Law of inheritance

“ This verse of the Aqdas introduces a lengthy passage in which Bahá’u’lláh elaborates the Bahá’í law of inheritance. In reading this passage one should bear in mind that the law is formulated with the presumption that the deceased is a man; its provisions apply, mutatis mutandis, when the deceased is a woman.
The system of inheritance which provides for distribution of the deceased’s estate among seven categories of heirs (children, spouse, father, mother, brothers, sisters, and teachers) is based on the provisions set out by the Báb in the Bayán. ”

“ Heirs apparent are such, whose right of inheritance is indefeasible, provided they outlive the ancestor; as the eldest son or his issue, who must by the course of the common law be heirs to the father whenever he happens to die. Heirs presumptive are such, who, if the ancestor should die immediately, would in the present circumstances of things be his heirs; but whose right of inheritance may be defeated by the contingency of some nearer heir being born: as a brother, or nephew, whose presumptive succession may be destroyed by the birth of a child ”

“ It is certain that, in the old Roman Law of Inheritance, the notion of a will or testament is inextricably mixed up, I might almost say confounded, with the theory of a man's posthumous existence in the person of his heir.
The conception of a universal succession, firmly as it has taken root in jurisprudence, has not occurred spontaneously to the framers of every body of laws. ”

“ These varied and often strict limitations of the right of private property are all determined by some thought, wise or foolish, of social expediency.
[Pg 369]
Limitation of right of inheritance
4. The law of inheritance varies greatly with time and place. Inheritance, in contrast with bequest, usually means succession to the property of one who has died intestate, that is, has made no will. The old idea of family unity survives in great measure in modern laws of inheritance. The nearest living relatives, no matter how distant they may be, inherit property when there is no will. ”

“ If he does not possess these relatives, then his father's or mother's sister, and thereafter relatives up to the fifth `joint', whoever are the nearest in relationship, shall succeed by the law of inheritance. While the male line subsists, and the inheritance descends from that side, a woman shall not succeed. "The first born son shall have the father's ancestral fee' the latter shall give any purchases or subsequent acquisitions of his to whomever he pleases." ”

“ The law of inheritance for people of distinction differs from that of the kings in the fact that the eldest son inherits by right of primogeniture, and succeeds to all his father’s property, wives and slaves. He generally allows his mother a separate establishment and maintenance and finds employment and maintenance for his father’s other wives in the family residence. ”

“ At the Revolution of 1789-93, it will be recollected that the laws of primogeniture were overthrown, and it was ordained that in future every man's property should be divided equally among his children at his death: there can be no doubt that considerations of justice and humanity were at the foundation of this new law of inheritance. ”

“ Bahá’u’lláh clarifies various aspects of this part of the law of inheritance. He specifies that if there be more than one residence, the principal and most important one passes to the male offspring. The remaining residences will, together with the other possessions of the deceased, have to be divided among the heirs (Q and A 34) , and He indicates that in the absence of male offspring, two thirds of the principal residence and the personal clothing of the deceased father will revert to the female issue and one third to the House of Justice (Q and A 72) . ”

“ If the estate is derived, to the intestate, by descent, gift or devise; but not derived from a parent, or other kindred; he is made the stock of inheritance, and his next of kin is made his heir at law. But if the estate is derived to him, from a parent or other kindred by descent or devise, then the person from whom it came or descended is made the stock of inheritance; and the next of kin, who is of the blood of that person, is made the heir at law. ”

“ Consequently, if a man die leaving two children, one emancipated, and the other in his power at the time of his decease, the latter is sole heir by the civil law, as being the only family heir; but through the former's being admitted to part of the inheritance by the indulgence of the praetor, the family heir becomes heir to part of the inheritance only. ”

“ The heir has the advantage of sustaining his ancestor's and the right is acquired.
LECTURE X. — SUCCESSIONS INTER VIVOS
I now reach the most difficult and obscure part of the subject. It remains to be discovered whether the fiction of identity was extended to others besides the heir and executor. And if we find, as we do, that it went but little farther in express terms, the question will still arise whether the mode of thought and the conceptions made possible by the doctrine of inheritance have not silently modified the law as to dealings between the living. ”

“ It is very evident, however, that the court could not have intended to apply this rule to the construction of the statute of wills. For they say, in terms, that the question is, whether a person having a right of entry in lands has an estate of inheritance devisable, according to the provisions of the statute. But under the common law rule referred to, a person having only a right of entry, would not be accounted an ancestor from whom the inheritance would be derived. ”

“ The rule in such cases is, that where the marriage is valid by the lex loci, it will generally be held (not universally) valid everywhere for the purposes of inheritance. If invalid there, it will generally (not universally) be held invalid everywhere. But in either case, the exceptions grow out of law. They must be shown to exist as such, before the right of heirship can be excluded. ”

“ When the phenomena of primitive societies emerge into light, it seems impossible to. dispute a proposition which the jurists of the 17th century considered doubtful, that Intestate Inheritance is a more ancient institution than Testamentary Succession. As soon as this is settled, a question of much interest suggests itself, how and under what conditions were the directions of a will first allowed to regulate the devolution of authority over the household, and consequently the posthumous distribution of property. ”

“ The remaining half the father shall reserve for himself during his lifetime, and, after his death, it shall descend to his children. This same regulation shall apply also to grandchildren. When the father has alienated any of the aforesaid property, or has retained it beyond the time prescribed by law, everything belonging to his children by right of inheritance from their mother, shall be given to them, at once, by way of complete restitution. ”

“ Legacies cannot be made to a larger amount than one-third of the testator's estate without the consent of the heirs.
3. A legacy cannot be left to one of the heirs without the consent of the rest.
4. There is this difference between the property which is the subject of inheritance and that which is the subject of legacy. The former becomes the property of the heir by the mere operation of law; the other does not become the property of the legatee until his consent shall have been obtained either expressly or impliedly. ”

“ The rule of law, however, is established and certain, that express words of limitation or words tantamount are necessary to pass an estate of inheritance.' And he hence concluded that words tending to disinherit the heir at law, unless the estate is given to some one else were not sufficient to prevent the heir from taking. ”

“ Sometimes they do not inherit, but transmit a right of inheritance to their male issue. Sometimes they succeed to one kind of property, for the most part movable property, which they probably look a great share in producing by their household labour; for example, in the real Salic law (not in the imaginary code) there is a set of rules of succession which, in my opinion, clearly admit women and their descendants to a share in the inheritance of movable property, but confine land exclusively to males and the descendants of males. ”

“ A succession is acquired by the legal heir, who is called by law to the inheritance, immediately after the death of the deceased person to whom he succeeds. This rule applies also to testamentary heirs, to instituted heirs, and universal legatees, but not to particular legatees. ”

“ In order, however, to bestow some privilege on those who had in their favour the provisions of the ancient law as well as natural right, they determined that grandchildren, greatgrandchildren, and others who traced their descent through a female should have their portion of the inheritance diminished by receiving less by onethird than their mother or grandmother would have taken, or than their father or grandfather, paternal or maternal, when the deceased, whose inheritance was in question, was a woman ”

“ Inheritance is in some sort a legal and fictitious continuation of the personality of the dead man, for the representative is in some sort identified by the law with him whom he represents. The rights which the dead man can no longer own or exercise in propria persona, and the obligations which he can no longer in propria persona fulfil, he owns, exercises, and fulfils in the person of a living substitute. ”

“ Moses brought before God, and received instructions in reply to give the daughters of Zelophehad an inheritance among the brethren of their father, as they had spoken right. Further instructions were added afterwards in Num 36:1-13 in relation to the marriage of heiresses.
verses 8-11verses 8-11
On this occasion God issued a general law of inheritance, which was to apply to all cases as “a statute of judgment” (or right) , i.e., a statute determining right. If any one died without leaving a son, his landed property was to pass to his daughter (or daughters) ”

“ For the rest—what I said this morning, with regard to the absent heirs, is now applicable to you—the law is open; you may dispute the authenticity of this codicil. Meanwhile, everything will remain suspended—since the term for the adjustment of the inheritance is prolonged for three months and a half. ”

“ Chapter II. OF INHERITANCE ACCORDING TO THE IMAMIYA, OR SHIA DOCTRINE 1. According to the tenets of this Sect, the right of inheritance proceeds from three different sources.
2. First, it accrues by virtue of consanguinity. Secondly, by virtue of marriage. Thirdly, by virtue of Willa. [7]
3. There are three degrees of heirs who succeed by virtue of consanguinity, and so long as there is any one of the first degree, even though a female, none of the second degree can inherit; and so long as there is any one of the second degree, none of the third can inherit. ”

“ Another explanation is that estates were granted to be descendible in the same way as an ancient inheritance, which having passed from father to son ex necessitate went to collaterals on failure of issue of the person last seized. 6. The sixth rule is thus expressed by Joshua Williams in his treatise on The Law of Real Property:—
“The father and all the male paternal ancestors of the purchaser and their descendants shall be admitted before any of the female paternal ancestors or their heirs ”

“ And if neither father nor mother in whom these rights are vested, should leave any children, the entire inheritance shall be divided among the other descendants; but they shall not have the power to give to each grandchild more than the third part of the aforesaid property. ”

“ Again, by the laws and customs of inheritance, the estate of the father descends to the first-born. The younger sons must be adopted into another family, or, failing this, must make their own fortunes independently. ”

“ If a man should die intestate, his children shall stand first in the order of succession; if there are no children, the inheritance shall descend to the grandchildren; if there are no grandchildren, then the great-grandchildren shall have a right to it; and if the decedent should leave neither children nor grandchildren, nor father nor mother, then his grandfather or grandmother, should either be living, may claim the inheritance of his estate. ”

“ This requires that all children, whether family heirs or emancipated, shall be specially disinherited, and declares that their pretermission shall have the effect of avoiding the will of their parent, and depriving the instituted heirs of the inheritance, no less than the pretermission of children who are family heirs or who have been emancipated, whether already born, or born after, though conceived before the making of the will. ”

“ Great-grandchildren may inherit as grandchildren, unless a decidedly contrary intention appear in the will; and in several cases it has been decided, that the term relations, or family, in a will, means next of kin. A pecuniary legacy to the heir of a testator is construed to imply the heir-at-law, and not the next of kin, unless the sense of the passage in the will was influenced by the context to mean something else. ”

“ Turning now to a Dayabhaga family, we find that the property is vested, not in the family as a whole, but in certain individual members of it—that is to say, in those male members of the family who have no ancestor alive. And inasmuch as the undivided share of each member is his own, it follows that at his death inheritance will operate and it goes to his heirs. ”

“ For instance, if a son be disinherited and a stranger instituted heir, and the son die after the decease of his father, but before it is certain that the heir instituted in the will either will not or cannot take the inheritance, a grandson will take as family heir to his grandfather, because he is the only descendant in existence when first it is certain that the ancestor died intestate ”