditions from the family estate are directly recognized as optional for the heir. Within the meaning of Art. 1011. restrictions on the ownership and use of bequeathed ancestral property are not allowed. But from the following examples one can see in which cases there is no reason to reject the condition relating to the family estate. The father, having an acquired estate, and part of it a family estate, bequeaths the acquired estate to one son so that he will refuse to participate in the family estate, leaving everything of the family estate to the other children of the testator - brothers or sisters. Such a condition does not contain anything illegal, and to reject it, leaving the purpose of the acquired estate in force, would be extremely unfair and unfounded. When dividing his father's estate, a brother has every right to renounce his share in favor of his brothers or sisters, who are also equally heirs to it; and his father demands such a refusal from him - in favor not of a stranger, but also of his direct heirs according to common law. Consequently, the condition is correct, and the son must either submit to this condition or renounce the bequeathed estate. But let’s imagine a similar condition in favor of a further relative, for example, a cousin or in favor of the testator’s wife. It will be invalid, because it was established in favor of a person who cannot legally participate on an equal basis with the testator’s son in the general division of the family estate, not having the testator’s natural son with an inheritance right, therefore, the son’s refusal of this inheritance in favor of his cousin is impossible. And the wife of the testator also inherits after her husband only the specified portion, which must be allocated to her in a special number and measure, and inheriting not according to common law with the children of the deceased, she does not have the right to increase her inheritance, therefore, she does not take advantage of anyone’s refusal. About the note to Art. 1011 It should be noted that the restriction contained in it relates exclusively to the right of the testator, the first patrimonial owner, to determine the further transfer of the estate after the second patrimonial owner appointed by the will, i.e. appoint a third patrimonial owner to the estate, and also restrict the patrimonial right of this third patrimonial owner with restrictions on ownership and management. This law certainly refers to the third patrimonial owner according to the testator; but it would be unfair to extend the force of the prohibition contained in this law to the will of the testator regarding restrictions on ownership and management in the person of the second patrimonial owner, to whom the estate is granted directly from the testator. Others are inclined to interpret this law in such a sense that the testator, granting the estate into ownership, no longer has the power to surround the possession of the person appointed by him with restrictions that restrict his full ownership rights. The law does not allow only restrictions regarding the transfer of patrimonial rights upon the death of the second patrimonial owner, but for the entire duration of his life and ownership of the bequeathed property, it positively recognizes the right of the testator to oblige the chosen heir to perform certain duties, etc. And therefore, it seems beyond doubt that the rule of the note to Art. 1011. does not prevent the testator from limiting the full right of ownership in the person of his chosen heir with conditions regarding the possession, use and disposal of property, as long as these conditions 1) do not relate to disposition in the event of death; 2) were not incompatible with the right of ownership in its essence. So, when in doubt about the legality of such restrictions and when interpreting the will of the testator, one must take into account: firstly, what was the will of the testator and whether he truly provided the property to the subject by right of ownership; secondly, the restrictions established by the testator, if they relate to the ownership of the estate during the life of the chosen heir, are consistent with the essence of the property rights or are completely incompatible with it: in the latter case, only these restrictions should be eliminated as illegal. The right of ownership is accompanied by negative and positive restrictions, which are mentioned in Articles 432, 514 and 541. 1 hour X t.; therefore, the testator, by virtue of the fullness of his rights to the acquired property, can not only oblige the chosen heir with cash payments, for the duration of his life, in favor of third parties, but can also, for the duration of the life of this heir only, establish in the bequeathed estate for third parties the right to participate in use, the right of separate ownership, and may even restrict the chosen heir in the right to pledge and alienate the estate during his lifetime, by gift or compensation 102. He cannot only oblige the chosen heir to perform such actions, which are completely incompatible with the right of ownership, for example, he cannot oblige him to alienate property during his lifetime (for example, sell the estate or donate it to such and such a person). The obligatory nature of such actions is no longer compatible with the right of ownership. If we recognize them as obligatory for the heir, this would mean that the estate was bequeathed to him only for temporary possession, and not as a right of ownership; If the court recognized the latter, then it cannot, without falling into contradiction, recognize that the heir is bound by the orders that oblige him to alienate the estate. A. Shlyapina bequeathed a house to her grandson Malikov so that he would not sell, mortgage or transfer this house to anyone for 25 years, and if he went into debt, then the house should not be sold to satisfy them; after the death of Malikov, if he is childless, the house should go to his sister Kadmina. When, after the death of Malikov, who received this house, it came into the possession of Kadmina, she began to dissuade herself from Malikov’s debts, arguing that her brother, according to the will, was only the temporary owner of this house, and not the owner, for the mere right of possession or use, without the right of disposal, does not yet constitute the right of ownership. But the Senate, meaning 420, 423 and 432 art. Zach. The citizen recognized that the right of ownership of property can be limited in its disposal without losing its essential significance, and that Malikov was granted by will, albeit limited, the right of ownership of the house (Cass. decision 1869, No. 1334). B. The decision of the Senate (Cass. decision 1869, N 816) was recognized on the basis of notes. to Art. 1011, that acquired property can be bequeathed either unconditionally, or on certain conditions. The case was about a will, which bequeathed the ownership of capital so that the acquirer under the will, using interest, can dispose of the capital itself no earlier than 28 years of age. V. In the Medvednikov case (Collected Sen. Resolution II, No. 557), the Senate recognized that the testator could provide his property, consisting of movables and capital, to his children and assign them a certain period (until the arrival of the youngest son at the age of 25), until which time the property should be in their common indivisible possession, and general trade should be carried out on the capital. G. In the case of the Pronins (Collected Sen. Resolution II, No. 569), it was recognized that Pronin, having assigned his acquired estate to his young children, did not have the right at the same time to transfer this property to the unaccountable and indefinite disposal of his wife and the merchant Kozlov, with the right of pledge and sale, without, however, personally granting the latter either temporary possession or even the right to use the said property. D. Gavrenev wrote: “I provide all the property and capital to my sons in equal parts, but so that they cannot sell, mortgage, or alienate anything from it until the age of 35.” Until now, the will is legal, because the testator could limit the ownership of the heirs in the acquired property. But then he adds: “if one of the sons dies childless, my daughter Praskovya will inherit, and if she dies, her children will.” Although it was possible to interpret this increase in the following sense: “in the event of the death of sons before reaching the age of 35,” in any case, it is illegal, because the testator, having once determined that the ownership of the estate passes upon his death to the children, could not then, in the event of their death, determine the further transfer of the estate (Collected Sen. Resolution II, No. 683). But the testator could have achieved the same goal if he had expressed his will in a different form and used different expressions. For example, he could say: I provide the estate to my sons for temporary and limited possession until each of them reaches the age of 35. If, with the onset of the 35th anniversary of the birth of each of them, he himself is alive or the children left after him are alive, then he himself or his children are given a share of each of them as property; if neither himself nor his children are alive, then it will be given to my daughter Praskovya as property or, after her death, to her children. E. In the case of Kalistratova (Collected Sen. Resolution II, No. 948), the testator, assigning a dowry to his daughter, decided that all other property should then belong to the inheritance of the other children. The daughter challenged her exclusion from inheritance in the other family estate, but at the same time demanded the dowry assigned to her. The Senate decided that if she recognizes her father’s will regarding the dowry as valid, then she must submit to another condition expressed in the will, i.e. renounce other inheritance; or, if he refuses the dowry, he may demand the allocation of the inherited part. Rule 1029 Art. Zach. Citizen This does not apply to this, for the purpose of the dowry depends entirely on the will of the parents. Zh. Shchukin bequeathed his capital (according to tickets) to his son with the understanding that he should take full control only upon reaching the age of 40, and until then he would enjoy interest. The son, before reaching the age of 40, died and left those capitals in his will to a third party - Ivan. The question is: is Ivan constrained in his right to those capitals by the restrictions that were established by the first testator, i.e. is he obliged to wait for full disposal rights until the day when Shchukin’s son, if he were alive, would be 40 years old? They answer: not obliged, and thoroughly. If only it is recognized that according to his father’s will, the capital was assigned to Shchukin’s son, then it must be recognized that force is not a factor. to 1011 Art. the estate bequeathed by Shchukin became hereditary to his son and after his death could not be subject to the arbitrariness of the first patrimonial owner either in the order of transfer or in the order of management. There is no reason to believe that this rule is approx. to 1011 Art. refers exclusively to immovable estates and that the expression “in the category of hereditary” used in the article means only estates that can receive the property of a family estate. In this sense, the matter was decided by the Senate (2nd General Meeting, January 1870). The Senate decided, among other things, that from the expressions of the testator: “I leave my sons in possession; the capital bequeathed to him; keep on their behalf” one cannot help but conclude that the testator did not intend to deprive his sons of ownership of the capital; the restrictions he imposed on the heirs do not contradict the requirements of the law, and the testator only exercised the right to establish for the heir one or another method of ownership and use of property. Z. In the will of gr. Buksgevdevna decided: 1. His youngest son will take full control and possession of the bequeathed estate only when he marries and has children; Until then, the estate must be managed by the person appointed by the testator. 2. Both sons and their legal heirs up to the 3rd generation have no right to sell or mortgage the bequeathed estate, and this right will belong only to their great-grandchildren. 3. If after the death of their sons their wives remain childless; then the remaining heirs should pay each of them 50,000 rubles. assign. The Senate found that all these orders were contrary to the laws; the same was confirmed by the State Council (in 1813). I. By the will of gr. Zubov's estate was given to her son with the understanding that if he had children or grandchildren at his death, then the estate would be given to them as their property after him, but if he died childless, to the young Sazonov. The Chamber interpreted the will in the sense that the estate was assigned to the ownership of gr. Zubov, and on this basis canceled the subsequent orders of the testator, as disagreeing with the note to Art. 1011. In his will of 1811, J. Olonkin appointed his wife Nastasya as guardian and owner of the entire estate; removed his son Peter from inheritance; after the death of Nastasya, he assigned part of the estate to his grandson from his daughter, Ivan Demyanov; and the rest to the grandchildren, the sons of the son of Peter, if they are alive, with the exception of the daughters of Peter. If Ivan Demyanov dies before reaching adulthood, then his entire share should go to the sons of Peter Olonkin, and when there are no sons, then to his daughters. If Ivan Demyanov reaches adulthood, and Peter Olonkin has no living sons, then the entire part assigned to him goes to Ivan Demyanov. – By virtue of this will, Peter Olonkin’s son Ivan, after the death of Nastasya, received the estate assigned to him, but died childless, as a result of which Ivan Demyanov began to demand this estate on the basis of the same will. Due to disputes that arose against this between the sisters of Ivan Olonkin, the Senate in 1861 destroyed the order of the testator, contrary to Art. 1011. Zach. Citizen and the Lopukhinsky decree, recognizing, among other things, that the rule of the Lopukhinsky decree, issued in 1839, is not new, but constitutes a confirmation and explanation of previous laws and therefore should be applied to the will drawn up in 1811 (see Journal of the Ministry of Justice 1861, No. 11). Lifetime or fixed-term ownership is represented by a will in two forms. It can be established by the testator without any consideration of the patrimonial rights of other persons to the same estate or in connection with such consideration. In the first case, the testator does not determine at all to whom the estate should pass upon the death of the lifelong owner or upon the expiration of the term (the law specifies in this case the transfer of the estate to the testator's legal heir). In the latter case, the testator indicates exactly to whom the estate should become the property and who, therefore, the temporary owner must recognize as the heir, the second patrimonial owner under the testator. As soon as the will of the testator in this sense has been determined beyond doubt, then any conditions and restrictions that are incompatible with the legal relationship of the temporary owner to the patrimonial owner, which certainly follows from the main will of the testator, must already be eliminated. Due to this relationship, it is impossible to allow that the temporary owner, seeing the direct patrimonial owner of the estate, could, with his patrimonial right, squander and alienate the temporarily owned estate. And therefore, if the testator, having directly indicated the person who appoints heir to the estate, and another person to whom he gives the same estate for lifelong possession, granted this last person the right to mortgage, sell, donate this estate, then it would be necessary to conclude from this - either that the testator essentially granted full patrimonial rights to the one whom he named as the temporary owner, or that the granting of full patrimonial rights, with another obvious patrimonial owner, is incompatible with lifelong possession and must be removed as illegal. So, if the court does not accept the first reasoning, according to the meaning of the will, then the second must certainly be accepted. It is a different matter if, according to a will, the estate is given for lifelong possession to one person and no other heir is appointed: it happens that in such cases the testator of the lifelong owner, who is not granted direct ownership rights, authorizes the mortgage and sale of the estate, at his discretion, or in case of need. At first glance, such an order seems strange, because lifelong ownership in itself is not consistent with the right of alienation, which constitutes an accessory to the right of ownership; but such an order in the present case will not be illegal. The owner remains a lifelong owner, because full ownership rights are still not granted to him, in the sense that he cannot dispose of the estate in the event of death: he can, if necessary, sell the estate during his lifetime and thus exhaust the fullness of the patrimonial power granted to him; but if he did not do this, then the estate, upon his death, completely departs from his person and becomes an inheritance - to whomever follows after the testator. The testator undoubtedly has the legal opportunity to separate from his ownership of the estate one or another of its component parts, or to make up a more or less complete combination of these parts, and to grant such a composite right at his discretion to an elected person, as long as this assignment does not violate anyone’s property rights. In the present case, since the testator did not appoint anyone as his heir, he did not violate anyone’s right, for the right of his legal heirs exists after his death only to the extent that the testator did not reject or limit this right with his will, and in the present case the testator - to the extent that he strengthened the right of the lifelong owner - weakened and conditioned the alleged right of his legal heir. The latter, by virtue of the will, cannot object to the pledge and sale of the estate by the lifelong owner and has the right to claim this estate upon his death only if it remains unalienated at the death of the lifelong owner. The possibility of such a testamentary disposition is also permitted by our law. It is in the decree of 1814 (P.S. Zak. N 25606) that it is assumed that lifelong ownership of a spouse is possible under a will, with the right to mortgage and even sell the estate. It is stated above why it is necessary to recognize as illegal the addition to lifelong ownership of the right to mortgage and sell an estate granted to another; It is assumed in this case that the testator clearly and unconditionally granted to one person after himself the right of ownership of the same property that he authorized another to sell at his discretion. But testamentary dispositions of this kind are also possible: I bequeath the estate for lifelong ownership to Ivan, with the right to mortgage and sell it, or any part of it during his lifetime, so that upon the death of Ivan, everything that remains from this estate unalienated will become the property of Pavel. There is no contradiction between the rights to the same property that was noticed in the above case. There, the right of ownership of a direct heir under a will arises at the moment of the death of the testator and extends to the same property that was given to another for lifelong possession. Here, according to the terms of the will, the right of ownership of the heir arises and its subject is determined only at the moment of death of the lifelong owner, so that until that minute the chosen person does not yet have a valid right to any part of the bequeathed property and cannot prohibit, in the person of the lifelong owner, any disposal of this property, except for a testamentary disposition. Consequently, in this case, the coexistence of both rights is possible, and our laws do not provide grounds for recognizing such a relationship established by the will of the testator as illegal. The right of ownership is compatible with restrictions on possession and disposal that have a temporary and conditional meaning, but incompatible with restrictions that have the property of being unconditional and permanent. Therefore, I can transfer my estate to the heir as a property, moreover, depriving him of the right to pledge and alienate this estate during his life; but they cannot deprive him of his testamentary right to this estate. I can place a charge on this estate in favor of a third party, but so that this charge has the property of a temporary right in someone else’s estate, such as: rights of land, rights of participation in someone else’s property, etc. If this duty, by its nature and by the intention of the testator, constitutes an independent patrimonial right, or alienation of property rights, I am not deprived of the right to directly grant this right by testamentary act to a third party, but I cannot oblige my heir, to whom I grant the estate into ownership, so that he himself establishes this right in favor of a third party or that he himself and his successors allow and tolerate this right without limit. For example, the law stipulates that a neighbor's right to install windows onto an adjacent yard or onto an adjacent roof constitutes an assignment of property rights. Leaving my house and yard to my son, I can, by will, grant my neighbor such a right, i.e. right to participate in property; but if I bequeath a house to my son with the condition that he must allow his neighbor such participation, this restriction is valid only for the life of my successor, and if my successor refuses to transfer this right to the neighbor definitively by serfdom (446 Art. Civil Law), the neighbor cannot force him to do so on the basis of my will. If, with the right of lifelong ownership, the testator also grants the owner the right to transfer the estate upon his death at his own choice and discretion (this decree is most often placed in the wills of husbands, leaving estates to their wives with the right to transfer it to children of their choice), this last right is inappropriate and inconsistent with the law, because it is impossible to transfer to a lifelong owner a testamentary right that belongs only to the owner. Can a testator, without appointing an heir to his estate, allow the election of this heir to another person, at his discretion? Such orders are often encountered: most often it happens that a husband, assigning an estate to his wife for lifelong ownership, allows her to transfer this estate during her lifetime or upon her death into the ownership of one of her children or relatives whom she recognizes as worthy. In such a case, the testator’s order cannot be considered legal. According to a will, the inheritance from the testator passes directly to the person chosen by his will. The testator cannot establish a mediocre inheritance, and cannot transfer his testamentary power to anyone for himself by trust or authority. If the intermediary person indicated by the testator receives the property as acquired property, then by virtue of the right of ownership, the testamentary right and, in general, the right of alienation and disposal are transferred to him by virtue of the right of ownership, and in general the right of alienation and disposal, regardless of a special resolution to this effect in the will of the first patrimonial owner. If the specified intermediary person receives the estate only for temporary possession, then granting him the right to transfer, donate or bequeath the estate - on behalf of the first testator - is unthinkable. It is even less possible to allow a third party, who does not even receive possession of his estate under a will, to be granted the right to elect a testator to this estate. The above applies entirely to hereditary purposes, i.e. to the case when the testator directly chooses a successor for himself in the mass of his property, or in a known whole estate. But a special type of testamentary assignment is, according to the law (note to Art. 1011, 1086), the assignment to different persons of distributions from the property mass provided to the chosen heir. In such a case, the estate is directly transferred to a known person (the heir under a will with an order or with an obligation to give out of this estate, or at the expense of the value and income, his known thing, or a certain value to another person on behalf of the testator). Here, although the gifted person acquires from the testator and under the will, but not directly, and in order to exercise his right to the bequeathed property, he must turn to the one to whom the subject property passes into power under the will and to whom the testator has assigned the duty of execution or delivery. Thus, by the will of the testator, a relationship arises between two persons, one of whom, by virtue of the will, has the right to demand, and the other is obliged to execute the testator’s order regarding the transfer or extradition. This order, like the election of a direct successor, can be either unconditional or conditional. In the latter case, the condition of the transfer may be associated either with a period, or with a possible event, or with an action possible for the gifted person, or even with the discretion and choice of the one whose duty is entrusted with the transfer. The same objections to legality that can be made against conditional hereditary assignments do not apply to such an appointment, since there is no direct, immediate transfer from the testator to the person in whose favor the appointment is made. The estate, in its known composition as a mass, passes directly from the testator to the chosen heir, only with a certain duty; and this heir is considered the owner of the whole, with the obligation to separate from the mass a certain thing, or to pay into the account of the mass a certain value to the subject. From the death of the testator, this latter person is not considered the owner of the bequeathed thing or value (similar to a direct heir or successor under a will), but receives the right to demand allocation, delivery or payment from the specified person, on the condition set in the will. From this point of view, possible, i.e. The following orders should be recognized as non-illegal: I bequeath the estate to my brother Ivan so that ten thousand rubles will be paid from this estate to the children of my other brother Peter, when they reach adulthood. I bequeath the estate to my sister Praskovya on the condition that if my son Ivan has children, I would give each of them 200 rubles for their maintenance and upbringing. annually, and upon reaching adulthood, I would give each person 5,000 rubles at a time. I bequeath the estate to my niece Anna so that my grandson Ivan, if he turns 17 years old and is diligent in his studies, will give my library, and otherwise I would give it to the benefit of the school. Does the owner of an acquired estate, bequeathing a part of it to a person to whom he owes it, have the right to exempt this person from taking into account a proportionate part of the debt as an inheritance and assign responsibility for this debt exclusively to the heirs of the other part of the acquired estate? For example, Ivan bequeaths the acquired village of Pokrovskoe to Marya, mentioning that he owes her 5,000 rubles, and at the same time decides that all this debt must be paid to her by Peter, who is assigned another acquired estate, the village of Semenovskoe. Peter has no right to object that a proportionate part of this debt should fall to the share of the creditor Marya herself, since she is also an heir after the testator. In this case, the testator Ivan was free to allocate to everyone at will, and his will is that, in addition to the assigned estate, he gave Marya that part of the debt amount that would be subject to hereditary repayment, and assigned Peter the estate with duty to pay Marya the entire debt amount, and the testator had the right to both by law; but if the village of Semenovskoye was a family village, then this order of the testator would not be binding on the heir, under the force of Art. 1086. Zach. Citizen, and Peter would have the right to demand that Marya take upon herself a proportionate part of the satisfaction in her debt claim against the testator. The condition that the heirs, no matter how many there are, remain in undivided ownership of the property cannot, it seems, be considered mandatory. Although the continuation of common and undivided ownership depends on the will and general agreement of the co-owners of the property allowing division, in no case can it be obligatory for them, because according to the law, the desire expressed by one of the co-owners is sufficient to initiate division. Consent (like trust) is a state of will that cannot be forced or made mandatory, and the right to demand an allocation from the common property is an essential accessory to the right of common property. There is no doubt that the conditions established in the will cannot violate the rights of third parties that do not depend on the testamentary purpose. These are the rights of creditors not only of the testator himself, but also of the heir under the will to satisfaction from the bequeathed estate. Is it possible for a testator to decide that the bequeathed estate should not be used to satisfy the debts of the successor under the will, made before the acquisition of this estate? Others believe that it is possible (this is the opinion of the French lawyer Trolon); but we can hardly agree with this opinion, especially since our law does not know the French institution of séparation des biens. An estate passed by inheritance becomes the property of the heir, who is responsible for all his debts that require satisfaction whenever this estate is acquired by him. Upon acceptance of the inheritance in the person of the heir, responsibility for the representation of the deceased is inseparably combined with responsibility for the personal debts of the successor himself, and collection of personal debts, from the moment they are opened, can be applied to the estate of the responsible person, whichever he has in hand. The basis of the creditors' right to the property newly acquired by the debtor under a will is not acquired by them again and does not depend on the will of the deceased testator. Their right exists in itself to be satisfied with the amount of the debt, and the means for satisfaction is all the property of the debtor. § 68. Restrictions on the right to challenge a will Can a testator unconditionally deprive the legal heirs of their rights to challenge the will? A will is a legal declaration of the owner’s will regarding his property in the event of death (Article 1010 of the Civil Code). The testator has only what he has the right to, to which he can relate as owner, owner or possessor. The power of the testator in no case extends beyond the limits of his civil rights; In the sphere of state rights, the will of a private person is invalid. In the sphere of civil law, it is valid only to the extent that it covers objects subject to the will. The right to someone else's property, the right to actions of persons may belong to a citizen either by agreement, or by special relationship established by law. Where neither one nor the other exists, the testator cannot establish his own law of his own free will to restrict the civil freedom of another person, to deprive him of such rights that he enjoys by virtue of the general law, regardless of the will of the testator, in the field of civil rights. Every action of a citizen is considered legal or illegal to the extent that it is consistent with the prescription of laws or violates them, and not to the extent that the person committing the act considers his action to be legal or illegal. The measure of legality here is the law itself, the public will, and not the personal will of a private individual. If for some reason this action may have an impact on the civil rights of third parties, then with its commission an inalienable right arises for each of these persons to refute this action, prove its illegality and ask for its destruction. From here it is clear that no testator can, as part of a will, prohibit someone whose rights are openly or covertly, indirectly or directly violated by this will, by filing a dispute against him. The right to claim an inheritance after a deceased owner belongs inalienably to each heir by virtue of the general law: when seeking an inheritance and encountering an obstacle in the will of the deceased, the heir, if he considers it incorrect, can, according to the same law, prove in court the invalidity of the will and ask for its destruction. So, there is no doubt that the testator cannot unconditionally deprive his heir of the right to challenge the will. Doubt arises when the testator, leaving no place for legal inheritance in his estate, assigns a part of it to a person who, in the absence of a will, would be the rightful heir, furthermore imposing on this person an indispensable obligation not to start a dispute for fear of deprivation of the bequeathed share of the estate. A, having named his estate as acquired in his will, assigned one half of it to a stranger B, and the other to his son Ivan, who without this will would have been the only heir after him. The will stipulates, among other things: “I resolutely forbid my son Ivan, under any pretext, to challenge this will. If, in violation of this will of mine, my son brings a dispute against him, then he will thereby be deprived of the right to any participation in my inheritance, and the part of the estate now assigned to him will immediately have to go to B.” After the death of the testator, his son filed a dispute against the will, proving that the estate named in the will as acquired was ancestral. Objecting to this, defendant B argued in court that the dispute itself was not subject to acceptance by force of the will. The court recognized, however, that it was impossible to reject the dispute and accepted it for consideration. At the end of the case, B, for his part, filed a claim in court to obtain from Ivan A, as punishment for the dispute, half of the estate assigned to him by the testator, and to grant it in favor of him, the petitioner, by force of the will. Is such a requirement subject to satisfaction? Let us assume that by the previous court decision all bequeathed estates, without exception, were recognized as family estates. In this case, B is deprived of any right to a reverse claim for the reversion of his inherited share from Ivan A. The entire estate, as a family estate, must go to the legal heirs, and no one’s rights to this estate, if based on a will, can be valid; Any order of the testator regarding the family estate made by the legal heirs is considered invalid, therefore, the reverse claim of B should not be accepted: it is destroyed at the very basis by the essence of the decision that was made at the claim of the legal heir. It may happen that, by a court decision, half of the estate bequeathed to third party B is recognized as ancestral; but the other half, bequeathed to the legal heir, Ivan A, turned out to be beneficially acquired. The testator's order to grant the family estate in favor of B was destroyed, but the court did not mention in its decision that along with this the force of the prohibitory clause (clausula poenalis) placed in the will was also destroyed. Plaintiff B, who has lost an estate in court that was bequeathed directly to his name, may still consider himself entitled to seek from the possession of Ivan A the other half of the estate, bequeathed to his name A, as punishment for the dispute. The court does not reject such a claim without consideration: the prohibitory clause of the will exists in full force; it is not covered by the previous court decision, and it is still necessary to consider whether the will of the testator is not subject to execution in this regard? And he did not have the right to leave a will on the family estate in favor of a stranger. Family estates are not subject to will (Article 1068), i.e. not only are they not subject to decisive alienation in favor of an alien, but even to such orders that, without affecting the right of ownership of the estate and the order of inheritance, restrict the legal heirs from freely disposing of the family property that followed them according to the law. So, if the testator prohibits his legal heir from searching for property bequeathed to a third party, which by its nature belongs to the category of patrimonial property, then this order is illegal and invalid. If the prohibition is invalid, then the penalty imposed for violating this prohibition cannot be considered valid. In the previous examples, the prohibition applied to the family estate. Let us imagine a third case: when it related to acquired property. The dispute brought by Ivan A regarding his father's will was refuted by the courts, and the entire bequeathed estate was recognized as acquired. The testator had the right to dispose of the acquired property at his own will, and plaintiff B bases the legality of his reverse claim on this circumstance. It cannot be denied that the testator has the right to provide his acquired estate to his chosen heir under the condition: he cannot demand from him actions that are illegal, but he can demand that his heir, if he wants to keep the estate, refrain from legal or permitted actions, as long as these actions do not constitute his direct responsibility. More precisely, A could not unconditionally deprive his son of the right to challenge the will, but could decide that in such a case the son would only receive part of the acquired estate if he did not argue. The testator did not want all his acquired property to go to his son and divided it between his son and a third party: he had every right to do this. Thus, Ivan A, in relation to the bequeathed estate, was no longer represented as a legal heir, but as an heir under a will, therefore, he was in the same position with B, whose rights were also exclusively based on the will. Ivan A could get out of this situation only in such a case if the testamentary disposition was recognized as void and the testator’s estate was recognized as family property; For this purpose, he began a dispute in which, rejecting one less advantageous basis for his rights to his father’s estate, he wanted to acquire another, more advantageous basis. In order to become a legal heir, the plaintiff had to renounce the will and recognize it as void; and the testator announced that for this violation of his will his son would be deprived of the bequeathed estate. Whether such a will of the testator is correct can be resolved not before the end of the very dispute that was prohibited by the will, the dispute about the property of the bequeathed property. So, if the disputant has succeeded in his search, then, along with the testamentary disposition of the family property, the condition set for its acquisition also becomes insignificant: the legal heir acquires this property by force of law, bypassing the will, unconditionally. No one has the right to oppose the will of the deceased, which has been declared illegal. But if the dispute is rejected, then the position of the accused plaintiff changes significantly. He did not prove his rights to his father's estate as a legal heir; the bequeathed estate turned out to be acquired, the will received indisputable force - one of the conditions of the will deprives the disputing heir of any right to the acquired estate, and there is a person who has the right to demand that this condition be fulfilled. This requirement cannot be refused, because the testator cannot be constrained in the free disposal of the acquired property. It may be objected to this that it is strange, on the one hand, to allow a dispute over a will against the will of the testator, and on the other hand, in fulfillment of the same will, to punish the plaintiff for this dispute in case of failure. But in essence there is no contradiction here. It is impossible not to allow a dispute when it comes to determining the legality of that very order, part of which is a prohibition; but as soon as this order is recognized as essentially legal, it is impossible not to recognize its executive power at the request of the interested party. Let us assume that the testator, assigning the estate to the legal heir, forbade him to present, for example, a loan letter from a third party for collection with the fact that if he violates the prohibition, he must lose the bequeathed estate in favor of this debtor. Here, an unconditional prohibition is also invalid, but there is no doubt that the estate is bequeathed conditionally and that the duty imposed by the testator must be fulfilled. But if the heir, having received the estate, presented the loan letter for collection and at the same time began to challenge the legality of the testamentary disposition, then the execution of this disposition would necessarily stop until the dispute was resolved. Until now, we have been referring to the heir’s dispute regarding the legality of the testator’s orders themselves. But in addition, the heir can, without touching the substance of the testamentary dispositions, challenge the external dignity of the will, prove the falsity of the act or claim that it is invalid due to non-compliance with the established forms. If in these cases the dispute of the heir (Ivan A) is rejected, is he deprived by virtue of the will of the right to the acquired property bequeathed in his favor? In these cases, there is no reason to recognize the heir’s dispute as a violation of the will of the testator. It is impossible to talk about a violation of the will where there is still doubt that the will is really expressed. The legal declaration of the owner's will for his property in the event of death is expressed in the form of a will. The form of this act is so closely related to its content that, if the former is not observed, the act loses all its force and cannot be recognized as a genuine expression of the will of the deceased. Moreover, the circumstances surrounding the drawing up of the act, and regardless of its form, can raise doubts about its authenticity, the assumption of its falsity; then the interested parties have the right to demand research into the alleged falsity of the act. And in this and in another case, the plaintiff argues not against the will of the testator, not against the will in the proper sense - he does not demand the destruction of the orders made by the testator, but asks for the destruction of an act that does not at all recognize, or does not dare to recognize, as a will. Whatever the outcome of the court proceedings in such a dispute, it is obvious that a violation of the will of the testator can only be discussed from the moment when this will became doubtful, when the act acquired the actual meaning of a will. A similar issue was before the State Court. Sov. in 1873 in the villages of Krivosheina and Kryukovskaya, and received permission in the above sense. In the Turchaninovs’ case, it was clarified that Art. 1301 Part I of X t., establishing the irrevocability of the alienation or pledge of an estate, fully applies to the sale or pledge made by an heir under a will approved indisputably, when this will is subsequently challenged and refuted (Cass. decision 1894, No. 5). § 69. In what cases does a testamentary disposition lose its force and effect? – The right of increase between many successors of one estate A testamentary disposition loses its force and effect: 1. When it is illegal and therefore subject to destruction (1029 Art. Zak. Gr.) 103. 2. When it is devoid of meaning, so that it is impossible to determine either the object or the image of execution. Although there is no general rule in this sense in our laws, it necessarily follows from the necessary properties of each legal act. Our law states that wills made with an obvious mistake in the person or in the property being bequeathed are invalid. 3. When the person in whose favor the assignment is made dies before the death of the testator. There is also no positive rule about this in our laws, but it is a direct conclusion from the essence of the testamentary act and testamentary succession, and therefore is applied in our judicial practice (see J. M. Yu. 1866, vol. I, p. 507; Cass. r. 1873, N 201). A will gains force and effect only from the time of the death of the testator; Until that time, no one’s right based on the will is revealed and does not have the slightest significance; Consequently, the one in whose favor the assignment is made, at his death, not having any right to what was bequeathed, cannot transfer any right to his heirs. And when after that the testator himself dies, then the assignment, not finding the person in whose favor it was made, falls and cannot be transferred to the heirs of this person, even if they are not mentioned in the will. In inheritance, according to the law, there is a right of representation, i.e., what would have gone to, for example, a son when he was alive, passes, upon his death, to his son - but not from the father, but from the grandfather, after whom the inheritance opened. There is nothing like this in testamentary succession, which is based not on the law of direct succession by blood, but on the will of the testator. To whom it is appointed, it is given to him, if he is present, and when he is not present, the appointment is lost. Therefore, if, for example, the property is bequeathed by an uncle to three nephews all together: Peter, Ivan and Gregory, and at the death of the testator Gregory is not alive, but his children are alive, then the children have no inheritance in the bequeathed property, and all the property passes to Peter and Ivan: Gregory’s share after his death goes in addition to the shares of his brothers. But the successor, even if he survives the testator, does not always acquire by will a decisive right to the bequeathed property, but acquires only a conditional right, or the right to expect and demand at a designated time, or with the occurrence of a foreseen event. If, having accepted the right in this form, the successor does not live to see its decisive implementation, can he transfer this right to his heir in the same form, with the same possibility or probability of implementation? Here it is necessary to distinguish between two types of conditions. 1) By the will of the testator, the acquisition of property or its transfer into the ownership of the specified person may be made dependent on an event that is not certain, but only probable, which may not happen at all. For example, Ivan instructs his executor to transfer 10,000 rubles into the property of Peter when he reaches 30 years of age or when he gets married. Only with the onset of this event does the money become the property of Peter; before that, he has only a conditional right to this money, only the right to demand it upon the occurrence of a specified event. Peter died before he could exercise his right, because the agreed upon event did not happen at all; with his death it became impossible, therefore, the right under the will granted to him disappeared without a trace, so that he had nothing to transfer to his heirs. 2) By the will of the testator, the transfer of property is made dependent on a certain period or on an event that must certainly occur. For example, the testator instructs the executor to transfer 10,000 rubles to Pavel. 3 years after the death of the testator. In this case, with the death of the testator, the successor receives the right to the bequeathed property, which must certainly be fulfilled; therefore, dying before the fulfillment, he has something to transfer to his heir. These rules are positively defined in foreign legislation. Our law does not contain them, but in our country, without a doubt, they can be accepted into practice in practice, since they flow from the essence of testamentary succession. 4. Obviously, if the bequeathed property was not in his possession at the death of the testator, then the testamentary purpose also falls. If there is no one to blame for its misappropriation or theft, then it must be assumed that the testator himself disposed of this property during his lifetime, and therefore, in fact, canceled his appointment. If the bequeathed property is destroyed, destroyed, lost without a trace after the death of the testator, then the assignment also loses force, if there is no one to blame for the waste or destruction. 5. Without a doubt, everyone is free to refuse to accept bequeathed property if he considers it inconvenient or unprofitable for himself, and in this case the testamentary assignment loses force. 6. The appointment loses force if the person in whose favor it is made turns out to be legally incapable of accepting or acquiring the will. This inability may be personal, by law, or by the meaning of the condition with which the acquisition is connected (for example, if money is bequeathed to a person in the event of his marriage, and already at the death of the testator it turns out that the subject person is legally or physically incapable of marriage). 7. A testamentary disposition loses its force when the testamentary act in which it is contained is declared invalid or has lost its force due to the expiration of the zemstvo prescription. Anyone who has not asked for the will to be put into effect within 10 years, without having taken possession of the willed property, according to the general law, loses the right to claim property on the basis of the will. Doubts may arise about when the right to this claim begins and from when the beginning of the zemstvo prescription should be calculated. Others believe that the beginning of limitation should be calculated from the date of death of the testator, since in general from that time the right to inheritance under a will is considered to have opened (cf. Cass. R. 1869, No. 1032), but the opening of the right to inheritance cannot in this case be confused with the opening of the right to claim. In the first sense, the minute of death of the testator is important because by this minute (as in inheritance by law) the successor under the will can build his rights to the inherited property, but this rule is not unconditional, because it does not apply to all cases of testamentary refusals (see. below § 72). However, a will, as an act expressing the last will, does not yet receive legal recognition or legal binding force with the death of the testator. It acquires this power only from the time it is certified as authentic. So, a claim under a will becomes possible only from this moment, and therefore no earlier than this the limitation period for bringing such a claim should begin (cf. Cass. decision 1872 No. 1223). Not earlier: but it may be later, since, according to the special conditions of testamentary renunciations and assignments, the right of action for the interested person may not be connected with the entry into force of the will, but may be delayed until a certain date or event (cf. § 72), so that in each of such cases it is necessary, based on the property of the testamentary assignment or with its special condition, to determine from what point the right of action opens and the limitation period begins. When an order placed in a will turns out to be invalid upon the death of the testator, the question arises: who should own the property or value that was the subject of this order? The issue is resolved only partly by our law. In 1110 art. Zach. Gr. it is said: the inheritance passes to the heir by law when the testamentary dispositions are declared invalid. This article refers primarily to the will in its entirety. If the will is all declared invalid, then the estate goes to the heirs according to law. Further, this article can undoubtedly be attached to a separate testamentary assignment when, within the meaning of the will, it is made independently of other assignments and relates to separate property. The testator assigns one estate to Ivan, another to Peter; the first appointment remains in effect; the latter, for one reason or another, is invalid and cannot be realized. It is clear that the estate assigned to Peter remains outside the will of the testator, and therefore follows the will of the law - it goes to the heirs of the testator. Our legislation does not go further than this simple beginning, expressed in Article 1110, and this is understandable, for our law does not make a distinction at all between the appointment of an heir to an estate and the assignment of property in favor of different persons (inst. heredis and legatum); even less distinguishes refusals from each other according to their qualitative and quantitative significance in the mass of the entire inheritance and in the intention of the testator. However, such a difference, arising from the essence of relations, raises questions and disputes about law that require resolution. It is not difficult to decide that a separate estate assigned to an individual, if it cannot pass to him by the will of the testator, passes to the legal heir. But what if the estate is assigned to several persons together, collectively, and the assignment turns out to be invalid only in relation to one of these persons? Here a competition of rights is possible, and if the heir by law would demand for himself the remaining part of the total assignment, those persons for whose benefit it was jointly made may object: the will of the testator was to give the estate to us all collectively. What to do if the estate is assigned to one person with the imposition of monetary payment, allocation or duty in favor of another person, and it turns out that the assignment in relation to this latter person is invalid? Here, the heir by law, even if he presented his claim to the property or value that was the subject of this subordinate assignment, it would be objected to him that he does not have the right to substitute himself in place of the one in whose favor the assignment was made, and as an heir by law, he cannot remove the one to whom the property was bequeathed with the assignment of responsibilities to this property, and that the removal of the responsibilities should be in favor of the one who received the property. To resolve many such issues, Roman law developed a systematic doctrine of accrescentia, accroissement of hereditary and testamentary inheritances, i.e., the right of a partner in an hereditary succession or in a testamentary assignment to take advantage of the share of another partner when the latter is unable or unwilling to accept it 104 . Without going into the intricacies of this doctrine, which aroused a great many complex disputes in legal casuistry, I will cite two main guiding rules on this subject, adopted in foreign legislation and in legal practice. The basis of accretion is the joint and indivisible calling of several to succession in the same property and in one inseparable purpose. It follows, firstly: when, out of several appointments assigned to one property, one appears to be the main and main one, and others in connection with it appear to be subordinate and dependent (such as, for example, issuances and refusals from property assigned to the specified person), then the subordinate appointment, if it falls, becomes part of the main appointment: therefore, the successor, who, along with the succession, was entrusted with the execution of subordinate appointments, enjoys the profit from the elimination duties assigned to him. Secondly: when property is assigned to several persons together and collectively without any division, the invalidity of the assignment in relation to one of the partners turns into a benefit for all others; but if it is clear that the intention of the testator was to assign each of the co-participants his share or to determine the inheritance of each by some qualitative or quantitative sign, then there is no increment, and the special inheritance of the retired participant becomes outside the testamentary right. Both of these rules seem so clear and directly follow from the essence of testamentary law that they can, without violating the law and the principles expressed in it, serve as a guide for our legal practice. Take, for example, the following case. The mother bequeaths the estate to her four sons: Ivan, Peter, Fyodor and Grigory, so that each of them would own a fourth part in that estate, but Grigory died before his mother, leaving two sons - Pavel and Kuzma. After the death of the mother, how can all these persons fairly divide the estate? Pavel and Kuzma cannot receive the entire part assigned in the will to their father Gregory, because Gregory’s rights to 1/4 of the estate are based on the will, and the will in relation to him did not take place, for he died before the testator. But it would be unfair to turn this fourth part of Gregory exclusively in favor of his other three brothers, for the testator directly expressed her will that each of their brothers should receive only 1/4 of the estate. So, this fourth part remains outside the will and is addressed to the heirs by law, dividing again into 4 parts, of which three go to Ivan, Peter and Fyodor, as direct heirs, and one fourth will go to Pavel and Kuzma by right of representation for their deceased father Gregory. So, during the division, if the price of the entire estate is put at 16,000, Ivan, Peter and Fedor will receive 5,000 each, and Pavel and Kuzma together will receive 1,000. When discussing the legality and validity of a testamentary disposition, it is necessary to take it in its entirety and in the necessary connection in which it is determined by the will of the testator in order to decide whether this will, in the sense as it is expressed in relation to the entire disposition, agrees with the law. But it would be unfair to dissolve individual parts of the whole order, which are interconnected with each other, and discuss each separately. It sometimes happens that one of the components of an entire order turned out to be, regardless of the will of the testator, impossible to execute and actually lost its interest: in this case, it would be unfair to recognize this part as if it were completely non-existent and then to assign independent significance to another part of the same order, inextricably linked with the first. This would mean arbitrarily distorting the will of the testator, giving it in its implementation a meaning completely different from what it had in the mind of the testator; it would mean applying the standard of the law not to the true will of the testator, but to an arbitrary conclusion from this will. Here's an example. Ushakov bequeathed his estate to Alexandra Izosimova, and according to her children for eternal and hereditary possession. Izosimova herself died before the testator, leaving children, and when the testator died, the question arose about the legality of his order and about the children’s right to the estate bequeathed to their mother, and after her to them, as property. This order, in its entirety, does not agree with Art. 1011. Zach. Citizen, and the external event - the death of Izosimova - did not in any way change the essence of the legal relationship created by the will of the testator. But the court made the following decision: according to the force of the note to Art. 1011. the order for the further transfer of the estate is invalid in the case when the bequeathed property, having come into the possession of the heir, becomes his family property upon his death (the meaning of the law is expressed incorrectly: the law does not establish a rule for this only case, but explains its decisive prohibition by this consideration, which applies to all prohibited cases). But in the present case, the decision continues, the first part of Ushakov’s testamentary order, on the provision of property to Izosimova, remained completely unfulfilled, and since the inheritance opens only with the death of the testator, it is obvious that after the death of Ushakov, only the second part of his order on the transfer of property to Izosimova’s children remained valid (here the actual consequence of an external event is mixed with the legal determination of the will). recognized as his immediate heirs by will in the estate that did not become a family estate: On the interpretation of the will of the testator, see generally § 74. For cases of increment, see § 74, note. Y. § 70. Execution of a will. – Appointment of executors. - The essence of the executor's title. – Rights, duties and responsibilities of the executor. – Examples from judicial practice. – Execution of a will by heirs Wills are executed: 1. by executors and 2. by the heirs themselves, according to the will of the testator (Article 1084). There are no provisions in our law about the rights, obligations and legal relations of executors. Only from the formal side is it determined that executors cannot be witnesses under a will (1054), and that quarantine officials and servants cannot be appointed as executors in quarantine wills (1085). In addition, in Const. Gr. Court. it is explained that claims based on the will are brought against the executors and that the executors have the right to search for all those items for which, by virtue of the will, this right belongs to them or for which the claim is necessary for the execution of the orders assigned by the will. In Const. postal (449) mentions the right of executors to receive from the post office money sent to the deceased, with the permission of the highest postal authorities. The paucity of provisions regarding executors constitutes a positive deficiency in our law. In practice, questions often arise on this subject, for the resolution of which there are no instructions in the law, and therefore it is especially necessary for us, and in the absence of a positive resolution on executors, to give ourselves an account of what the essential right and obligation of the executor consists of. The executor takes over the assignment from the testator. The essence of the mandate is to dispose of the estate and affairs in order to fulfill the last will of the testator. For this, authority is needed, the essence and limits of which are determined either by a direct decree in the will, or by the essence of those orders and actions entrusted to the executor. For example, if he is entrusted with organizing affairs and turning the estate into capital, then he, without a doubt, has the right to alienate the estate by sale and issue deeds of sale for it. The executor has, of course, the right to demand the transfer of property entrusted to his disposal, either from the heir directly entering into the inheritance, or if there is no such heir, or the entire estate is given to the disposal of the executor, he can, upon the death of the testator, directly demand from the subject authorities an inventory and transfer of the property by virtue of the will. According to the nature and content of the testamentary disposition, the executor has the right to pay debts and bring claims against the testator. No one can be forced to serve as executor. Consequently, the appointment of someone as executor in a will is not yet obligatory for that person. His consent is required to accept this title, and anyone can refuse it. If someone, having been appointed and notified of the appointment upon the entry into force of the will, did not refuse, but proceeded to make orders by virtue of this title, he, who subsequently refuses, is not free from responsibility for the consequences of his late refusal. Our law does not place any obstacle to - 1) the appointment of several executors; 2) – appointment of an executor from among the heirs and from among the persons in whose favor the appointment is made under the will. But it would hardly be possible to really appoint an executor from such persons who do not have the right to be bound by contracts. The appointment of an executor, as well as an attorney, is a matter of personal trust. Therefore, the title of executor is personal. It is impossible to allow the transfer of this title by inheritance and at the will of the executor himself. If the testator himself had authorized the executor to appoint a successor for himself or to transfer his title to another, such an order could not be valid in view of the interests in which the executor must act according to the will of the testator. In general, the validity of a personal trust and mandate terminates with the death of the principal: an exception is allowed in relation to the executor, since this type of mandate perceives and retains its power outside the life of the principal. But such trust is assumed only from person to person - for those actions that the testator had in mind, and the legal relationship would completely change and go beyond its legal limits, when it was still possible to extend the power of this direct personal trust beyond the life of the executor or beyond the limits of his personal activities. In a power of attorney between the living, the right of reassignment is possible as long as the person is alive, who at any moment can, at his discretion, revoke his will. But in a will the will, having once been determined regarding a known subject, no longer has the opportunity to express itself again 105. There is, however, no obstacle to appointing an executor as a substitute, i.e. the second, in case of failure or death of the first. But in case of refusal or death of the appointed executor, he cannot be replaced by another person by order of the government authority. The order for which an executor has been appointed is executed in this case by the testator's heir. An executor can only be authorized to do things that can be done through an attorney. Therefore, the right granted to the executor to elect an heir to the testator in one or another estate cannot be recognized as legal. The authority given to the executor may extend either to the entire estate of the testator, or to some part of it; the order may be definitive, in favor of famous persons, or for specified purposes. If the executor is instructed, for example, to dispose of his property at his discretion for charitable purposes in favor of charitable institutions, to distribute money to churches, etc., such a disposition in itself does not seem illegal. Doubt as to the validity arises if the executor is entrusted with property for use at his discretion or for a purpose known to him, without a positive explanation for what item or purpose the estate is assigned. In such an indefinite mandate, it is impossible to discern what rights are granted to the executor, who is already an independent owner and manager of the estate, without, however, having the title of owner: such a wide range of rights granted by the mandate seems to go beyond the limits of the legal relationship associated with the title of executor. It is assumed that the executor is not acting in his own favor and is bound by the assignment entrusted to him. This gives rise to the responsibility of the executor to those in whose interests the assignment is entrusted to him, and in general to the heirs of the testator. This responsibility is not the same. Regarding the responsibility to the person interested in the execution of the order, it should be noted that it is not personal, based on the personal obligation of the executor, and therefore a person who received a refusal or gift under the will through the executor does not have the right to collect from him, as it were, a personal debt, but has the right to demand satisfaction from the executor only to the extent that the executor has the means to satisfy it from the willed property, therefore, has the right to demand from the executor of the report in his actions to fulfill the last will of the deceased, and the executor always has the opportunity to reject the claim if he proves that he himself did not receive the property, and through no fault of his own. In this sense, it is true that the activities of the executor cannot be unaccountable. If there is a person in mind who, according to the contents of the will, has the right to demand from him the execution of the last will, then the executor cannot be relieved of the obligation to give this person an account of his actions, as long as they relate to his interest (see about this decision. Cass. Department. 1868, No. 78; 1873, No. 578). Even if the testator himself, having directly assigned a refusal to a known person through an executor, released the latter from reporting and responsibility, such a resolution would not have binding force and could not change the legal essence of the relationship that arises by virtue of a testamentary appointment between the subject person and the executor. Even if, without directly identifying the person in whose favor the refusal is made, the executor was given a general instruction to use the estate for the benefit of, for example, charitable institutions, then even in this case, from the moment the executor announced the appointment in favor of one or another institution, this institution will have the right to demand execution and reporting from him; and if the executor, having received the estate at his disposal, delayed the very choice and appointment to carry out the will of the testator, the power that has state guardianship over institutions of this kind could turn to the executor with a demand for explanations and force him to carry out the will of the testator (cf. Art. 1090). The responsibility of the executor in relation to the heirs of the deceased testator is presented in a different form. If, within the meaning of the testamentary disposition, the testator's heir has an interest in the property, depending on the actions of the executor in fulfilling the instructions assigned to him, then the heir undoubtedly has a direct right to demand an account from the executor: in this case there is a direct legal relationship between the executor and the heir. But if the heir has absolutely no material interest in the instructions of the executor and in his actions (there may be a legal heir, for example, a son, who received absolutely nothing after the testator), and his entire interest consists only in fulfilling the will of the deceased, i.e. has only moral significance - will he have the right to demand from the executor accountability for the exact execution of the last will of the deceased? It seems that he has no right, because such a requirement would not find an appropriate place either in our system of legal claims or among any special administrative extrajudicial demands 106 . The heirs of the testator demanded from the executor an account of the use of the amounts for the items specified in the will, arguing that then valuables remained in his hands, subject to distribution among the heirs. The executor objected that the heirs would have the right to demand an account only in the case where the property was refused unconditionally for his disposal, and not when the purpose of the disposal and its boundaries are indicated. But the Senate recognized (Cass. r. 1872, N 1000) that when the property interests of the legal heirs depend on the actions of the executor in fulfilling the instructions assigned to him, then they cannot be given the right to demand an account from him. The position of executor is essentially gratuitous and does not imply remuneration, however, it does not exclude the possibility of remuneration: there is no reason to deny the right of the testator to provide remuneration to the executor; if it is not provided, then the executor has no right to demand retribution for his labors. An assignment of property may also be made to him on the condition that he assume the duty of executor, but in this case, by refusing the duty, he is deprived of the right to the abandoned property. On the other hand, when accepting an assignment in someone else’s business, at least out of moral motivation, the executor undertakes to conduct this business at his own expense, at his own expense. He has the right to pay these costs to the account of the testator’s property, which he administers. The duty of the executor ceases with the final execution of the work entrusted to him. The law does not give him a time limit. However, the right to demand reporting from him is also combined with the right to induce and even the right to recover if property damage is caused by his fault; but, of course, recovery to the extent of the interest that is granted under the will to the interested party. Without a positive definition in the law, it is impossible, however, to recognize for this person or the heirs of the testator the right to demand the removal of the executor, unless there were dishonesty or malicious intent on his part. If he himself turned out to be in a recognized insolvency, then it would hardly be possible, under the law in force in our country, to unconditionally demand his elimination 107 . If no executors have been appointed, then testamentary appointments are executed by the heirs at the will of the testator. If no special will has been expressed for this, then the persons in whose favor the assignment is made, without a doubt, have the right to demand fulfillment from those who accepted the estate after the testator as an heir, for the heir, in any case, responsibly represents the personality of the deceased patrimonial owner. A. Here are several rulings from judicial practice on the duties of executors. In the Engel case, the executors of Tishevskaya's will, having become aware of the heirs' dispute against the will, paid out the amounts assigned under the will. Subsequently, after the destruction of the testamentary dispositions, it was ordered to collect these amounts from those who received them, and in case of their insolvency, from the executors, of which there were two, half from each, since both participated in the issuance (Sb. Sen. decision vol. I, No. 119). In the Ivashkevich case (ibid. No. 285), it was recognized that the Noble Guardianship correctly refused to release Yakhimovich’s executors from the obligation they assumed under the will to sell the property and satisfy the debts of the testator. In the Popov case (ibid. No. 338), it was recognized that although Popov authorized the executors to be exact executors of the will under responsibility before state laws, this does not give the government the right to demand from the executor a detailed report on such distributions, the size and number of which are not positively defined in the will, but are left to the sole discretion of the executors, who are subject to these actions to answer only to their own conscience. In the Vakhtin case (ibid. No. 432), the Senate removed the executor from Kalinicheva’s claim brought against him for the money assigned to her under the will, since the entire estate of the deceased went to his heir, and the executors did not have at their disposal either the property or capital of the testator. In the case of Gorbunova (ibid. No. 518), the Senate recognized that in Lokhvitskaya’s order to allow the executors to dispose, at their discretion, of the proceeds from the sale of the house with money and other property, for assignments made from it, there was no error either in the person or in the bequeathed property, which would make Lokhvitskaya’s will invalid. In the Baranovich case, the Senate (Sb. Sen. Resolution Vol. II, No. 101) recognized the executor, for an unspecified appointment in favor of the churches, as reporting to the local diocesan authorities. B. In the decision of the Senate in the case of Shurinov (Journal of Min. Justice 1866, No. 7) it is explained that, within the meaning of Art. 1084. Zach. Citizen, any person who is entrusted with any responsibilities for the execution of a will, if this person is not the heir himself, is considered an executor. Wed. Cass. decide 1879, N 205. V. The decision of the Senate in the Mashchenko case (Cass. decision 1868, N 308) says: neither in 1084 art. Zach. Citizen, nowhere in our laws is there such a rule that the death of one of the executors deprives the other of the right to fulfill the will of the testator expressed in the will regarding the property left after him. G. In the Zhdanov case, the Senate (Cass. decision. 1869, No. 612) recognized that the right of the executor under an approved will does not yet require special judicial recognition and approval, just as this is required in relation to inheritance, and in this case it should not be required that all those places and persons to whom distributions are assigned through the executor especially present to the court in person their rights to receive the bequest. D. In the Savinov case, the Senate (Cass. decision 1869, No. 319) recognized that the executor, having withheld the capital bequeathed to him 1000 rubles without Savinov’s consent. and paying him in installments over several years, Savinov could be ordered to pay a penalty and interest for retention, on the basis of Art. 641. Zach. Citizen In Nikitina’s case (Cass. decision 1873, No. 119), the testator instructed the executor to contribute capital of 5,000 rubles, assigned to the Popov grandchildren, to the credit establishment before they came of age. Instead, the executor gave the capital to the minors' mother as their natural guardian (even though she was not the appointed guardian). The mother died without leaving a trace of the capital, and according to the Popovs’ claim, the executor was awarded the recovery of that capital in their favor. E. By the decision of the Senate (Cass. decision 1869, N 227) in the Pokrovsky case, it was recognized that by force 991, 1010, 1084 art. Zach. Civil, 1st and 25th Art. Est. Citizen Court. the executor, by virtue of one mandate that he assumed when drawing up the will, does not enter into a personal and direct obligatory relationship with those persons to whom the property is predetermined in the will, but is responsible to them, upon the death of the testator, for what actually turned out after this death and what was legally accepted by the executor; therefore, to turn to the executor of responsibility in the bequeathed property, a mere reference to the will is not enough, but it is also necessary to certify that the executor has taken possession of the bequeathed property. In order to impose a personal penalty on him for the bequeathed property, if it were not there, the opportunity that has opened up for the executor to demand this property is not enough: he must also have evidence that he, through his inaction or omission, has lost this opportunity. J. In the village of Milvida 1 General. Collection Sep. (decided on March 20, 1867) recognized the obligation of the heirs of gr. Plater, who had been the executor of the testator Fitingof since 1835, to report to her heirs on the fulfillment of the assignment entrusted to him for the sale of the estates and the payment of the testator's debts. According to this claim, amounts were awarded from them for which they could not justify the expenses, namely: for income from the house, part of the money received from the sale of the estate and for movable property, etc. In a later decision in 1874, on the claim of the heirs about the incorrectness of the payments made by Plater, the Senate, in General. Sobr., rejected the claim of the plaintiffs that the defendants are obliged to justify their payments by certifying the formality of the documents or by police and court judgments of recovery. According to the reasoning of the Senate, the testator did not impose an obligation on the executors to satisfy such debt claims only. But, on the other hand, executors are required to certify payments with receipts and prove the existence of a debt for each payment. Z. In Cass. decide 1873, No. 578 and 1878, No. 263, it was recognized that the executor is in any case obliged to submit a report to the heirs and that the testator’s order for the unaccountable disposal of property by the executor is illegal. § 71. Execution of wills by various institutions and through the government Regardless of executors and heirs, the law specifically mentions the institutions to which the testator can entrust the execution of his last will, and those that, regardless of such an assignment, have the right to oversee the execution of certain orders of the testator. Wills deposited with the Guardian Council are executed by the Council when such a disposition is given to it by the will of the testator and when the will entrusted to him contains the only disposition of the capital contributed to the Guardian Treasury before 1860 (1087). The Moscow Trustee Committee of the Humane Society executes wills entered into it for safekeeping and associated with the benefit of the poor it cares for (1088). The district court, upon presentation for approval of a will with a donation in favor of charitable institutions and in general for objects of public charity or benefit, forwards extracts from the wills to the prosecutor for reporting to the relevant departments. Extracts from wills, when they contain the exact designation of the item for which the donation is made, or when they indicate the institution or official at whose disposal the will is left, are communicated by the prosecutor to the public charity orders, zemstvo councils, city public administrations or other institutions, according to their affiliation, indicating the place of residence of the executors or persons presenting the will. Extracts from wills that do not contain the exact designation of the object to which the donation should be made are reported to the local provincial government, upon the location of the bequeathed property, for immediate supervision of the execution of the will and acceptance of the bequeathed property into its management, pending an order regarding the procedure for its use. Orders of public charity, provincial boards, zemstvo councils, city public administrations and other institutions immediately bring each of such wills to the attention of the Ministry of Internal Affairs, monitor the execution of testamentary orders made in their favor and communicate with whomever is appropriate about the transfer of bequeathed property. To those donations that are made in wills without an exact indication of the subject of use, when, moreover, neither the institution nor the person at whose disposal the bequest is left is indicated, the Ministry of Internal Affairs gives a specific purpose, which it informs the subject institutions or provincial boards for execution. If the donated property is located in different provinces, the Ministry of Internal Affairs is entrusted with the supervision of the execution of the will. In cases where a donation is made, although without an exact indication of the very method of using the bequeathed property, but the purpose of the donation, indicated by the testator in general terms, relates to items of the department of other ministries, and not the Ministry of Internal Affairs, the designation of the method of use of the bequeathed property and supervision of the execution of the spiritual will are assigned to the ministry to whose department the item belongs (Law. Civil. Art. 1090–1094). Regarding the execution of wills in favor of the Lutheran Church, the Charter of Foreign. Spanish it was decided that the designation of the testator is strictly observed and can be changed only with the Highest permission when the testator himself agrees to this change or when the use of the property for its intended purpose turns out to be impossible (Article 604); on the right to accept and permit the acceptance of a will, see ibid., Art. 605–610, 1011, adj. to 124 art. clause 10. On property and capital abandoned in favor of the Roman cat. clergy and spiritual institutions of the Kingdom of Poland by persons who died after the High. decrees 27 Oct. 1864 and 14 Dec. 1865, see P.S. Zak. N 49042. On the leaving for the use of the Greek-Uniate clergy of capital bequeathed in their favor with the condition of commemorations and other spiritual duties, see P. S. Zak. N 49666. On the procedure for executing the testator’s orders, which must be valid indefinitely, cf. decree on the specialization of capital according to the will of Gr. Arakcheeva. P.S. Zak. N 47244. A. In the Popov case (Collected Sen. Resolution vol. I, No. 338), in which the city Duma demanded from the executors a report on distributions in favor of the poor residents of the city, the Senate recognized that the Duma does not have the right to sue, since the choice of the poor for distributing money is left to the executors at will. In the case of Zhernakov (Sb. Sen. Resolution II, No. 776), the Senate found that the will prescribed that the amounts available for the specified distributions should be used for charitable items, at the discretion of the executor, but there was no indication of the charitable institutions to which the property should go, or the locality in which they are located, therefore, the court. The place, regarding the appearance of the will, was not obliged to report an extract from it to the Order of Public Charity. B. Levanidov, having assigned the estate to his nephew, entrusted him with the obligation to give 500 rubles annually to the church in the village of Kupichevo, with an almshouse and a hospital at this church. Due to disputes that arose between the church clergy and the heirs about who should receive the assigned money (which is not specified in the will), the Senate (Sb. Sen. Resolution II, No. 438) determined: the amount of 500 rubles. divided into three equal parts, of which one should be contributed to the benefit of the church, and the remaining two should be used by the owners of the estate for the charity of the poor and elderly, entrusting supervision of this to the provincial authorities. V. According to Voinilovich’s will (Sb. Sen. Resolution II, No. 366), interest on the capital bequeathed for the remembrance of the soul in the Raichansky Roman Catholic Church is supposed to be paid, for the transfer of this church to the Orthodox clergy, to the Roman Catholic parish church closest to the estate. D. The father appointed his son as his heir, entrusting him with the obligation to make cash payments to named persons and perform other duties for 15 years. The son, having taken possession of the estate, died before the 15-year period and bequeathed the estate to the chosen heir, charging him with the obligation to fulfill everything that, according to his father’s will, was entrusted to him. The Senate (Sb. Sen. Resolution II, No. 427) did not find a reason to destroy this will, under the pretext of failure to fulfill all the duties assigned to the last testator. § 72. Acquisition by will. - When it happens The right to bequeathed property is acquired from the moment of death of the testator. Property is acquired by the beneficiary directly from the testator; therefore, in order for the right to be transferred and the acquisition to be completed, it is necessary that at the moment of opening the right under the will, i.e. at the moment of death of the testator 108, the person to whom the property was bequeathed was alive or was at least in conception (1160 Art. Civil Code). The heir under a will has the right to the bequeathed property from the time of the death of the testator, whenever he takes actual possession. There may be a fairly long gap between the death of the testator and the reading of the will and the appearance of the appointed heir. If during this period the estate did not have a legal owner, then the heir who appears under the will can claim the property as it was at the moment of the testator’s death, i.e. with all income and increments since that time. But if, before his appearance, heirs at law appeared after the testator and were brought into possession of the estate, then they are not responsible to the heirs under the house will either in income or in management, until a dispute is opened according to the revealed will in the established manner (according to the literal meaning of the article, the opening of a dispute should be recognized as the filing of a petition in court, although it would be fairer in this case to recognize the statement of claim or dispute to the heir as the beginning of responsibility). Even the alienation of property by the heirs by law is not destroyed if they managed to sell or pledge it: the heir under the will in this case has the right only to recover the money received from the sale or pledge, and then without interest. In addition, the former legal owner has the right to demand reimbursement of costs for improving the estate or for new establishments on it, made before the opening of the dispute (Art. 1300–1302). It should, however, be noted that all these decisions apply only to heirs under a house will, and according to the literal meaning of the articles and the opinion of the State Council of 1829 (N 3134), from which the articles are extracted, do not apply to heirs under a serf will. It is true that the current form of serf wills was introduced in our country only in 1831; however, even in 1829, when the above estate of the State Council took place, the form of serf wills (i.e., those made by serfs) not only existed and was in use, but was also considered the main form; household wills were accepted in the form of a special facilitating form. If a testamentary assignment is made under a condition on which the receipt of the bequeathed property is made dependent, then the right to the bequeathed property can be considered acquired only upon the occurrence of the condition; Until now, the subject person has only a conditional opportunity to acquire, and if it is provided to him only personally, and he himself did not manage to acquire a valid right before his death, then this opportunity to acquire does not pass to his heirs. There is a special rule about wills by which copyright is transferred or assigned: the law says that the successor is obliged to announce this (to whom?) and provide appropriate evidence within a year from the death of the testator: then only the successor assumes all the rights of a legal heir. It is unclear whether the ordinary appearance of the will is sufficient for this or whether some special announcement is required (see Civil Law, Art. 420, note 2, appendix Art. 6). It was explained above that our law does not establish any distinction between the appointment of an heir, or the renunciation of the entire estate and the renunciation of individual things or property, as well as between the successor of one or the other - the heir and the legatee. This difference follows, however, from the nature and economic situation of the property itself, assigned by the testator, and from the material conditions of possession and transfer. It is obvious that when a mass of property or property having a total integrity is assigned to a known person, taking possession of it can be accomplished simply and directly; on the contrary, when from a whole mass or totality of things that accrues to one person, one thing is supposed to be separated and transferred to another person, then mastery on the part of this latter must be preceded by a separation from the mass of separately assigned things. From here it follows from the essence of the relationship that the successor of an individual thing that is part of a whole set of things must apply with a demand for allocation and transfer to the person to whom the whole set passed under the will. So, for example, if Ivan was assigned a library that was part of the deceased’s movable property, and was assigned a sum of money from the deceased’s capital, Ivan must demand payment from the person who received all the movable property or who received the capital (unless the testator assigned the payment to a specifically designated person). If a library located on a well-known estate is assigned to Ivan, it is necessary to demand delivery from the person who received this estate. If the assigned thing during the lifetime and by the will of the deceased patrimonial owner received a separate position, outside the totality of things to which it originally belonged, then the appointed successor of the thing can demand it from any person in whose hands it is, directly on the basis of a will. For example, if the testator provides Ivan with a collection of paintings that the testator temporarily supplied to Peter, Ivan can, on the basis of the will, directly demand the delivery of these paintings from Peter. A very important question is when does the acquisition of a separate thing assigned by will take place to those to whom it is assigned? Unfortunately, this issue is left by our law without immediate definition, and due to the lack of direct resolution, it is difficult to find data to resolve it in accordance with other parts of the legislation. True, the law says that the right to an opened inheritance belongs to the heir from the day of the owner’s death, and in many cases the testamentary transfer is likened to an inheritance, but these instructions are not enough. It is still impossible to recognize the successor of an individual thing as an heir under a testator in the same sense in which the successor of an inherited estate is recognized as an heir, for, as stated above, the successor of an individual thing does not take possession of it directly, but in essence receives the right to demand this thing by will from the one to whom it was directly transferred, or from whom it is in retention. So, it seems necessary to recognize that the patrimonial right to individual bequeathed things passes to the appointed successor not by force of law, directly from the testator, upon his death, like an inheritance, but only with transfer and possession. Regarding movable things, this conclusion is consistent with Articles 534 and 1510. Part 1 X t.: so, if the person from whom the transfer, according to the intended purpose, of the bequeathed things was to be demanded, had managed, before the demand and transfer, to dispose of these things and sell or donate them to third parties, the successor appointed by the will has the right only to demand from the person responsible under the will remuneration for the value of the thing and for losses, but cannot destroy the alienation that has taken place, unless it is proven that in this alienation both parties acted in bad faith or with malicious intent. Regarding the real estate that is the subject of a separate refusal, the consequences will be essentially the same. If the subject of a testamentary assignment is solid real estate that has a separate economic and legal significance in the mass of all the estates of the deceased, then the appointed successor will essentially be an heir under the will, and the patrimonial right passes to him from the testator directly, and the will serves as the only act of transition; no other act of transfer or other personal transfer is required; therefore, with the entry into force of the will, the successor of the estate can take possession of it directly. Here, the solution to the question of acquisition depends on the question of whether the bequeathed estate can truly be assigned economic and legal integrity, which does not require separation from the mass with which it is - accidentally, arbitrarily or necessarily - connected (for example, there may be a question of whether a forest dacha, specially arranged and demarcated, has such integrity as part of the dacha to which, according to a general land survey plan or by economic order of the owner, assigned). So, when there is no doubt about the integrity and separateness of the assigned estate, it must be recognized that the patrimonial right to it passes to the appointed successor from the very death of the owner. However, even here, if it turns out that the heir by law has already accepted this estate, not knowing about the will, and managed to sell or pledge it, then what was sold and pledged is not reversed (see above about 1301 Article of the Law of the Republic of Kazakhstan). The view of the matter changes significantly when the real estate assigned by will does not have integrity and separateness at the time of the death of the testator, and can receive this property only through allocation, i.e. by the action of the will of the one to whom all the property goes, together with the will of the one to whom a part of it is assigned. For example, if it is said: my estate, the village of Katerinovka, with the farmsteads and lands belonging to it, I bequeath to Ivan, but I assign 30 acres of land from this estate to Fyodor and grant him to use the forest from the Davydovsky forest dacha to build an estate on this land; or simply, not to mention the legal heir of Katerynivka, Ivan: I assign 30 dessiatines from the estate of my Katerynivka to Fyodor. In this case, Fedor receives the land from the testator, and nothing other than this will serves as the basis for his acquisition (hence, he is obliged to pay duties, if necessary, on the transfer alone); but his patrimonial right to the bequeathed land is acquired by him only by allocation and transfer from Ivan, to whom he must turn, therefore, if Ivan had in good faith managed to transfer the entire bequeathed estate into third-party hands before Fyodor’s demand and before the allocation of 30 dessiatines to him, Fyodor has the right to demand from Ivan only monetary or material compensation for the alienation. If Ivan is the successor of the estate under the will, then it can be assumed that in the alienation of the entire estate to a third party, and this third person, together with Ivan, acted in bad faith; then, because of this dishonesty, and not because of the patrimonial right, it is possible to assign to this third party the duty of allocation that lay on Ivan. When known, existing property, individual things or capital that have a separate existence in the mass of property are bequeathed in favor of a person who is not one of the heirs, then these properties go to the beneficiary with all their increments; so, for example, according to the credit establishment ticket, indicated by the date and number in the will, the capital comes with all the accumulated interest, which the testator did not manage to take and about which there is no separate order. But if the will specifies the payment of money not from a separate amount existing in cash, but from property in general, then this payment becomes an obligation lying on the person to whom the property was transferred or to whom it was entrusted for the execution of orders. The subject person receives the right to demand this extradition immediately upon the entry into force of the will (unless the issuance is delayed by a testamentary condition), but the person responsible for the extradition in such a case is only responsible for increments, interest, etc., when the delay in issuance is proven to have occurred through his fault. § 73. Consequences of acquisition. – Liability of heirs and successors under a will for the debts of the deceased testator According to the general rule of justice and law, the heir is responsible for the debts of the deceased. He who took and owes is obliged to give and satisfy; one cannot appropriate someone else's property arbitrarily, and payment is more important than a gift - these are the indisputable requirements of justice; therefore, the heir can essentially consider as his only what he can consider pure after the deceased. The successor under a will receives property from the deceased patrimonial owner, like the heir, freely and by succession, therefore, since the deceased patrimonial owner was obliged to satisfy his debts from this property, the successor is also obliged to the same, at least by will. The testator died without clearing the debts, therefore, it would be unfair to remove from responsibility for these debts any part of the remaining estate, only for the reason that the deceased debtor wished to benefit a person chosen from the outside with it - such a benefit would not be right if it could be done at the expense of people who did not receive satisfaction from the deceased in theirs. So, in general, the estate of a deceased patrimonial owner, transferred or distributed according to a will, cannot be excluded from liability for his debts 109. The deceased made them on account of his general credit, combined with the concept of his ability to pay, and this concept, when entering into debt and accepting obligations, was affirmed on the basis of the entire mass of his property. Therefore, even after his death, the entire mass of the remaining property must bear responsibility for his debts. The direct conclusion from here is the following: as soon as it was discovered, after the death of the testator, a legal claim against him, the mass of his property must be ready for liability; if it has already been materially distributed among the successors under the will, it is necessary to ideally aggregate it. Each of the participants in the acquisition by will brings his share of the acquired property into the total estate to satisfy the debt; and after the debt is satisfied from everything, only that which is returned clean to the participant in the acquisition is what remains after the equal satisfaction of the debt from the mass. If, after satisfaction, there is nothing clean left, but everything goes towards payment, no one has the right to complain, for no one is offended; the claimant received everything that the mass of property of the deceased debtor could bear and cover with its value; the appointed successors receive nothing back, for everything that was assigned to each went to clear the debts of the deceased owner. Consequently, everything that the testator thought to give to each and that each hoped to receive for his own benefit disappeared in the final liquidation of the property and debts of the deceased. After liquidation, everyone was left to their own. The estate of the deceased was completely separated from him due to debts. The successors under the will were not enriched by the will in any way compared to what they had before the death of the testator. Fairly, but the general inheritance law goes even further, transgressing the material boundaries of property and value, the law stops at the personality of the deceased, in which, without limiting the measure of property, the total responsibility of the debtor for all his debts and obligations, which he entered into with his loan, is concentrated. The law presupposes that the heir, entering into an inheritance, becomes the successor not only of the known property, but also of the entire legal personality of the deceased with all his credit and with all responsibility, uniting with both inseparably his legal personality, his credit and his responsibility. By virtue of this assumption, our law also decrees (1259 Zak. Gr.) that the obligation to pay the debts of the deceased, in proportion to the inherited share, and even, in the case of a lack of (hereditary) estate, to answer with his own capital and property, passes to the one who accepted the inheritance. Having not found in our laws a special definition of the liability of the successor under a will for the debts of the deceased testator, we have the right, however, to conclude with complete certainty that the successor under a will cannot be exempted from this responsibility. This conclusion is justified by both the general considerations stated above and the analogy between succession by inheritance and by will, clearly recognized by our legislation 110 . But to what extent does this responsibility fall on the successor under the will, and should the above rule of Article 1259 be extended to it in all cases, i.e. Should the successor under the will, in the same way as the legal heir, be liable in proportion to the property received from the testator, both with his own capital and property? A general conclusion in this sense, when there is no positive indication in the law, would be unfounded, since succession under a will may not be the same. When, according to a will, one person is appointed as the sole successor of the entire mass of property after the testator, then it is possible to assume a complete analogy of testamentary succession with legal succession, for the heir under the will here completely replaces the heir by law, and if the legal heir did not receive any inheritance, then this is solely due to the will of the testator. Such an heir, having accepted the bequeathed property, without any doubt replaces the completely legitimate heir and, in his responsibility for the debts of the deceased, comes under the rule of Art. 1259. Zach. Gr. Let's go further: if after the deceased the entire family estate, outside of the will, went to the legal heirs, and everything acquired, according to the will, went to one chosen person, again, it seems beyond doubt that the successor under the will must share the same responsibility with the heir at law. If there were no will, then the estate included in the will would go to the legal heir with full responsibility, therefore, on the one hand, the creditors of the deceased should not suffer damage in the exercise of their rights just because the testator-debtor ordered to bequeath part of his estate; on the other hand, there is no reason for the legal heir to be subject to increased liability in favor of the successor under the will. Finally, if the testator provided not only one person with the entire mass of his estate, but distributed it among several, assigning one whole estate to one, another to another, etc., then in this case the successors under the will, if only they can be considered immediate successors, cannot be exempted from the same, i.e. full responsibility, for all of them together either replace the legal heirs, or together with the legal heirs, take after the deceased patrimonial owner the entire mass of his property, therefore, by the very deed and meaning of their rights they come within the scope of the same 1259 Art. But if the person in whose favor a separate appointment is made cannot, by the nature of this appointment, be considered the immediate successor of the testator, receiving under the will only the right to demand extradition, transfer or allotment, then it would be unfair to subject such a person to the same liability as the legal heirs and direct successors under the will, for these persons are no longer in the legal position of heirs. But despite all this, these persons, and not being heirs, nevertheless took advantage, at the will of the testator, of some (sometimes very significant) value from the estate belonging to the testator. Shouldn't they, for this reason, be held liable for the debts of the deceased, although in the value of the property they received by refusal? Our only rule on this subject is found in Art. 1259. Zach. Citizens, which means heirs, and persons to whom mediocre distribution is assigned under a will, do not quite fit the concept of heirs and hereditary representation, and the distribution assigned to them has the meaning of a testamentary gift, sometimes a reward for services or actions, but not the meaning of an inheritance. However, from judicial practice it is clear that such persons were also subject to recovery as heirs. One can point to the decisions of the Senate, in which it is recognized that persons to whom monetary payments are assigned by will must be held proportionately liable for the debt of the testators, as heirs (Cass. decision 1868, No. 777; 1879, No. 294; 1886, No. 60). Such reasoning, if understood in the sense of unconditional responsibility, is hardly fair. A person to whom the distribution of money or a valuable item is assigned, in all fairness, should not be subject to liability beyond the value that he received under the will. A. In Cass. decide 1872, No. 624, it is explained that the time of drawing up the will does not have any significance for the successor under the will regarding his responsibility for the debts of the testator, since succession arises and liability is determined only at the moment of death of the testator, and therefore debts made by the testator both before and after drawing up the will equally remain the responsibility of the heir. B. By virtue of Art. 1086 Zach. Citizen the successor of the bequeathed acquired estate, from which the testator has made cash distributions to third parties, is obliged to make these distributions in the exact sense of the will of the testator. To Cass. decide 1872, N 1223 it is explained that he bears unconditional responsibility, i.e. he is responsible for everything, even if the amount of the payments exceeds the value of the property received. The conclusion drawn by this decision from Art. 1086 is hardly solid, in such an unconditional sense. The measure of responsibility of the successor depends, in any case, on the nature of his succession, which cannot always be equated with hereditary succession (see § 72 above), and on the conditions under which the appointment was made. The position derived by the Senate is undeniable in the case when the distributions are assigned to the person to whom all the property of the testator is intended, but when the distributions are assigned by the very will of the testator to property specially allocated from the mass and intended for an individual person, then it will be fair for the successor’s liability in this property for distributions to be limited to the limits of the value of this property: neither in 1086, nor in other articles of the Law. Citizen no direct principle has been expressed that would justify the opposite conclusion. B. The successor under the will is also responsible for cash distributions to third parties, but is responsible to the extent and in the conditions as they are assigned to him by the testator and as the latter determined the right of the third party to whom the distribution was assigned. If no other basis is indicated for the issuance other than the will of the testator, then it falls on the successor unconditionally and indisputably; the successor does not have the right to enter into an analysis of the motives that may have guided the testator, and to refute those factual or legal data from which the motives that determined the testator’s giftary will could have come. If the issuance order states, in addition to deeds of gift, other grounds, but those that completely and exclusively depended on the personal consciousness of the testator about his obligation towards a third party, the successor under the will also does not have the right to contradict the will of the testator and refute it; for example, when the testator (of an acquired estate, about the ancestral cf. above § 63) is aware of his debt to a third party and entrusts the successor with the payment of this debt, the successor does not have the right to refute the consciousness of the testator with his own consciousness, does not have the right to prove that the consciousness of the testator was due to an error, or misconception about events, or about the law. But if the testator specifically puts forward legal grounds to justify the issuance, which depend not only on the personal consciousness of his obligation, but also on the consciousness of his rights and someone else’s obligation, then one cannot help but admit that the successor can refute the accuracy and thoroughness of this consciousness of the testator about the right to the actions of others that belongs to him. The successor is not deprived of this opportunity even in the case where the testator’s order is based on the assumption of the right to act of the person to whom the estate is assigned and to whom the delivery is entrusted. For example, if the testator says: pay him the money that I owe to Ivan, the successor is obliged to pay unquestioningly. But if the testator said this: give the money that you owe me under the loan letter to such and such, the successor is not deprived of the right to deny the existence of the debt or prove that it has already been repaid, and demand from the other party certification of the existence of the debt, not being satisfied with the personal consciousness of the testator about his right. It goes without saying, however, that the right of the successor can be limited in this regard by the positive will of the testator. The widow Tarnovskaya wrote in her will in 1851 that her father borrowed 10,000 rubles from her. according to a loan letter, and her husband has 14,000 rubles, that her husband transferred his claim to her, that this debt remained unpaid, that her father, at death, entrusted the payment of that debt to his successor in the will, nephew Yegor Alekseev, and therefore bequeathed Elena Gorlenkova to receive this money from Yegor Alekseev. Obviously, there was nothing legally binding on the alleged debtor in this will: it only meant a gift transfer under the will of the alleged claim to a third party - Elena Gorlenkova. But the next year, Tarnovskaya made another will, with which she transferred her estate (and also her family’s) to the same Yegor Alekseev, and wrote that she asked him to pay her money owed to her by her father, according to her instructions, to Elena Gorlenkova. After the death of the testator, Yegor Alekseev, having accepted the estate, began to assert that the said debt, if it ever existed, should be considered repaid, and demanded that the claimant certify all those facts from which the existence of that debt was inferred in the first will. Gorlenkova rejected her obligation to prove the existence of the debt, arguing that Alekseev, in whose person Tarnovskaya’s debtor coincides with her heir, is guilty of fulfilling the will of the testator unquestioningly. There is no such coincidence in the case, because if Alekseev is indisputably the heir, then it is still unknown whether he is the debtor of the testator, and her testimony alone, even if it is denied, is not enough to confirm this. Then the question of the obligation to pay, by the force of one will, is resolved by those expressions of the will with which the issuance is entrusted to him, and since it is not unconditionally entrusted to him, it is impossible to deprive him of the right to demand from the debtor evidence of the existence of the debt. In this sense, the matter was resolved by the Senate (8th Dep. May 27, 1869). But in the General Assembly, in 1874, a decision was made in the opposite sense. D. When an estate is bequeathed not into ownership, but into lifelong possession, the question may arise: to what extent is the lifelong owner, not having ownership rights and not being considered a direct heir by the testator, liable for it from the estate, which is in his lifetime possession? This responsibility may relate to: a) specifically to duties and obligations falling on the estate, which consists of lifelong ownership; b) in general to the debts of the deceased testator. Our legislation answers this question, in the last subject, only for estates that come into lifetime possession to one of the spouses according to the will of the spouse (Law Gr. 5331 et seq.). On the first subject, the decision is simpler, and the law determines that the lifelong owner pays all duties legally assigned to the estate - state, public and zemstvo; that debts secured by this estate are collected from him; that all urgent obligations passing along with the estate to the lifelong owner remain in force until the expiration of the terms. But whether they generally fall on the responsibility of the lifelong owner, nothing is said or explained about what should be understood by the word “obligations passing along with the estate.” That these obligations do not lose their force, there is no and could not be a doubt, but who should be decisively responsible for them, which of them are decisive in nature - this is a question whose solution is unclear from the text of the law. For example, if the deceased testator entered into a contract for the supply of timber from an estate assigned to lifelong ownership, who should be responsible under the contract for the supply of timber? It seems that he should answer, i.e. must fulfill the contract for delivery in kind, the lifelong owner of this estate. But if the testator himself, before his death, fell into a penalty under this very contract, the question arises whether the lifelong owner is guilty of paying it? It is obvious that this obligation, arising from the personal action or inaction of the deceased testator, is his personal obligation and is not secured on the estate, and therefore, to it, as well as to all personal debts of the deceased testator, not secured on a certain estate, a well-known rule of law is attached that the same debts are subject to recovery from the lifelong owner and from the heirs of the former patrimonial owner, in proportion to the estate received by the first for life possession, and to the latter into ownership. Our law here does not explain on what principles the distribution should be made and what the proportionality of it should consist of, for the patrimonial right of ownership in itself is incommensurable with the right of temporary possession, and these rights can be brought into proportionality only by bringing both rights into price, comparing both with a monetary unit that is unchanged for both. In this case, ownership of the estate should, in all fairness, represent capital, and temporary ownership a certain amount of interest on this capital. Wed. Volume I of this course § 61, 62. Cass. decide 1873, N 1674. § 74. Mutual compliance of the testator’s orders. – Leaving what is legal in force while destroying what is illegal. – Interpretation of wills. – Case studies Article 1029: “If the will contains instructions that are contrary to the laws, then these instructions are invalid; but at the same time, all orders that are not contrary to the laws remain in force.” The meaning of this law does not allow any doubt if the will contains a simple distribution of property between appointed persons, without any conditions, and if the testator’s orders are not interconnected, so that they can conveniently be separated from one another and executed, each separately. For example, if the testator disposed of not only the acquired property, but also the family estate in favor of a stranger, it will be obvious to everyone that the disposition on one estate, as legal, remains in force, and on the other, as illegal, must be destroyed. But it often happens that the will of the testator regarding the same person and the same property was expressed in such a disposition, which in one part is legal, and in the other, according to the will of the testator, inextricably linked with the first, is illegal. In this case, the question may arise: is such an order subject to destruction in its entirety, as expressing the undivided will of the testator, or only in one part, recognized as illegal? Some believe that in such cases, dividing the will of the testator would mean changing it arbitrarily. According to our laws, the testator has the right to dispose of his acquired property as he pleases, and if his will regarding the property is expressed conditionally, then the executive power does not have the right to turn this conditional will into an unconditional one. For example, he assigned his estate to the full ownership of his niece so that upon her death it would pass to another person specified by him. The last part of this order constitutes a violation of the law and therefore cannot be enforced. Or the testator assigns a monetary payment to a third party so that this person undertakes to perform an action prohibited by law, for example, to a wife so that she does not live with her husband. In both cases, both parts of the order collectively constitute a single action of the will of the testator: the owner assigns the estate to his niece, but at the same time assigns it after her to another person; he meant to grant two persons successively the right of ownership of his estate: to transfer this right exclusively to one person would mean to interpret the will of the testator not in the sense in which it was expressed. The issuance of money in itself is not an order contrary to the law, but it is placed in a necessary connection with the execution of an illegal action. In both cases, the purpose of the testator is clearly visible, and this purpose is the essence of the disposition; and since this purpose is illegal, then the entire disposition, in its entirety, must be destroyed, and not one part of it, leaving in force the other, which would be inconsistent with the will of the testator. We cannot agree with this opinion: it corresponds neither to the spirit nor to the literal meaning of the law. A will is not a contract. When judging the legal validity of a contract, the main attention is paid to its purpose (Article 1529 of the Civil Code). If the motivating reason for concluding an agreement is the achievement of a goal prohibited by law, then the entire agreement is considered void as a whole; the same must be understood about a condition that has an unlawful purpose and forms a separate part of the contract; it is destroyed completely and inseparably. The internal meaning of this resolution is, of course, that the contract is concluded by mutual consent of the parties, and each party is presumed guilty - one for having proposed, the other for accepting an illegal condition; by destroying one part of the condition and leaving the other in force, the unity of the whole act would be violated, which without a new free agreement of both parties, without a new deal, cannot be restored. On the contrary, in a will the will of one testator is valid; during his life she had no need for any transaction, and after death she does not have the opportunity to interpret and correct herself. An heir who does not take part in drawing up the deed should not be responsible for the illegal conditions placed in it, nor should he be deprived of the benefits provided to him as a gift for someone else’s fault. It is reasonable to assume that the testator, assigning this gift to him, had in mind mainly his benefit, and not his damage, wanted to do him good, therefore, the assignment of property constituted the main, essential part of the disposition. This was the view of Roman law, accepted everywhere, and there is no reason to think that it cannot be applied in our country. In relation to a will, our law does not speak about the general purpose of the entire act and not about the whole disposition relating to one person or property, but simply about the disposition, decreeing unconditionally that the legal disposition remains in force, and the illegal one is destroyed: therefore, when in the same disposition the illegal part of it, relating to the legal one as an addition to the whole or as incidental to the essential, can be cut off from it, without destroying the material or formal possibility of execution, then there is no obstacle to proceeding to execute the order in its legal part. On the contrary, if the illegal constitutes the main, essential part of a testamentary disposition, so that without its execution the other part, which in itself is not illegal, cannot be put into effect, then the entire disposition is destroyed in its entirety. For example, when, according to a will, peasants with land were released into the class of free cultivators with the obligation to pay a certain amount annually to the testator’s widow, the first part of the will was invalid as illegal, but the last was also void, because without compliance with the first it could not be executed. Same result, i.e. the destruction of the entire order will occur in the case when the testator positively expressed that the property cannot become the property of the chosen heir if the fulfillment of the condition turns out to be legally impossible: here both parts of the order are inextricably linked by the will of the testator, directly expressed. We see something completely different in the examples we gave at the beginning. The testator clearly expressed his will here, giving the estate to his niece as full ownership; but with this one expression, the testator, so to speak, exhausted the entirety of his patrimonial rights to the bequeathed estate, and could not go further, could no longer subtract anything from them or add anything to them; having said that he was transferring all his patrimonial rights to his niece, he could not at the same time limit it to the definition of a further transfer. Here the second part of the order is not a complement to the first, but a contradiction of the first, and, moreover, one that cannot stand in the legal sense. You cannot at the same time give unconditionally and take away, give full freedom and limit it. Here, in essence, there are two orders about the same estate: one of them is substantial, complete, exclusive, in accordance with the law, remains in force; the other, as an illegal contradiction to the first, is cut off. What exactly is the connection between the provisions of the will and the terms of the instructions depends on the interpretation of the internal meaning of the will. It is very important to ascertain what the testator’s goal was, what he had in mind when making his order, in whose favor he decreed a benefit or restriction, and who exactly he meant to bestow or benefit; what exactly is the main thing at his disposal and what is subordinate. In the main, the will of the testator, of course, is subject to execution if the subordinate clause is deprived of its force due to illegality. The interpretation of a will can be strict and literal, or broad and free, in terms of its internal meaning and totality of parts. Where the law is inclined to prefer legal inheritance to testamentary inheritance and allows wills only as an exception, a strict and picky interpretation is more common; on the contrary, where the law favors a will, putting the will of the testator first, there is a more broad interpretation. Such was the Roman interpretation of wills, and such should be ours, for our law also, as a general principle, puts testamentary appointment ahead of legal inheritance and diligently protects the observance of the will of the deceased. Interpretation of the true will and intentions of the testator is a matter for the court, which, in each individual case, has to consider its particular circumstances, delve into the true meaning of expressions, take into account the characteristics of the character and relationships of the testator, sometimes his disposition and habits of expression and action. So, this is a matter of reason and art, in which it is impossible to indicate in advance general rules to guide the court, and nowhere does the law lay down such rules. Where the system of reversal (cassation) of court decisions has been adopted in legal proceedings, there the court’s considerations on this subject are recognized as not subject to verification by the cassation court. But if the court, in interpreting the will, set general rules for its guidance, then it would be necessary for the highest court to verify the correctness and validity of these guiding rules. However, judicial practice, guided by the instructions of Roman law and judicial authorities, has developed some instructions on this subject (as well as on the theory of evidence): all these instructions tend to elevate the spirit and reason over the letter, they strive not to constrain, but to expand the necessary freedom of judicial consideration. So, for example, it is accepted that if the testator uses an erroneous term, or one word is used instead of another, but his true intention is clearly evident from the contents of the will, then one should not be embarrassed by an error in one word or expression. It is fair to interpret an ambiguous word in the sense that is most consistent with the general meaning of the entire disposition and the entire act and the intention of the testator. The interpretation of the will, of course, must be primarily based on its verbal meaning: in the verbal content one must exclusively seek an explanation of the will and intentions of the testator. However, this rule is not applied in practice unconditionally. To determine the will of the testator, nothing can serve as a source and material other than the will itself; but when doubt concerns the details and the objects of this will, both in theory and in practice it is possible to seek clarification in external circumstances, in addition to the verbal meaning of the will, and to use evidence of all kinds for this. So, for example, it is impossible to prove the will of the testator either by acts or by witnesses contrary to or in addition to the verbal meaning of the will; but questions of this kind may arise: who did the testator mean by the name or nickname used in the will? In what amount should, in fairness and according to the nature of the relationship, be assigned the bequeathed, but indefinite in number, maintenance to one or another person who was in the maintenance and care of the testator during his lifetime? In such cases, it is impossible not to allow the possibility of clarifying and determining the will through acts, witnesses, etc. (cf. Demolombe. Traité des testaments, volume IV). For the interpretation of contracts, the law usually establishes some general rules. Many are disposed to apply these rules to the interpretation of wills; but when the positive law does not prescribe this application, it can be permitted only with extreme caution, and in any case only in the form of an aid, and not as a guide; for the rules for the interpretation of contracts are established in view of an act of mutual will, which is significantly different from a will. In our practice, the application of Art. 1539 to wills is especially dangerous. 1 part X t., which, even when applied to contracts, provides meager and ambiguous guidance. In any case, it is more dangerous here than anywhere else to base a decision on general rules of interpretation, because these rules, which do not have a solid and reliable basis in our country either in law or in judicial practice, in a court decision always take the form of arbitrarily taken provisions. So, for example, in the practice of French and German courts, a rule taken from the law on contracts (1157 Art. Code N.), that an ambiguous article should be understood preferably in the sense in which it can have any valid force. It happens that in our country, when applying this rule to the interpretation of wills, they understand it this way: “the interpretation should be aimed at finding the will of the testator, which can be carried out not contrary to the laws, for it should always be assumed that the testator, knowing the law, wanted only what was legal.” Without a doubt, such a rule would be extremely constraining for judgment if the court set it as a guide: there would be a danger that in doubtful cases, especially when interpreting an order surrounded by conditions, the judge would strive to force the order of the testator onto the law, and the mind would involuntarily be disposed to distort the true intention into the sense in which it fits the legal norm, or to cut off from the will that situation that does not seem to be completely consistent with the law, but without which the will would lose all its integrity and unity with the direct intention of the testator. On the contrary, the business of the court seems to be to determine, first of all, freely and without prejudice, what the will and intention of the testator is, and then to judge whether the will is in agreement with the law. Notes and case studies A. Preciseness is required in the presentation of the will. Many wills were destroyed because the testator wrote them according to his own thoughts, without coping with the legal definitions of rights and relations and without caring about the accuracy of the terms used. It seemed to him that his thoughts and will were clear, but he forgot that after death what he wrote would be detached from his personal consciousness and would be subject to objective interpretation, according to the meaning of the words and expressions used. It especially often happens that testators forget to indicate positively to whom the property is intended, using instead vague expressions: possession, complete disposal, etc., which, perhaps, meant property in the mind of the testator, but when determining the rights upon his death, they turn out to be terms indicating special categories of rights, which can be separated from the right of full ownership. Without a doubt, in many cases, from the totality of all parts and all expressions of the will, it is possible to determine what his direct will and intention were; but it is difficult to count on this possibility, because in interpreting a will according to its content, the views of judges can be very diverse, according to the personal views of each, according to education, inability to cover the whole without getting lost in details, etc. That is why every testator should, when presenting a deed, call, if possible, for the advice of an experienced lawyer. The will says: I bequeath the estate to the full disposal of Ivan, I hope that he will fulfill my will and will not leave my children and grandchildren in charity; Further, the will, mentioning Ivan’s rights, uses the terms - either disposition, or possession, and at the same time presupposes the ownership of other persons in the same estate. With such uncertainty, the act is not reliable. B. A will is a declaration of the owner's will regarding his property. To the extent that this will is legal, to the extent it is subject to execution. If there is anything illegal in it, it is deprived of force, but if it is then still possible to determine what the will of the testator was, to what and in whose favor, and in this form there is a place for the legal execution of such a will, then it must be executed. Our judicial practice has constantly interpreted the law in this sense and has striven not for a narrow and constraining, but for a broad interpretation of the will of the testator, within the meaning of the entire will, to protect, and not to eliminate this will. There are many examples of this in the decisions of the State Council. The merchant Vasily Vargin left his estate, uncleaned from state and private debts, and appointed his brother as his executor so that he would take over the management of his entire estate and trade, establishing a permanent office for this purpose and electing the most reliable of the testator’s relatives to carry out trade as an executor. Thus, without assigning ownership of the estate to anyone, the testator set up a continuous institution to manage it, authorizing the executor to choose a successor at his own discretion. The testator provided the benefits from trade and the income from it, according to the calculation of certain shares, to the relatives named in the will, to whom the executor is obliged to annually give proportionate shares of the profits; His responsibility was entrusted with cash payments, some of which were in necessary connection with the proposed trading establishment, for various services and actions for this establishment. Due to a dispute between the heirs, the will was subjected to judicial review. According to the final decision, the testator's order on the succession of executors, on the indivisibility and inalienability of the estate and on the production of trade on the remainder of the income was declared invalid. The basis for this was made in decisions and opinions that the testator did not assign the property to anyone and did not indicate an heir to it. This is how the Minister of Justice reasoned, at the same time believing that Vargin’s real estate should be left to his legal heirs; give the movable estate to them and recognize as obligatory for them only those distributions that do not depend on the structure of the trading capital and the existence of the executor. But the State Council upheld the granting of the estate to the persons named in the will. The will of the testator - this is how the State Council reasoned - is clearly expressed. Although the method of use determined in the will cannot be approved, this cannot serve as a basis for destroying the testator’s order and about to whom he provides all the benefits from use, for such a confusion of various orders would lead to a clear violation of Art. 1029. Citizen Zach. Destruction of a will on the grounds that some of its instructions, which do not agree with the law, are connected with legal instructions, would not only be contrary to this article, but would also lead to a clear violation of the will of the testator. Vargin wanted to provide for the named persons, and with the destruction of the will, most of these persons would be eliminated from the inheritance, and it would go to those precisely whom he wanted to eliminate. Therefore, the State Council recognized the heirs of the estate of the persons named in the will, the execution of which was entrusted to the executor, and in the event of his death, to the heirs of the testator (see Journal of the Ministry of Justice 1865, No. 1). V. Shchukin decreed in his will: I give all my estate into the possession of my own sons so that the monetary capital is given to them at their disposal not before each of them reaches the age of forty, and until then to keep these capitals on behalf of each of my sons in a credit institution, providing my sons with interest on these capitals. The question arises: for the sons of the testator, when does ownership of these capitals arise: upon the death of the testator or upon each of them reaching the age of 40? Do they, for example, have the right, before this deadline, to make a will about this property? It is fair to interpret a will to mean that it grants ownership (albeit limited) immediately upon the death of the testator. This meaning is also indicated by the literal meaning of the act; Moreover, each act must be interpreted in the sense most consistent with the prescription of the law and natural assumption; but with a different interpretation it would turn out that the testator did not appoint anyone as heir to his capital (1 General. Collection. Sen. December 20, 1868). D. There are decisions that allow the interpretation of the will of the testator not only according to the literal content of the will itself, but also according to the content of other acts when reference is made to them in the will: the decision in the Lavrova case. Journal Min. Just. 1862, No. 4. D. Merchant Konyaev bequeathed the mill to his two sons, Alexei and Nikolai, and allowed his third son Ivan to receive from them from the income of that mill, annually, forever, 1,200 rubles, or to receive at a time, for the redemption of this income, 10,000 rubles. Ivan died while his brothers were still alive, who then refused to make payments to his children, claiming that the right was granted personally to Ivan alone. And the plaintiffs, Ivan’s children, argued that the word “eternal” means continuous and constant payment. The closest thing to the literal meaning of the will is that the right to receive money annually is granted personally to Ivan and is limited to his life, i.e. his age (otherwise the word “eternal” would have no definite meaning). In this sense, the matter was decided by the 8th Senate; but 1 General Collection decided otherwise (decision 1871). E. According to his will, Ivanov gave up most of his estate to Imp. Human. To the company, including: in addition to the house, receivable debts and capital, in total, according to approximate calculations, 821,000 rubles, and part of the estate, in addition, was refused to Polyakova. After his death, there were also bank notes that were not named in the will. These tickets are Man. The company began to appropriate for itself, citing the fact that the entire amount of 821,000 rubles shown in the will had not been received from other estates, and proving by private letters from the testator that he had donated his entire estate to the benefit of Humanity. Society. But the State Council (1851) found that the testator nowhere said that everything that was not named by him in the act would go to the benefit of the person. Societies; Ivanov's letters cannot be accepted with respect, for only a spiritual will is considered a legal declaration of the owner's will in the event of death. Therefore, it was ordered: for the satisfaction of the Society up to the full amount, the remaining money from the tickets turned out to be provided to the heirs of the testator. At the same time, the State Council expressed that “every will, as an act that perceives action only beyond the boundaries of life, cannot and should not be explained otherwise than according to its literal meaning: the slightest deviation from this rule can lead to a perverse, although sometimes conscientious, execution of the will of the testator. Therefore, it was decided (Article 1031) that any cancellation or change in a will is subject to the same rules as the will itself. The exact execution of this law, which on the one hand reassures the testator that his assignment will be fulfilled if he observes all the established rituals, and on the other hand, provides for the heirs, is very important, and the slightest violation of it can entail many consequences harmful to the peace of families.” G. The will said: I give all my property to Tatyana until the day of her death; first, I allow her to appoint and give 500 souls from this estate to Fedor. Tatyana died without having time to make this allocation, and Fyodor, and his heirs after him, began to look for this estate by virtue of the will. The State Council interpreted the will in the sense that the will did not give Fedor a patrimonial right to the estate, and the allocation was left to the will of Tatyana, as the executor of the will (opinion. State Council. 1852 in the case of Counts Orlov and Okulov). Z. In Sutugin’s will it was said: “I leave all the estate to my wife Natalya for complete disposal, and to all her children - Pavel, Fedor and Peter.” When a dispute arose whether the children were granted patrimonial rights to the estate under this will, the Senate Department found that, according to the will, the widow could dispose of the estate only for life, and even then together with her sons, as a temporary and conditional manager, but the General Assembly recognized that, by the force of the will, it depended on the will of the widow to use the income unaccountably, and the sons had no right to either participate in the disposal or claim for themselves excrement during the life of the mother (Sborn. Sen. vol. I, N 77). The merchant Elin wrote in his will: “to give to my heirs from the first receipt to my wife Anna Vasilievna 10 thousand rubles. ser. from the day of receipt of my movable property and goods; and until that time I give myself the full right to add, subtract or otherwise change it; and for the rest of the estate my wife should be the full heir.” Who the heirs are is not specified in the will. A dispute arose about the meaning of the will. The widow claimed that the entire estate belonged to her; but the Senate (General Collection 1871) judged from the words of the testator that he contrasts his movable estate with all the rest of the estate, so by this he means immovable and gives it to his wife, and without indicating the person to whom the movable should go, obliges the heirs to give his wife 10,000 rubles. So, all his movable property must go to his heirs according to the law. I. In Zhadovsky’s will it was said: I ask my brother Anastasy (to whom the estate was bequeathed) to contribute 6,000 rubles. to such and such a church for commemoration. The successor, based on the expression “I ask,” argued that fulfillment was not necessary for him and depended on his good will. But the Senate clarified: all orders placed in the will cannot be recognized as anything other than an expression of the will that must be executed after death. No matter how this will is expressed, whether in the form of a request, desire or order, if it is expressed unconditionally and is not essentially contrary to the law, then it must be fulfilled exactly like the covenant of a dying person: The word “I ask,” without changing the will, can only change the order of its execution, it is precisely this that refers to Anastasy Zhadovsky, whom the testator asks to contribute the amount, i.e. to be the executor of his will, and he can refuse to fulfill this will himself, but he can neither destroy it nor subordinate it to his arbitrariness (Collected Sen. Resolution II, No. 829). In Rudin's will (Cass. decision 1872, No. 960), assignments were made from the capital denied to his son Vasily Rudin in favor of the testator's daughter-in-law and her daughters. It turned out that the amounts for this purpose were shown in the blanks the very next day after the will was presented to the witnesses. Therefore, due to the unreliability of the amounts, the entire assignment of extraditions in 5 paragraphs was declared invalid by the Chamber. But at the same time, she reasoned that, after all, clause 5 expresses the will of the testator, so that the capital indicated in clause 5 would not constitute the exclusive property of Vasily Rudin, but would pass in part to the heirs of another son. As a result, the Chamber recognized this capital as not included in the will and subject to distribution among all heirs. Such reasoning is hardly sound. It seems that in it the Chamber went beyond the limits of the power of judicial administration and did not interpret the will of the testator, but put its own will in place of his, beyond the limits of logical induction of thought. The will of the testator has either a qualitative or quantitative expression, but in both cases it must be determinative. In the above case, the will was expressed in quantity: to give so-and-so so much. Quantity is recognized as inauthentic, therefore, without quantity, all will has no meaning and loses all meaning; the right of the person to whom the issuance is due disappears, and the capital remains with the one to whom it was given in bulk. Instead, the Chamber directly replaces the quantitative assignment with a qualitative one, deducing that the testator wanted to transfer the capital to those persons who could inherit after him by law, to the extent of their legal share. In Ushakov’s will it was said: “I grant such and such estate to the freed Alexandra Izosimova, and according to it to her children for eternal and hereditary possession.” Izosimova died before the testator, and his heirs argued that the testamentary disposition had lost force; and on the part of Izosimova’s children it was proven that, according to the literal meaning of the will (and according to it, her children - without a comma - in perpetuity, etc.) the estate was assigned to Izosimova only for life, and as the property of her children, and that therefore, and in addition to the deceased Izosimova, her children should be considered the direct successors of the estate after the testator. The Senate (8th Dt, 1868) decided that since the will did not directly indicate the lifelong ownership of Izosimova, it should be understood that the estate was given to her and her children as property. Ivan Kurnosov bequeathed a house to his son Vasily, with the condition that he could occupy it himself or rent it out to strangers, but not sell or mortgage it. Vasily, having owned the house on this basis until 1866, died insolvent. On the one hand, a claim was announced for this house - a competition, considering it the property of the debtor, limited only in its disposal for the duration of his life, by the force of a will; on the other hand, the children of the deceased Vasily, arguing that, according to the meaning of the will, the house was given to their father only for lifelong ownership, and they, the grandchildren of the testator, should be considered the direct heirs and successors of property rights after the grandfather. Obviously, if we allow the possibility of assigning property to ownership, with restrictions on the right of disposal, then Kurnosov’s will should be interpreted in this sense. Loskarev bequeathed one house from among his property to the person indicated by him, and wrote about the other houses in his will: “sell them and add the proceeds to the capital in the Bank’s notes, which I leave all capital to be disposed of by the government.” A dispute arose about the meaning of this expression, resolved by 1 General. Collection Senate January 14 1872 Decided that the word meant giving the government ownership of capital (i.e., the treasury). To explain that the government should only be an intermediary for the transfer of capital to the heirs and that for this reason, without specifying the persons, the order should be invalid, would be inconsistent with either the general meaning of the will, according to which executors are appointed, or with its literal expressions, for the government means a legal entity to which property is bequeathed. Senate in 2 General. Collection On March 20, 1870, in the village of Korolkov, examining Lutonina’s will, I found that the testator left the estate to her husband for unlimited possession and disposal, with the understanding that this estate, upon the death of her husband, should go to his heirs, the Korolkovs, at the will and discretion of the husband; otherwise, i.e. due to the disrespect and disobedience of the Korolkovs, the testator gave her husband the opportunity to sell it and use the proceeds for the items intended by her in the will with her husband, and in case her husband dies without selling the estate according to the right given to him, the testator positively expressed that then the Korolkovs have full serf ownership over it. The exact meaning of the will shows that the wife refused the estate to her husband only for lifelong ownership, but left it to the Korolkovs as property. Although, at the will and discretion of her husband, Lutonina allowed the Korolevs to be deprived of hereditary rights in her estate, in case of their disrespect and disobedience, but only by selling the estate. Meanwhile, Lutonin, remaining until his death only the lifelong owner of his wife’s estate and not having exercised during his lifetime the right to sell the estate granted to him by the testator, made a spiritual will about it, in which he, having refused this estate at the disposal of an outsider, eliminated the closest heirs for disrespect. Such an order by Lutonin, as inconsistent with his wife’s will, was declared invalid. In the Shchukin case, the Senate (2nd General Assembly, January 1870), interpreting the purpose of capital so that the heir would receive it at his disposal only upon reaching the age of 40, recognized the granted right as ownership. Moreover, it is explained that according to the fundamental principle of interpretation of the legality of acts, every act must be interpreted in a sense corresponding to the requirements of the law; and therefore the will of the testator must be interpreted in the sense closest to the law. Interpretation of Shchukin's will in a different sense would have led to consequences directly prohibited by law, since Shchukin's will would not have included heirs to whom the property was granted ownership. Y. Kolychov bequeathed his entire estate to his niece, Tolstoy, but from among the estate he bequeathed a house to his sister, Varvara, and for her maintenance he assigned a capital of 175,000 rubles, so that she would enjoy the interest for life, and after her death, the capital would be used as directed by the testator, for the construction of a church and for various charitable institutions and distributions. If, it is said, Sister Varvara dies before me, then everything described above is destroyed. Varvara died before the testator, and after his death a dispute arose about the exact meaning of the testator's will. The Chamber interpreted the will of the testator (which was confirmed by the Senate) as follows: by assigning everything to Tolstoy, he makes an exception in favor of his sister Varvara. Assigning her a house to own and capital to use, he cared about the peace of his sister, about the people who should serve her, and, distributing capital for various purposes in the event of her death, he makes a very clear reservation: if his sister dies before him, then everything described above is destroyed; with the death of his sister, his main order regarding the entire estate: cash distributions, distribution of things could not be destroyed by themselves, for they do not concern the part assigned to Varvara. Only orders that took place if the sister survived the testator could be destroyed, i.e. her obtaining ownership of the house and the use of capital. According to this reasoning, firstly, the property written to Varvara passed according to the will to the main successor in the will, Tolstoy, and not to the legal heirs of the testator, who sought the contrary; secondly, the appointments made from the property written to Varvara were confirmed in force contrary to the demand of Tolstoy, who sought to overthrow them (see Cass. r. 1873, No. 21). K. In interpreting the testator’s expressions and in discussing the legality of his orders, it is fair to keep in mind the rule expressed in the opinion of the State Council on November 2, 1842, in the case of the will of Prince. Golitsyn: “and when the law is unclear, when there can be a double interpretation, the most natural, most probable meaning, closest to the general spirit of legislation, the meaning that appears above all others at the first glance at the letter of the law (?) and which does not shake the act of a private person based on this glance, should be taken.” During his lifetime, L. Ivan gave a power of attorney to a third party to make a deed of gift to the village of Ovseevo, in the name of his daughter, Ivan. While this had not yet begun, Ivan died and wrote in his will: in relation to the estate of my village of Ovseev, to act in accordance with the power of attorney given by me to such and such to make a deed of gift in the name of my daughter Anna. The court interpreted these expressions in such a sense that Ivan bequeaths the said estate to his daughter Anna, and the transfer of the said estate to her is approved, regardless of the execution by power of attorney, which has already lost its force with the death of the principal. See Cass. decide 1868, N 448. M. The will says: to free people who are employed by me in service, to give as a reward the two-year salary they receive in their service. The force of this order is considered impossible to attribute to a person who is not in personal service to the deceased, but who is hired as an attorney, albeit for a period of time, to handle business (Cass. decision 1867, No. 298). N. Gnevasheva provided the execution of her will to two executors: Rudnev and Ivanov, so that, having made the required distributions, they would each receive 4,500 rubles for their children for their labors and for the exact execution of her will, and if there was still money left, then distribute it to churches and to the poor. Ivanov died soon after the testator, without having time to begin making arrangements. Rudnev remained the executor, to whom a certain Petrov, from among the heirs, was appointed by the Magistrate to help. Three demands were made: Ivanov’s widow asks for 4,500 rubles. to your children. Petrov, citing the fact that he executed the will instead of Ivanov, asks for these 4,500 rubles. to yourself. Rudnev, having taken his 4,500 rubles, asks to give him 4,500 rubles. instead of the deceased Ivanov, since together they were assigned 4,500 rubles for their work as executors, and he alone remained as executor. The claim of Ivanov’s children is unfounded, for the money was assigned to him, although for his children, not as a gift from the testator, but as a reward for his labors, which did not exist; Petrov cannot be satisfied either, because remuneration for his labors is assigned not to every executor of the will, but to the executor, and specifically to Ivanov; Rudnev also demands incorrectly, because the reward was assigned not to both collectively and not to one instead of the other, but to each of the two named separately, and since this assignment is not in the form of a gift and not in the form of hereditary succession, then there is no increment from one of the executors to the other. According to the will of the testator, Rudnev must be satisfied with his share of 4,500 rubles, and distribute the rest among churches and the poor. O. Bar. Detaron bequeathed the income of the Alexandren patrimony to be used to finish the church there, then from the same income to build a hospital for the poor in the same patrimony, at the discretion and according to the income, and then to use the income for the maintenance of the hospital and church so that the local bishop with a leader would forever remain the leader and guardian of this matter. So, although in this will the director and guardian are indicated, the owner of the business or the owner of the estate is not indicated, and yet the order is made forever. The Senate recognized (Sb. Sen. Resolution II, No. 240) that this article does not contain the definition required by law into whose ownership or which department the patrimony should go, and therefore the order was destroyed. It seems, however, that with a more extensive and fair interpretation of the will, it could be concluded that the estate was bequeathed in favor of the church, with a specific purpose for the income. P. Countess Zubova wrote in her will: I leave all my family and acquired real estate estates to my son, Count Platon Zubov, as my only heir, so that he tries to preserve them without debt and intact. I leave everything in excess of the amounts shown in the above-mentioned points after my death in cash, credit notes or interest-bearing papers to my son, Count Platon Aleksandrovich Zubov, so that the capital thus obtained remains inviolable, and my son could enjoy only the interest. After the death of my son, all these amounts should remain inviolable for his children or grandchildren, who will be able to use interest from them for a period of 30 years, counting from the day of the death of their father or grandfather, and after the specified period, they can divide all these amounts equally among themselves and dispose of them at will; and if my son, Count Platon Zubov, ended his life childless, then all the above-mentioned sums should be given to the children of the late nobleman Sazonov so that from the date of receipt of these sums for 30 years they would be kept in state credit institutions, and they would use interest on them; After this period, appointed by me, the Sazonovs can divide all these amounts among themselves equally, own them and dispose of them at their own discretion. What kind of diamonds, pearls and other precious things there will be after my death, which are listed in the inventory and have not been given to certain persons in memory, I leave for the keeping of my son so that he keeps these precious things in a safe place, and if he has children, then these precious things should be divided equally according to the assessment not before the age of majority of the youngest of them, and otherwise, if my son is childless, then all these precious things should be given after his death by Sazonov. In the event of a dispute, it was necessary to interpret this will, i.e. judge how the rights of Gr. are defined in the will. Zubov, whether he was appointed successor to the testator in monetary capital and diamonds on the right of ownership or only on the right of lifelong use and storage, for in the latter case the heirs after Gr. Zubova would introduce the children and grandchildren of Gr. Zubova, and instead of them the Sazonovs; in the latter case, these persons would be substitutes after Gr. Zubov's heirs. The court, content with considering the literal meaning of those paragraphs that contained the controversial orders, interpreted them in the sense that the disputed property (including diamonds left for safekeeping) was provided to Gr. Zubov as an heir on the right of ownership, limited in the right of disposal; therefore, the court saw in the further determination of succession to this property, after Gr. Zubova, violation of the rule contained in the note. to 1011 Art. Zach. Citizen, and declared this determination invalid. This interpretation in the court decision is justified, by the way, by the following consideration: “judicial practice convinces that testators in general very rarely, when they bequeath something as property, in this case express their will to leave it in property with this very term, but they constantly use the words to designate a will into property: I bequeath, leave, give, provide, assign, refuse, bless (in the manner), upon my death it should pass, must divide, can receive, etc., or name the person to whom the property is bequeathed as their heir; For this reason, the closest interpretation of the will of the testator regarding whether it is bequeathed for ownership or use should be sought in additional words associated directly with the above expressions, and not in further words not directly associated with them, but only put in relation to them, since the latter denote only collateral definitions of bequeathed rights; so, for example, orders - I leave, assign for ownership or use, clearly and definitively express the direct will of the testator so that the bequeathed property belongs to the property and is only for use; but the instructions: I leave in order to urgently, even for life, only use it - do not express the direct will of the testator, so that the person who is left under the secondary definition of limiting the power over the bequeathed property until only the use of it, does not have an ownership right to it, which from this person could not manifest itself in the transfer of the bequeathed property at the end of the period of the restriction imposed on it, to the heirs of this person by the right of transfer of inheritance; and therefore, when the testator declared his will about any property only in words about leaving, assigning it to such and such, without directly adding the words: for use, one should always prefer to explain the will in the sense of leaving ownership, especially since, in the form of general interests of property, it is always preferable to establish property, although limited, than to establish long-term use, ruinous for property, establishing highly harmful uncertainty in property, and leading to disputes and litigation" (see. Cass. decide 1870, N 1856). This interpretation, which is in the power of the court, as a consideration of the merits of the case, is not subject to cancellation after the final decision; but its soundness can be doubted, and the general guiding rule to prefer the explanation of the will in the sense of leaving property could in other cases lead the court to a strained conclusion, completely inconsistent with the purpose and intention of the testator. In this case, another court, with equal, if not greater, validity, could interpret the order in the opposite sense, i.e. that the capital was left by Gr. Zubov is only for lifelong use, and the diamonds are for safekeeping only. R. In interpreting the condition, one must first of all adhere to the literal meaning of the expressions used and beware of, in determining the purpose and intention of the testator, not assigning to him a will that he did not express at all. It is not surprising for the court to fall into this error, in view of the various interpretations presented by the disputing parties, of which one, analyzing and decomposing the orders of the testator, tries to insert them into legal, and the other into illegal, formulas of the last will; sometimes the parties try to raise questions about the meaning and consequences of the last will that do not flow directly from the literal meaning of the testamentary dispositions. In the above example, the testator directly stated that upon the death of her son, his children and grandchildren, if he had them, should receive the estate; therefore, it directly indicated these successors, and therefore it was possible to raise the question of the legality of this order. But here’s another example: Baroness Frank, having given the estate for lifelong ownership to her son Gavrilenko, said that if he dies childless, then she will appoint Levshina as heir. When a dispute arose against this will, the disputants began to prove that the testator had in mind to appoint her son's children as heirs, if any, and therefore, she granted the estate to persons who did not exist. It is obvious that the interpretation of the will of the testator in this sense is strained, going beyond the limits of verbal expression, which in itself is sufficient to understand the stated condition. Baroness Frank did not directly express in her will that she would designate her son's children, if any, as her heirs. From the expressions she used, it only follows that Levshina will be the heiress if Gavrilenko dies childless; Levshina is not an heiress if Gavrilenko dies, leaving behind children. It is possible to discuss the will of the testator, insofar as it agrees or disagrees with the law, only in what this will was expressed; and if the testator made the transfer of his estate dependent on the specified event, one should only judge whether this condition expressed in the will is legal; but there is no reason to raise the question of what would follow if the condition was not fulfilled or in the absence of the event specified by the testator, when in this case there is no resolution in the will at all that would be subject to discussion. In the will of Bar. Frank has no order at all about to whom, according to her special will, the estate should go if her son dies, leaving children, but there is only an order about who the estate should go to if her son dies childless. The assumption that the testator could have such an idea is derived from the fact that Gavrilenko’s children would, after the death of their father, be the direct legal heirs after the testator; but it is hardly reasonable and fair to accept such an assumption, not expressed in a single word, as an order of the testator. Such a conclusion would be arbitrary and speculative: with equal probability it would be possible to assume that Gavrilenko himself, whenever he died without children, should have received ownership of the estate at the moment of his death, and that it would have been included in the inheritance that was to be opened on him. But the most direct and natural meaning of the will of Bar. Frank leads to the conclusion that in the event of Gavrilenko’s death with children, the estate, by force of 2 clauses 1110 of Art. 1 part X t., should have been the legal heirs of Baroness Frank. This conclusion seems even more obvious if the same orders of the testator are applied to persons who are not related to her by blood, i.e. if it were not for her son, but for a stranger, she appointed her as the lifelong owner and decided: if he dies childless, the estate should be given ownership to another stranger. S. Merchant Kozhukhov bequeathed his entire estate to his youngest daughter Elena Rusanova so that she would give 100 thousand rubles to his grandchildren, and to his eldest daughter Evdokia’s children, when they came of age and were in good behavior, which he gave to the discretion of his youngest daughter Elena, 100 thousand rubles, however, so that this amount would remain at her, Elena’s, disposal and so that the distribution of it to those grandchildren would depend on her him, and leaving him with him forever, if his grandchildren do not deserve this reward by being decent to their rank and not shameful behavior, and against the will of her Elena, they, his grandchildren, will never demand this amount and any increase in it under any circumstances. Further, the testator also wrote that the issuance or non-issuance of this amount is left to the will of his daughter Elena, upon the arrival of those grandchildren of his age, at the discretion of her herself, Elena, who is fully relied on to fulfill his will in perfect accuracy, as alien to greed; if the grandchildren, upon reaching adulthood themselves or before any of them reach it, ask against the will of his daughter Elena for the 100 thousand rubles assigned to his grandchildren, then without starting any business, at the first request of anyone, he bequeaths all the estate given to his daughter Evdokia, without any exception, to give at the same time into the eternal and hereditary possession of one of his youngest daughter Elena and to give her forever and the money assigned to his grandchildren is 100 thousand rubles. After signing this will by the merchant Kozhukhov and three witnesses, the testator Kozhukhov made a handwritten note on it with the following content: “I have assigned to my grandchildren, my daughter Avdotya’s children, 100 thousand. rubles, to be given to my daughter Elena when they come of age, without relying on interest, and now instead of this I bequeath to my grandchildren and in general with their mother Avdotya Alekseeva, after my death, after five years, to pay legal interest until they reach adulthood, and not to demand it until five years.” When one of these grandchildren, Nikolai Shilov, having come of age, began to demand bequeathed money, Rusanova refused, arguing that the petitioner had not proven to her that he deserved the gift due to his lifestyle and trading activities. Therefore, the court had to decide what kind of right was granted to Shilov under the will. The following interpretation seems fairer: from the meaning of all the expressions used by the testator, it is clear that the issuance of the appointed award to the grandchildren is left to the will and discretion of Elena Rusanova, but it is also clear that she should deprive them of this award, not without reason, and her will should be in accordance with the intention of the testator. The defendant says that they did not have and do not have any right to the bequeathed amount. But as soon as Kozhukhov, by an act publicly announced, designated a special amount to be given to his grandchildren, they also received the right to this amount in accordance with the terms of the will. There is no doubt that Elena Rusanova, having accepted all of Kozhukhov’s property under the will, could not mix the amount assigned to her grandchildren with her own property and was only the custodian of it until her nephews came of age: the testator even charged her with the obligation to give them, together with their mother, a percentage of this amount until they came of age, therefore, in her hands it consisted of someone else’s property assigned to the person of her nephews. Upon reaching adulthood, they could demand that their aunt transfer the bequeathed amount to them as property. Then Rusanova had to either transfer this amount to the Shilovs, or, according to the meaning of the will, decisively declare that she was depriving them of it for bad behavior known to her personally: only from that moment the bequeathed amount would turn, by the will of the testator, into the property of Rusanova. But Rusanova did not make a response in this sense and it is not clear from anything that before the start of the case she declared her intention to deprive them of their remuneration, and at the trial she only responded that they did not prove to her their commendable behavior, but she herself does not directly point out their bad behavior. For these reasons, it was supposed to approve Shilov’s claim, but the matter was decided by the State Council in a different sense (see decision in the Journal of the Ministry of Justice, 1865, No. 1). Other questions arose regarding the execution of the codicil to the will, which ordered the grandchildren, together with their mother, to pay annual interest on 100,000 rubles. until they come of age. Interest was not paid, and the requirement for it arose 20 years after the death of the testator. There were 5 grandchildren; in addition, there were two who died after the death of the testator. The question arises: is it necessary, when calculating the capital and interest on the fractional parts of each of the grandchildren, to exclude from the account the share of the deceased after their death, or should it be necessary, by calculating the total amount of capital and interest for all together, to pay to the living in increments everything that would be due to the deceased? Among the grandchildren there are men and women: should their shares be calculated equally or should the especially male and especially female shares be taken into account according to the law of inheritance? With children, their mother also participates in receiving interest: will the mother’s share be equal to the children’s share? The calculation of interest is based on the day the heirs come of age: but they are not equal in age. Should the calculation stop when the eldest reaches the age of majority or should it continue until the youngest of the grandchildren reaches the age of majority? And in the latter case, should we exclude from the account the shares following the heirs, who have meanwhile reached the age of majority, or should we continue to calculate % of the entire capital amount, up to and including the last age of majority? § 75. Taking possession under a will and disputes over a will. - Various ways of arguing. – Fees for the transfer of estates under a will The will, upon approval for execution or upon appearance, is submitted for taking into possession, which is carried out according to the general rules for taking into possession of real estate (Constitution of Civil. Court. Art. 1424–1437; Law of Civil. Art. 709, appendix 1097; 1296–1304, 1308, 1313, 1314). It often happens that successors close to the estate, without having any disputes or objections in mind, take possession of the bequeathed estate without formal entry; however, this formality should not be omitted - it has practical significance. The commissioning gives certainty to the right: 1. The day of commissioning is considered the day of the actual transfer and strengthening (1432 Est. Gr. Court.); 2. It is important to prevent by introducing a possible dispute against the will and to cause publication, from which the period for the dispute is calculated where judicial statutes have not been introduced (1098 Gr. Law., 1431 Est. Gr. Court.); 3. An introductory sheet is required according to notarial rules to execute a new deed on the estate. The transfer of movable property is accomplished by handing it over according to the inventories (1297 Civil Law). This formality, which is often omitted, is also essential in the interests of the person handing over things, the person receiving them, and third parties who may have claims against the successor. It is necessary to verify exactly what items were included in the property accepted under the will in order to prevent possible disputes and disputes on this subject. So, for example, if the remaining estate is insufficient to satisfy the deceased patrimonial owner, a claim may arise against the successor of the movable property, and, in order to determine the measure of liability, it will be necessary to take into account the amount accepted, and in this case, the successor of property accepted without an inventory may pay more than the proper amount. Therefore, as a precaution, when accepting movable property, you should invite a notary to make an inventory. A) According to the explanation of the Senate, a will alone is not enough to take possession of bequeathed property: it can serve as the basis for taking possession only in connection with an act of consolidation proving the testator’s right of ownership, or in connection with evidence of his acquisition of the bequeathed property by prescription (Cass. decision 1876, No. 302; 1878, No. 60). B) On the protection and surrender of inheritances from protection. property, see § 45 above. Particular difficulties arise in the case when the inheritance is opened by a will and the estate must be handed over to the successors under the will or executors. In 1867 (N 177) Cass. decide Senate, from which it could be concluded that the surrender of property requires a special judicial ruling approving the rights under a will or the rights to execute a will. But subsequently (1872, No. 885; 1882, No. 14; 1883, No. 26) the Senate itself explained that the aforementioned reasoning loses its force after the subsequent approval of the time in 1869. rules on spiritual wills: according to these rules, for the surrender of property, a court ruling on approval of the will for execution is sufficient. About the same - decision of 1873, N 1554. Then it is asked whether it is possible to hand over the property not to all the heirs or executors named in the will, but only to those who have appeared and are among the persons? The Senate, in its ruling of 1872, No. 885, argues that the justice of the peace cannot remove the security and give the property to one or more of the heirs appointed by the will, since one or more do not combine those rights regarding the execution of the will, which under Art. 1084. I part X t. belong only to all heirs in the aggregate (note that this expression about the aggregate is not at all in the above article). Here the Senate distinguishes between two cases in which peace rules. judges must be significantly different. “When, according to a will, under which an executor has not been appointed, or he has renounced his title, and, therefore, the will is executed by the heirs themselves, property is bequeathed to one or more heirs, so that in order to execute the will, all that remains is to order the actual transfer of property to the heirs, then the justice of the peace, upon receipt of a claim from one or more, or all heirs according to such an approved enc. the court to execute the will, is obliged to make an order to remove the protective measures taken from the property bequeathed on the basis explained and to issue it to the heirs who made the demand, each according to their belonging, regardless of whether the demand was made by all or some, or even one of the heirs specified in the will. On the contrary, if in the spiritual, for execution, approved and executed, in the absence of executors, by the heirs themselves, the will of the testator is expressed in such a way that, in relation to the transfer of bequeathed property to the heirs, it can be executed only by prior one or another (?) order, for example, by the sale of the estate, by the conversion of certain interest-bearing papers into money, in a word, by the preliminary liquidation of the affairs of the deceased, then it is obvious that in such In this case, the justice of the peace cannot accept all of these orders, as they are not related to his duties as a justice of the peace and are incompatible with it. In this case, according to the exact meaning of Art. 1084. X t. 1 part, which states that wills are executed either by executors or by the heirs themselves, in accordance with the will of the testator, the magistrate can remove the security measures taken by him and, in order to fulfill the will of the testator, hand over the protected property to the heirs only when the will appoints one heir who has appeared, or even two or more heirs, but all of them will appear before the world. judge and make a demand for the transfer of property to them to carry out the will of the testator. If, on the contrary, according to such a will, the execution of which is associated with various orders regarding the liquidation of the affairs of the deceased, there is no executor and several heirs have been appointed, but some of them have come to the world. judge with a requirement to transfer only some or one bequeathed property, and not all, then in this case, as such, in which there is neither an executor nor all the heirs, who together, according to Article 1084, replace the executor, the worlds. The judge cannot remove the measures to protect the property and give it to one or more of the heirs appointed by the will, since one or more heirs do not have the same rights regarding the execution of the will that, according to Art. 1084. belongs only to all heirs collectively.” It is hardly possible to fully agree with these arguments of the Senate. It seems that this question should be posed somewhat more broadly than it is posed in them. Is it really the order of the world? The judge depends on the nature of the testator’s orders, on the nature of the property bequeathed and those actions that are assigned to the successor of the property, or the duties that are assigned to this or that property. The magistrate is assumed, although in an indisputable manner, not to be a mechanical executor of obvious rules and therefore cannot be deprived of the right or released from the obligation to reason in accordance with the meaning of the civil relationship. It is true that our legislation does not distinguish an heir from a legatee and thus gives rise to many misunderstandings, but to resolve them it is possible to turn to the general principles of civil relations. It is obvious that any order of the testator, which establishes any extradition, benefit, etc. in favor of a third party who is not one of the immediate successors of the inherited property, the right arising for this person to demand corresponds. It does not have the right to take a thing or money, but it has the right to demand from the one who receives the mass on which the demand falls. Who or what it falls on in this case depends on the nature of the orders and property. If the order is directly assigned to known property or, by its nature, falls on no other than known property, then the claim can only be made against this property or against its holder. If the order is made general, indivisible, and by its nature (for example, cash delivery) falls on all property and on all successors, then the demand is distributed to everyone, according to each person’s share; sometimes, due to the property of inseparability (for example, the issuance of this or that thing), falls on everyone who is in the persons and who has entered, without waiting for others, into the disposal of property. On the other hand, property directly bequeathed can be bequeathed to one specific person. Obviously, in this case, this one person can receive it from the world. judges. There is not the slightest obstacle to handing it over to this person, without waiting for the appearance of other persons to whom other property has been bequeathed. One property can be bequeathed to several persons jointly. One of them appeared to receive it, the others did not appear. According to the Senate decision, it turns out that it is impossible to hand it over to one without waiting for the others. Therefore, due to the non-appearance of some, due to their death, due to the discovery of an inheritance after them and the disputes arising about it, due to an unknown absence, etc. does all property remain locked to all other accomplices? I cannot agree with such a view, considering it inconsistent with the essence of the right to which it relates. Consolidated law cannot be confused with separate law. The aggregate right belongs to one as well as to others; the aggregate right of inheritance belongs to the one who is among the persons; if there are no other participants, one of them will be answerable to those absent when they appear. Combined with cumulative succession is also the right of increment from other partners when they are not available. So, I do not see the slightest obstacle to the justice of the peace handing over the estate to one of the joint successors until others appear. For such an available successor, I don’t see the slightest obstacle to fully satisfying (under my response) all persons who have the right to have the entire bequeathed property issued to them. As for the difference between direct execution, in kind, and execution requiring preliminary orders (a concept that is not at all identical with the liquidation of the affairs of the deceased), this difference hardly has the importance assigned to it by the Senate decision. In any case, it does not constitute a legal basis for resolving the confusion encountered in this case. It is important not from a legal but from an economic point of view and may embarrass the responsible official, but should hardly seem like a decisive moment for a judge. B. The wife received after her husband his movable property, which he himself valued in his will at 2,000 rubles, and then, collecting on her husband’s debt document from his heirs in the real estate, she accepted a share of the claim for her part, in proportion to the value of the received movable property, at 2,000 rubles. The heirs argued that the movable property was worth more and attributed the entire claim to the widow, since she accepted the property bequeathed to her without an inventory or valuation. The Senate decided that she could not be blamed for this, since the law (1226, 1297 art.) does not prohibit heirs from taking possession of property even without an inventory (Cass. decision 1872, No. 474). According to the rule of Civil Laws, the effect of a dispute brought against a will is different, depending on when the dispute is brought. If a dispute arose upon approval of a will for execution, but before the estate came into someone’s possession (Civil Law Articles 106612 and 106614), and in areas where Judicial Statutes have not been introduced, upon entry into possession, then the disputed estate is transferred to guardianship; if there was no dispute, then the entry occurs without hindrance. The completed takeover is published in the statements. Exactly - after the input is completed, a note is made about this on the act itself, i.e. on the will. According to the message of the bailiff who made the entry, the senior notary notes the entry in the register of serf affairs and reports the announcement to the Senate printing house for printing in the Senate announcements, according to the prescribed form (Constitution of Civil. Judgment. 1431 and Criminal Code 1 of the Department. Sen. published on March 13, 1867). The special significance of this publication is indicated for areas where judicial statutes have not been introduced, in Art. 1098. Zach. Citizen From publication, a two-year period is considered, during which everyone who considers themselves has the right to challenge the will can file a dispute against it (but then, as a general rule, the estate is not taken into custody, but remains under prohibition); If within two years no one comes forward with a dispute, then after this no dispute is allowed, and the estate remains the property of the one to whom it was bequeathed. For minors, this period is calculated from their coming of age. This two-year period for a dispute over wills is of the same establishment and significance as the two-year period for challenging deeds of sale, and therefore the remark made generally about the 2-year period in part 1 of this work (§ 37, 41) applies to this period. On the application of a two-year period to a will dispute, see the decision of the Senate, Zhurn. Min. Just. 1860, N 5, p. 257. In Cass. decide 1873, No. 794, it is explained that the two-year period is established only in the types of fencing the rights of ownership of the estate acquired by deed (this is derived from the consideration of Article 1098 of the Civil Code of 1524 and 1525 and their sources). So, after a 2-year period, a dispute against a right acquired by will is not allowed only when this right is exercised by taking possession. And when the estate has not yet reached the person to whom it was bequeathed, and is in the possession of another person, then the period does not apply. 1100 st. contains a rule on how to deal with bequeathed estates when a dispute over the will is brought. This rule has in mind a special case when the dispute relates to the ancestral origin of the bequeathed estate. The estate is ordered to be taken into guardianship when, according to the documents submitted by the plaintiff at the very filing of the dispute, the estate turns out to be a family estate; otherwise, only a prohibition is imposed on the estate. In general, the legislation placed in Art. 1098–1103. Zach. Gr., relate especially to questions about the ownership of a will and its position in the event of a dispute over a will, and therefore they should be applied in a narrow sense. So, in 1099 Art. It is said that disputes over spiritual wills in acquired immovable estates are allowed in only two cases: either by advice in the false preparation of them, or by clear evidence that the estate, called acquired, is ancestral. From opinion State Sov. 1827 (P.S.Z. N 871), from which this article is extracted, it is clear that the subject of the legalization was to establish additional rules to the decree of March 31, 1815 on the transfer of disputed estates into trusteeship, and the State Council had this goal in mind primarily. From 1099 Art. It is impossible to draw such a conclusion that, in addition to the types and grounds of dispute against wills indicated in it, others are not allowed at all, because the law, by establishing various rules on the preparation and content of wills, thereby presupposes the possibility of violation of these rules, and, consequently, a dispute about the violation. Moreover, the edition of this article is such that it is hardly possible to understand it separately, without connection with the subsequent article, with which it is related in subject matter; taken separately, it does not have a specific meaning and therefore in practice has always remained unused (cf. decision of Sen. in the Vargin case, Journal of the Min. Justice 1862, No. 12). Of all the acts of civil life, wills are perhaps the most often subject to dispute: perhaps because the incentives for dispute in this case are more lively and urgent, and the hope for the success of the dispute is supported and nourished by the many accidents and formalities with which the drawing up of a will is associated. A household will is drawn up without publicity, but by a close circle of close people, often in deliberate secrecy, which is strengthened by the aversion characteristic of many from the publicity of their property and the timidity of the thought of death and orders reminiscent of it. In view of this secret, the bewilderment and suspicion of the legal heirs flare up, incited by indignation against unfavorable orders or disappointed hope, and induce a dispute, the purpose of which is to overthrow the will - either because of the illegality of the instructions, or because of the violation of essential formalities on which the recognition of the authenticity of the will depends, or finally because of the circumstances that accompanied its preparation and are incompatible with the authenticity will expressed in the act. The following methods belong to the last category. 1) Announcement of a positive dispute about the forgery of the will in its material composition, i.e. announcement of fraudulent signatures. In this case, the dispute follows the general procedure established in 555 and following articles of the Constitution. Citizen The court, and remains the responsibility and proof of the one who brought this dispute. It depends on the discretion of the civil court, in accordance with Articles 561 and 563, to recognize the act as forged or to eliminate the dispute about forgery, if no one is directly accused of committing it. 2) Declaration of doubt about the authenticity of the will, if it has not yet been certified (543 Art. of the Constitution of the Civil Court), then the act is examined in court according to the procedure established by 545 and the following articles. 3) A declaration that the testator, at the time of making the will, was in a state of insanity or insanity incompatible with the integrity of his mental faculties and will. Without a doubt, the law leaves the possibility of such a dispute against the will of such persons who were not recognized as insane or insane during their lifetime, but the obligation is to prove the dispute, i.e. the actual state of insanity and insanity lies with the bearer of the dispute (cf. about this decision of the Senate, in Collection. Cass. decision. 1868, No. 331). But this dispute does not necessarily imply forgery in the will, for it may happen that the witnesses and other persons who participated in the preparation of the act remained in error regarding the mental state of the testator or were led into error. 4) Regardless of the material falsity of the act (instrumentum) of the last will, it is possible to prove that the testator in drawing up the act did not act freely, but under the influence of violence or deception on the part of those around him, and that the witnesses and other persons who signed the will acted deliberately falsely. This means essentially proving not the material falsity of the act itself, but the falsity of the last will contained in the act, and therefore a dispute of this kind differs significantly from that indicated in 555 et seq. Articles of the Constitution Gr. Court. dispute about forgery. That dispute can be declared anonymously, extending exclusively to the written act in its objective meaning; Therefore, when there is no direct accusation, one written act is examined, and the dispute can be resolved by a civil court. On the contrary, the dispute we are now talking about is unthinkable without reference to an action that exposes deception or forgery, and therefore to the person guilty of one or the other, and therefore a dispute of this kind can be brought and is subject to investigation and resolution only in criminal proceedings, and on the accuser, according to Art. 299. Est. Corner. The court is required to provide evidence of the credibility of the accusation. 5) Finally, there are often cases when the disputant, without pointing out the forgery and without directly accusing anyone, wants to prove only the moral or material impossibility of the will of the testator, expressed in a certain sense, or to prove that the testator, at the time of drawing up the will, was in such physical and mental relaxation from decrepitude and illness that he could not have a clear concept and reasonable will; Moreover, they usually refer to the testimony of people who served near the patient and saw him, or to the doctors who used him, as proof of his relaxation. Unconditional acceptance and investigation of such disputes is hardly possible, because it is almost impossible, in view of the correct and correct witnesses of the certified will, to restore through research those moments that include the expression of the last will, the drawing up of an act according to it and its certification by signatures. How to find out at what moments of illness the testator, despite all his physical weakness, retained full consciousness, at what moments he lost it, and with which of these minutes coincides with the decisive expression of his will in words, its presentation in writing, the presentation of what was written to him, his consent, the invitation of the handicapper, witnesses, etc., and the act of authenticating them? All these are moments necessary in drawing up a will, but do not leave any separate traces in the act, finally drawn up, and the decomposition of the act into all these moments is hardly necessary and hardly possible - only in order to resolve the vague doubt of the disputant. In this case, the disputant, coming to the court with his doubts, although based, perhaps, on some fragmentary events, demands that in order to confirm the will, the entire series of events and actions preparatory to the final drawing up of the will be restored in an unbroken chain. Such a requirement cannot be satisfied: otherwise the legal order of evidence in claims would be distorted, and legal assumptions and signs of the authenticity of acts would be overthrown. It is not for nothing (cf. the decision of the Senate in the Kosovich case, Zh. M. Yu. 1864, No. 8) “the law to prevent forgery in a will established various formalities, which it recognized as a necessary condition for the validity of testamentary dispositions, despite the fact that under other circumstances of time and place and often in the last hours of the dying person, the execution of these formalities is associated with great difficulties.” It is a different matter if the disputant, at one or another moment in the preparation of the act, directly points to an action associated with forgery, therefore, destroys at the root and in essence the legal formal signs of the reliability of the will: in this case, according to a direct and definite instruction and accusation that remains the responsibility of the accuser, there is a reason, there is an opportunity and a legitimate goal to begin the required investigation. A. Olonkin's will (see § 74 above), which came into force in 1812, established the conditional right of Ivan Demyanov in the event of the death of the sons of Peter Olonkin. This case opened in 1849, after the death of Petrov’s son, Ivan Olonkin, and then only this Ivan’s sisters declared a dispute over the testamentary condition established in favor of Ivan Demyanov. The question arose whether they had lost the right to challenge the will, which came into force 47 years ago? For this, it was necessary to understand at what time the legal opportunity to argue opened up for petitioners (the right to sue was opened), and they could consider their rights violated (legitimate reason for a dispute). The Senate reasoned as follows: the right of the sisters Iv. Olonkin's ownership of his estate arose only after his death. Until then, they could not claim their inheritance rights to the estate of their living brother, and by virtue of these rights only they have the right to file a claim against a testamentary disposition that does not agree with these rights. These rights opened up for them only with the childless death of their brother - a circumstance that they could not have foreseen; therefore, they cannot be blamed for not filing a claim before 1849, for which they had not previously had the legal opportunity (see the decision in the Journal of the Min. Justice 1861, No. 11). B. Bobkov bequeathed his property for full direct possession and disposal to his wife so that she would support and raise her son and daughters, together with her son she would clear the estate from penalties and prohibitions, and would allocate the specified portions to her daughters upon marriage, and with the consent of the son, more specified portions. If there is not enough available capital to allocate or pay off debts, the wife, with the consent of the children, is given the option of mortgaging or selling part of the estate. Upon the death of the wife, all of it should become the property of the testator's son. Upon Bobkova’s death, the estate passed to all children in undivided ownership; but after the childless death of her son, it turned out to be necessary, during a dispute about the inheritance, to determine, according to the meaning of the will, whether Bobkova’s estate was given into ownership or into lifelong possession, i.e. after whom the children inherited - after the father or after the mother. It was recognized that the mother had the estate for life (Cass. decision 1868, No. 25). V. Book Golitsyna, having a son Arkady, in 1834, according to her will, gave her entire estate for lifelong ownership to her husband, Prince. Sergei. In 1835, after her death, this will came into force. In 1847, after the death of Prince Arkady, his heirs began to refute the lifelong ownership of the prince. Sergei and the legality of the princes' wills. Golitsyna. The State Council in 1851 rejected this dispute because it was so long ago, recognizing that when Arkady himself, 10 years later, after coming of age, did not argue against his father’s rights and his mother’s will, then Arkady’s heirs could not argue either. G. Zarudnaya bequeathed the estate to her son-in-law Shreter, and in the event of his death without children, to her daughter Shidlovskaya. The testator died in 1838, and Schröter, having received the estate, died in 1848. After Shreter's death, the testator's granddaughter, Shirkova, the daughter of her son, began to challenge her grandmother's order to grant the estate according to Shreter - Shidlovskaya, as illegal. The question arose: did the disputant miss the statute of limitations for filing a claim against the will? The Senate (General Sobr. Moscow 1855) decided that it did not miss, recognizing that the right began for Shirkova only from the time of Schroeter’s death, because the testator’s order to grant the estate to Schroter, as legal, was not subject to challenge, and equally, Shidlovskaya’s right to that estate had not yet begun. If Shirkova, after the death of Zarudnaya and during the life of Schroeter, had brought a claim for the will, she would have had no one to bring it to, for her claim extended not to the right of Schroeter, but to the right of Shidlovskaya, the latter right was conditional, because in its essence it was made dependent on the childless death of Schroeter. During his lifetime, Schröter had neither the right nor the obligation to be responsible for the supposed, but not yet formed, rights of Shidlovskaya. So, only with the death of Schröter did the defendant appear on the merits of the claim that Shirkova brought, and therefore it cannot be said that Shirkova’s right to claim until then was open and possible to exercise. D. According to the village of Yochemzina State Court. The Council (1873) expressed that the main evidence of the authenticity of a will is, according to the law, compliance with the forms and the certificate of the signatories in the sense of Art. 1050. When the conditions are met, the will d.b. recognized as genuine, would the disputant prove that the certificate is not true and that the testator was in fact deprived of sound mind and memory when signing the will. The heirs under the will are charged the fees established for the transfer under gratuitous acts; These duties are levied on the same basis as on property transferred to heirs by law (see § 49). Before the payment of the duty, or ensuring its payment, wills with an inscription on approval are not issued from the court, and no determination is made on the entry into possession of the immovable estate and on the transfer of movables (Constitution of the Civil Court, Art. 1408, note; Vol. V, ed. 1893, Establishment of the Duty, Art. 152, 166, etc.). Application. Marriage law in force in the provinces of the Kingdom of Poland To define marriage relations in the Kingdom of Poland, a law of 1825 was originally issued, in order to abolish the existing rules of the Napoleonic Code, constituting a transitional measure from the complete secularization of marriage according to the code to the restoration of church principles in marriage. Further development of legislation in this direction followed in 1836, with the publication of a new regulation on the marriage union, which is in force in the provinces of the Kingdom of Poland to this day. The essential provisions of this law relate to the Roman Catholic confession, to which the mass of the population in the Kingdom of Poland belongs, although it also contains rules relating to other confessions. In the new law of the Kingdom, the form of marriage, just like in the Empire, is recognized as ecclesiastical, while the civil act of marriage is drawn up after the wedding. The law determines the essential conditions for marriage and obstacles to marriage that subject it to destruction; the grounds for these obstacles were taken by citizens. law from canon law, and it is indicated in what cases (by kinship and property in the lateral lines of the second and subsequent degrees, and for reasons of public morality, publicae honestatis) dispensations by the church authorities are allowed, so that, however, the civil government is notified of the dispensation in each case. For violation of the law on obstacles to marriage, the parties, as well as the parents or guardians who allowed the marriage, are subject to a fine of up to 270 rubles. Decrees on the termination of marriage and separation from the table and bed are also borrowed from the canonical law of the Western Church; but in addition, deadlines were defined (reduced in 1856 to one 10-month period), before which it is not allowed to enter into a new marriage after the termination of the previous one. The department of divorce cases is provided to the church court, i.e. spiritual judges on delegation from the bishop - the archbishop, and in the third instance of the Roman Catholic Ecclesiastical College (since 1867), from where the matter can reach the decision of the pope. The right to initiate a claim in these cases is granted in certain cases to the prosecutorial authority. The rules of record keeping in these cases are left in the main principles canonically, with the participation of a specially appointed official as a defender of the marriage union; but the civil consequences of marriage are determined, in case of dispute, by a civil court. Separation from the table and bed for an indefinite period of time entails all the consequences of divorce; and if it is subsequently annulled, then the marriage is considered completed again from the date of the annulment. Separation for a certain period of time does not destroy the civil consequences of marriage. Spouses are obliged to separate themselves from cohabitation when they are convinced that their marriage was completed in spite of the obstacles that make it possible to initiate official prosecution of the marriage; but after the death of one of the spouses, the marriage can no longer be challenged, and a case on such a dispute that has been started, but has not yet been resolved by any authority, is terminated in the event of the death of one of the spouses. During the proceedings, the wife can leave her husband's house and demand maintenance from him, but must have a certain residence. Once the case begins, the spouses can enter into a property agreement in the event of a decision on separation. The promise to enter into marriage is not enforceable, but its violation makes it obligatory to answer for losses if the refusal to marry was not due to one of the valid reasons specified in the law. Property relations between spouses are determined in the Kingdom of Poland. Code of 1825. Their main basis is the marriage contract, which, if made, must be completed before marriage and mentioned in the civil act of marriage; modification of this agreement is not permitted subsequently. When there is no contract, the law reserves for the wife the right to dispose of her property, but gives the husband the right to use everything that the wife brought and that she acquires during the marriage (except for what she acquires through personal labor), but the alienation of this property is impossible for the husband without the consent of the wife. The husband's use is made without security and without accountability, but in case of mismanagement or embezzlement, the wife can ask the court to take away the rights from the husband. The authority, or assistance, of the husband is necessary for the wife in legal actions, in the alienation of property or in assuming obligations. With the recognition of a marriage as invalid, its civil consequences regarding property remain in the force of the spouses or are destroyed and limited, depending on whether both parties, or one of them, entered into the marriage and lived in it in good faith or in bad faith. Inheritance rights between spouses are determined by a prenuptial agreement; otherwise, the law provides the surviving spouse, for lifelong use, with a part equal to the children's parts; and if there are no children, with other heirs up to the fourth degree, the fourth part of the estate, and without such heirs, half. This share is legal, and cannot be reduced by more than half by the other spouse, in his deeds during his lifetime or in the event of death. Regulations on the legality of birth and evidence, on children born out of wedlock, on the recognition or legitimation of children, on adoption and guardianship are determined by the same Code of 1825, but essentially agree with the rules of French citizenship. code. The order of inheritance by law and by will is determined according to the rules of the French code. Reprinted from: K. Pobedonostsev. Second part. Family rights, inheritance Synodal printing house, 1896. A curious remnant of previous prohibitions remained recently in the civil code of Lübeck the special right of a widow to make a will about her property if her late husband authorized her to do so with his will. An exception to this rule was allowed in Rome for military wills. On the legal meaning of the terms dies cedens, d. veniens, and in general about the acquisition of waivers, see Art. Zur Lehre vom Frwerbe der Yermächtnisse, in Arch. Civ. Pr. 1864. This rite has existed in England since ancient times, and therefore the archives of church courts represent a huge collection of testamentary acts spanning several centuries. The development of these archives has recently made it possible to publish collections of wills, representing many precious materials for the history of public and private life over several centuries. The main repository is the central London archive, where original testamentary acts or copies from them are collected, starting from 1380 to the current time; Anyone can, for a small fee, find here in a few minutes a will of a known date. Anyone can enter their will here for safekeeping, but in no case do such acts leave the archives and are not given back until the death of the testator, so whoever wants to cancel a will that has been brought in for safekeeping must draw up a new will to cancel it. See the Government Gazette (September 1870) for information about the work of the Commission for the Review of Laws on Wills, under the former II Department. Own E.V. Chancellor Now, after the establishment of the Committee for the preparation of the draft civil code, the development of issues regarding wills lies with the responsibility of this Committee. Our law generally removes from the will any concept of a contractual agreement. Some deviation from this is visible in Art. 604. Est. Foreign Sp., where an agreement is assumed between the testator himself and the person in whose favor the assignment is made. In the case of Grechishnikov, the Senate (Collected Sen. decision vol. I, No. 599), reasoning about Davydova’s will, in which all movable property was provided to Grechishnikov to deal with it according to her verbally expressed desire and as she verbally bequeathed to him, found that this will does not contain anything illegal, since acquired property can be bequeathed unlimitedly, and from It was up to Davydova to place it at the complete and unlimited disposal of Grechishnikov, and as such her will is expressed in writing, then adding to this the words: “as I verbally bequeathed to you” cannot serve as a basis to classify the will as an oral memory. There are cases in which the handwriting of a will is mandatory (Law. Gr. Art. 1070). In one decision of the Senate (General Meeting of 1868, the Exarsvo case), it was interpreted that if the scribe who should have signed the will died and could not appear, then the will, of course, was not accepted for appearance. The wording of Article 1048, where this rule is placed, is unclear, because it does not express with precision exactly in whose signature the title of the testator should be indicated in detail - whether in the signature of the testator, scribe or witnesses, or in all of these signatures. It is difficult to grasp the special purpose of the law, for Art. 1048 requires the handwritten signature of the testator under the deed, only rewritten by someone else’s hand. In any case, the law requires that in this case not only the name and title (Article 1046), but also the title of the testator be indicated. It is unlikely, however, that failure to comply with this vague formality should have the consequence of destroying the entire will. Judicial practice looks at this omission leniently (decisions of the Moscow General Collection. Sen. for the village of Sinyavsky, 1852 for the village of Butkova, 1857 for the village of Berezutsky 1857). Examples of approval of such wills: many. State Sov. 1854 in the Saladina case. J. M. Yu. 1866, vol. II, p. 118. Examples of destruction: many. State Sov. Oct 21 1846 in the village of Lepeskin-Lobesky; decisions Moscow. General Collection along the village of Gruzovaya, along the village of Gaidukova. Requesting witnesses under oath at a trial does not violate Article 1050, as the Cass decision held. 12 Dec. 1873, No. 1864. Should serf wills revealed during life be submitted for appearance after the death of the testator, and if so, where exactly? Doubts and contradictory decisions about this continued in practice, until this subject was finally clarified by the Highest. approved opinion of the State Sov. July 18, 1860 (P.S.Z. No. 35957). This legislation sets out the considerations that the State Court presented. Advice to recognizing the need for a second appearance: “it serves as evidence that the will of the testator, expressed in the will certified during his lifetime, remained unchanged, that the will was not revoked by him and that it must be executed.” Upon receipt in court of a home will submitted for appearance, it is necessary, as a precaution, to immediately make an exact copy of it, with a detailed description of all erasures and amendments that might appear in it. This is necessary to prevent any subsequent misunderstandings about the identity and inviolability of the original text. There have been cases of distortions and erasures in the text of a will after the death of the testator, and it is important to have in these cases a certificate of the original state of the text at the moment when it was initially presented to the court. In the new charter of 1858 (§ 2), this rule is expressed in the following words: “the consul certifies the legality of all acts committed by Russian subjects in his district.” Further (§ 16) it is said: “the consul approves with his seal and the seal of the Consulate documents that will be executed in his district, or presented to him, and which should receive legal force in Russia, such as: certificates, letters of trust, wills, etc.” The revocability of wills did not suddenly become a common consciousness among us. This can be seen from the decree of October 8. 1814 (P.S.Z. No. 25704) in the case of Rtishcheva: her right to cancel her will was rejected by the decision of the 7th Department of the Senate. She herself, in her complaint against this decision, based her right on disrespect for the heirs. But the General Assembly of the Senate confirmed this right as an essential right of every testator. On wills of minors, see Art. Mullova in Zh. M. Yu. 1862, No. 9; Art. Kunitsyn there, 1863, No. 3. This opinion is not at all contradicted by the well-known legal formula: quod initio vitiosum est, tractu temporis convalescere non potest, because a testamentary disposition in favor of an incapable person cannot be considered inherently incorrect, since at the moment of its preparation the will does not yet have any effect and does not entail any civil consequences. Of course, however, if the law has positively decreed that the testator, when drawing up the act, must necessarily have in mind a legally capable person, then the above formula comes into full force. Few doubt this, arguing that the testator must choose either one or the other, and based on the wording used in Article 1011. expression: “either – or”. This expression, however, is used inaccurately: it is not in the opinion of the State. Sov. 1842 (No. 15528), from which the article is extracted; and the above misunderstanding, it seems, is no longer renewed in judicial practice, according to the recognition of the legality of wills, by which the estate is assigned to one for lifelong ownership, and to another as ownership. Rudenko refused to use his estate to his wife so that in the event of her death or remarriage, the estate would become the property of the church. The Senate recognized this order as legal (Cass. decision 1873, No. 1074). In Roman law, regarding impossible conditions, there were two opinions, each of which was bequeathed to one of two well-known schools. The Proculaeans argued that in a will, as in a contract, the assignment falls along with the impossible condition. The Sabinians held a contrary opinion, which was finally accepted by Justinian. Of the latest legislation, the Prussian holds a pro-Culean opinion; French and Austrian agree with the Sabines and Justinian. In the will of gr. Buxhoeveden Senate, and according to it the State Court. The Council (1813) declared illegal and invalid the condition that the youngest son of the testator should not be allowed to manage the estate if he is mature until he marries and has no children. This last restriction will be illegal only if it is established in favor of another person named in the will, to whom the testator wishes to preserve the estate for transfer upon the death of the first chosen heir: here the purpose of the restriction is directly contrary to the note to Art. 1011. A testamentary disposition, which in itself is inconsistent with the law, can gain force and effect if it is recognized or remains uncontested by the person who has the right to oppose or refute it. This is the basis in the legal system for a special doctrine on the recognition of testamentary dispositions (see Dedekind. Die Anerkennung ungiltiger letzwilliger, Anordnungen. Braunschweig 1872; Schmidt. Anerkennungletzwilliger Verordnungen in Arch. Civ. Pr. 1873). It is believed that someone who recognizes an illegal will does not have the right to later reject it; but those orders that the law declares to be unconditionally null and void (such as, for example, the establishment of a fideicommissa under the French law Code 896) cannot gain force due to recognition. For us, similar questions arise in practice during the appearance of a will when it seems necessary to verify the legality of the testator’s orders. See § 58 above and in Volume I of the course. For criticism of the commonly accepted bases for increment, see Fitting's article: Zur Lehre vom Anwachsungsrechte in Arch. Civ. Pr. 1874 Fitting, for his part, derives the following rule of accretion: whenever a person called to inherit does not actually turn out to be an heir, the right of inheritance is understood in such a way as if this person had never existed at all. In Collection. Sep. decide (Vol. II, No. 717) such a case occurs. Chainikov put the entire estate at the disposal of his mother so that she, having converted everything into cash capital, would contribute 1 thousand rubles. in favor of the churches, paid the named assignments to third parties, used the rest of the money for her maintenance and, if after her death there was still any left of this capital, she would have turned it into the benefit of the churches and the poor. According to the meaning of the will, the testator's mother cannot be recognized as an heir, but only as an executor of the will, with the right to maintenance (alimenta) from the bequeathed estate. Some time after the death of the testator, Chainikova transferred the bequeathed estate to a third party, Rukavishnikov, by deed of gift, under the condition that all obligations on that estate were fulfilled by virtue of the will. The Senate left this deed of gift in force, assigning only Rukavishnikov a deadline for executing the orders of the will. However, one cannot agree with this reasoning: Chainikova herself did not have ownership rights to the estate, traces, and could not transfer it; could not transfer the right to maintenance from the estate personally granted to her; could not convey the implementation of the will of the testator, based on personal trust in her. The Senate hardly thoroughly reasoned in one case (Collected Sen. Resolution II, No. 539) that “there is no prohibition in the laws from transferring acquired property to the disposal of executors, freeing them from any responsibility to the heirs in the use of bequeathed money, things or any other acquired property.” For the case of the removal of an executor for dishonest disposal, see decision. in the village of Khitrovo. Legal Vestn. 1869, No. 10. Although a will enters into executive force only from the time it is certified, the inheritance under a will is considered to have opened from the time of the death of the testator (cf. Cass. decisions of 1869, No. 1032, 1873, No. 1554). This is constantly recognized by court decisions. For example, see Sat. Sep. decide Vol. I, 399. Vol. II, No. 312, decide. in the case of Talyzin Zh. M. Yu. 1863, No. 5. Cass. decide 1868, No. 610, 777. 1874, No. 190. 1880, No. 34. The law in many articles refers to succession under a will as inheritance. See, for example, Art. 1063, 1300, 1302 Zak. Citizen