Legacy in favor of widow: doctrine on the matter

The TS indicates that the legacy is subordinated to the payment of the legitimate ones, and in its case of the debts and, for this reason, the delivery of the legacy must be preceded by the liquidation and partition of inheritance, which is the only way to know if that is within the quota that the testator can have so as not to harm the legitimate of the forced heirs.

The litigation is focused on determining whether the delivery of the legacy property is conditioned or not on the prior formation of the inventory of the inheritance, and the prior liquidation of the estate of the deceased and subsequent liquidation and partition of the inheritance.

The Chamber exposes the doctrine on the legacy, noting that the legatee has the right to the thing bequeathed from the death of the testator, but lacks possession for which delivery is required. Therefore, the acquisition by the legatee of the thing bequeathed is not effective immediately, but rather mediate, granting the legatee a personal action “ex testament” to request the delivery of the legacy against the heir, and even a claim against any third party that has the thing bequeathed in their power.

It is also forbidden to occupy the thing bequeathed by his own authority, a possession whose delivery he must request from the heir or executor authorized to give it. Therefore, there is a subordination of the right of the legatees, both those of a specific and determined thing and those of an aliquot part of the inheritance, to the previous payment of the debts of the deceased and of the legitimate portion that corresponds to each of the forced heirs . And as a guarantee measure of the preferential right to collection from creditors and the principle of intangibility of the legitimate ones, it is necessary that prior to the payment or delivery of the legacies, the corresponding inventory and liquidation operations (of debts) are carried out and, where appropriate , inheritance partition. As the appellant acknowledges, this interpretation is the majority in the Hearings,and it is also in scientific doctrine, in the official one of the General Directorate of Registries and Notaries, and it has also been assumed by this court.

The transfer of ownership of the specific and determined thing of the testator that is the object of the legacy is subordinate to the fact that the legacy fits into the part of assets that the testator can freely dispose of. This was stated in the old judgment of this court of November 6, 1934, when it pointed out that despite the fact that the legacy of a determined thing belonging to the testator “has as a special characteristic that of transmitting the property of the thing directly from the deceased to the legatee, According to  art. 882 of the same CC (EDL 1889/1) , it is no less that it is subordinate to the circumstance that the legacy fits in the part of assets that the testator can freely dispose of ”.

The legacy is subordinate to the payment of the legitimate ones (and in its case of the debts) and, for this reason, the delivery of the legacy must be preceded by the liquidation and partition of inheritance, which is the only way to know if it is found within the quota that the testator may have in order not to harm the legitimate of the forced heirs.

Therefore, by establishing the necessary titles to verify the delivery in favor of the legatee for the purposes of its registration, it only allows the unilateral request of the legatee when there are no heirs and the testator is expressly empowered by the testator to take possession of the thing bequeathed. , or when the entire inheritance had been distributed in legacies and there was no person authorized to make the delivery. In another case, the “deed of partition of inheritance or of approval and protocolization of partition operations formalized by the accountant-splitter in which the legatee is assigned the property or properties” is necessary, or “deed of delivery granted by the legatee and accountant-party or executor empowered to make the delivery or, failing that, by the heir or heirs ”.

And, although it has sometimes been affirmed that such delivery is not necessary in the case of a prelegatee, this dispensation only extends to cases in which such prelegatee is the sole heir, because, if there are other heirs, it is not possible that only one of them proceeds to deliver the legacy, since the specific legitimate right corresponds to each of the forced heirs.

In this case, also a part of the assets that make up the inheritance have a community character (including part of the bequeathed assets). For this reason, the sentencing court is right when it considers it necessary to proceed with the prior liquidation of the community property to determine the estate.

Dissolved the community property, but not liquidated, does not correspond to the spouses, or their heirs, individually an undivided quota in each and every one of the community assets, but the participation of those is predicated globally with respect to the community property inasmuch as collective separate patrimony. Only when the operations aimed at their liquidation conclude, that quota on that patrimonial mass, will be replaced by the singular and concrete entitlements that each of the former spouses or their heirs is awarded in the liquidation. Therefore, in general, to determine hereditary assets, the prior liquidation of the community property is necessary (including the credit-debt relationships between common and private property),since only after such liquidation is it possible to determine the partible flow.

In addition, with respect to the legacies of property, although  art. 1380 CC (EDL 1889/1) admits the legacy of a community property in its entirety, so there is no reason to prevent neither the legacy of a quota nor the legacy of the rights that correspond to the testator over a common property, however, the effectiveness of these legacies It will depend on what results from liquidating the joint venture. According to the majority doctrine, the legacy of the rights that correspond to the testator over a community property, is limited to the undivided half of the property if that part is awarded to the deceased in joint ownership with the other spouse or their heirs or to the value of the property. half of the property in the event that it is fully awarded to the other spouse. Existing assets that were the object of the legacies ordered by the deceased to whom these actions refer are assets that had a community character,There is an additional reason that imposes the need to carry out the prior liquidation of the community property, as rightly stated in the judgment under appeal.

In the case of the widow of the deceased, we must not forget her status as an aliquot part of the legatee, since legally, if she concurs with children or descendants, a usufruct right on the third improvement of the inheritance, and that the  art. 807.3th CC (EDL 1889/1)  includes him among the “forced heirs”.

And although it is true that the jurisprudence of this court has affirmed his status as heir in order to recognize the right to intervene in partition operations or to deny him the possibility of being a splitting accountant, nevertheless we have denied that the widowed spouse must respond for hereditary debts. In this sense, it has been observed that the very literal diction of  article 807 number 3 of the Civil Code (EDL 1889/1)  limits the scope of its assertion, since it declares that the widower or widower is a “forced heir” only “in the form and measure established by this Code ”, that is, in a limited and not absolute way.

Ultimately, even when their legal position is not absolutely identical to that of the genuine universal successor, the widower / widower is legitimate, being the law that directly attributes the legitimate one (“ex lege” successor). And in any case, there is no doubt about his right to promote the trial of division of the inheritance, especially in a case such as the present in which, apart from his legal usufructual quota, the deceased has the will of the deceased. aliquot part of the legatee, by providing in the will that “in the event that the assets that are the subject of this legacy do not cover the third free disposition of the inheritance […], in addition to the legal usufructuary quota that by law corresponds to his wife, orders that it be completed until said joint computation with metallic cash owned by the testator ».