In cases of a will that sets specific shares for the division of the inheritance, and in the event that one of the testamentary heirs dies before the opening of the succession – so-called predecease (pré-morte) –, the value of the remaining share must be redistributed to every legitimate heir. This follows the legal order of preference established in the Civil Code. And there being no legal impediment for a testamentary heir to also participate as a legitimate heir in the same hereditary succession.
With this understanding, the Third Panel of the Superior Court of Justice (STJ) denied the appeal of the testatrix’s brother, who was attempting to exclude his nephews from the partition of the remaining share, alleging that, because they were testamentary heirs, they could not appear again in the succession in the capacity of legitimate heirs.
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In the case under review, the testatrix died unmarried and without necessary heirs (parents or children), which is why she disposed of her entire estate by means of a public will. In the will she also, equally, named ten nephews and nieces.
According to the reporting justice, Justice Villas Bôas Cueva, the testatrix excluded the collateral heir, her brother, the appellant before the STJ, from the succession. The question to be analyzed is what happens to the amount allotted to one of the nephews who died before the testatrix’s death.
Remaining share
The lower courts held that the partition of the remaining share of the bequeathed assets should be carried out equally among all the heirs, again including the nephews who are children of the deceased siblings, who, in addition to being testamentary heirs, enter the succession in the capacity of legitimate heirs.
The justice recalled that the testatrix’s nephews, in addition to being testamentary heirs, are also heirs per stirpes, since they will receive the share of the inheritance that belonged to their deceased mother or father, legitimate heirs, by representation.
“In the case of specified portions, there is no right of accretion. If the testamentary heir endowed with a fixed share dies before the opening of the succession, with no substitute provided for, that portion must return to the estate and be the object of partition with all the legitimate heirs,” said the reporting justice.
Legitimate heir
It is untenable, according to the reporting justice, to accept the appellant’s thesis that he would be the sole legitimate heir in the collateral line, being entitled to the entire amount left by the deceased testamentary heir.
According to Villas Bôas Cueva, the conclusion of the court of origin was correct in the sense that the appellant and the other representatives of the testatrix’s siblings, being the legitimate heirs in the collateral line, are entitled to one tenth of the assets, as a consequence of the right of accretion not being effected.
“The right of accretion provided for in Article 1,941 of the Civil Code of 2002 represents a form of indirect successoral vocation and presupposes (i) the naming of the heirs in the same testamentary clause; (ii) that the estate comprise the same assets or the same portion of assets; and (iii) the absence of predetermined hereditary shares,” he explained.
The justice endorsed the understanding of the Public Prosecutor’s Office, which emphasized the absence of the right of accretion among the other heirs in cases in which the testator sets the share of each successor.
In these cases, according to the opinion of the Public Prosecutor’s Office and the conclusion of the panel, when there is a determination of each heir’s share, and these do not correspond to the total of the inheritance, whatever remains shall belong to the legitimate heirs, in accordance with the order set out in Article 1,829 of the Civil Code.
Source: STJ
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