The Civil Code of Japan/Book 5

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A succession to a house occurs:—

1. When the head of the house dies, resigns the headship or loses his nationality;
2. When the head of the house in consequence of the cancellation of a marriage or adoption quits his house;
3. When a woman who is the head of a house marries a man who enters her house, or when such a marriage is cancelled or dissolved by divorce.

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The succession to a house occurs at the domicile of the ancestor.^[2]

The right of action to recover a succession to a house is extinguished by prescription, if it is not exercised for five years from the time when the heir to the house^[3] or his legal representative had notice of the facts constituting a violation of his right as heir, or when twenty years have elapsed since the succession occurred.

Expenses relating to the estate are paid out of the estate, unless they are caused by the fault of the heir.

A person entitled to a legal portion cannot be compelled to pay such expenses out of property obtained by him from the reduction of gifts.

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For the purposes of a sucession to a house a child in the womb is treated as if already born.

This provision does not apply, if the child is born dead.

The following persons cannot be heir to a house:—

1. A person who has been sentenced to punishment for having intentionally caused or attempted to cause the death of the ancestor or of a person who had a prior right to the succession to the house;
2. A person who had knowledge of the murder of the ancestor and did not give information or institute an action for it; but this does not apply, if such person had not sufficient mental capacity to distinguish between right and wrong, or if the murderer was the husband, wife or a lineal blood relative of such person;
3. A person who by fraud or coërcion has prevented the ancestor from making, revoking or changing a will relating to the succession;
4. A person who by fraud or coërcion has caused ​the ancestor to make, revoke or change a will relating to the succession;
5. A person who has falsified, forged, destroyed or concealed a will of the ancestor relating to the succession.

Descendants of the ancestor being members of his house, become heir to the house according to the following provisions:—

1. As between persons of different degrees, the nearer has priority;
2. As between persons of the same degree, a male has priority;
3. As between males or as between females of the same degree, a legitimate descendant has priority;
4. As between a legitimate descendant, a shoshi and a natural descendant of the same degree, the legitimate descendant and shoshi, even though females, have priority over a natural descendant;
5. As between persons between whom none of the distinctions mentioned under 1–4 exists, the oldest has priority.

A person who according to the provisions of Art. 836 or by adoption has acquired the status of a legitimate child is deemed for the purposes of the succession to the house to have been born at the time when he acquired the status of a legitimate child.

The application of Art. 736 is not affected by the provisions of the preceding article.

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A descendant who has become a member of the house under the provisions of Arts. 737 and 738 becomes heir to the house according to the order prescribed in Art. 970^{[errata 1]} only in case where there is no legitimate descendant or shoshi.

The right of succession of a legal expectant heir to a house is not affected by the adoption of a person to be the husband of his sister.

If a person who would be heir to a house according to the provisions of Arts. 970 and 972 dies or loses his right of succession before the succession occurs, leaving descendants, these become heir to the house in accordance with the order specified in Arts. 970 and 972, standing in the same rank in which their ascendant would have stood.

If as to the legal expectant heir of a house one of the following causes arises, the ancestor may apply to the court to deprive him of his right of succession:—

1. If he illtreats or grossly insults the ancestor;
2. If because of sickness or of his bodily or mental condition he would be unable to conduct the administration of the house;
3. If he has been sentenced to punishment for any offense involving dishonour to the reputation of the house;
4. If he is adjudged quasi-incompetent as a spendthrift, and there is no probability of his ​reformation.

If any other just cause exists, the ancestor may with the consent of the family council apply to the court to have the legal expectant heir to the house deprived of his right of succession.

If the ancestor has by his will expressed his intention that the expectant heir of the house shall be deprived of his right of succession, the executor of the will must without delay after the will takes effect apply to the court to have the expectant heir of the house deprived of his right. In such case the deprivation relates back to the time of the death of the ancestor.

If the cause for which an expectant heir to a house has been deprived of his right of succession ceases to exist, the ancestor or the expectant heir himself may apply to the court to have the decree of deprivation cancelled. In the case of Art. 975, 1, No. 1 the ancestor may at any time apply for the cancellation of the deprivation.

The provisions of the foregoing two paragraphs do not apply after the succession has occurred.

The provisions of the preceding article apply correspondingly to the cancellation of the deprivation.

When the succession occurs after an application has been made for the deprivation of the right of succession to the house or for the cancellation of such deprivation, but before the decree made on such application has ​become finally binding,^[5] the court may on the application of a relative, a person interested or the public procurator make any necessary orders for the exercise of the rights of the head of the house and for the administration of the estate. The same applies, if there is a will in which the deprivation of the expectant heir to the house is directed.

In case the court appoints an administrator, the provisions of Arts. 27–29 apply correspondingly.

If there is no legal expectant heir to the house, the ancestor may designate an heir to the house. Such designation becomes invalid, if some other person becomes legal expectant heir to the house.

The designation of an heir to the house may be revoked.

These provisions apply only when the succession to the house takes place because of death or of the resignation of the headship.

The designation or the revocation of the designation of an heir to the house takes effect upon its notification to the registrar.

If the ancestor has expressed in his will his intention to designate or to revoke the designation of a person as heir to the house, the executor of the will must without delay after the will takes effect make notification thereof to the registrar. In such case the designation or the revocation of the ​designation relates back to the time of the death of the ancestor.

When there is neither a legal nor a designated heir to the house, the father of the ancestor, if in his house, or, if there is no such father or he is unable to express his intention, the mother, or if there are no parents or both are unable to express their intention, the family council, is to choose an heir to the house from among the members of the house according to the following order:—

1. The wife, if she is a daughter of the house;
2. The brothers;
3. The sisters;
4. The wife not falling under No 1;
5. The descendants of brothers or sisters.

The persons who are to choose the heir to the house may deviate from the order specified in the preceding article or forbear from making any choice at all only if some just cause exists and with the permission of the court.

If there is no heir to the house according to the provisions of Art. 982, that person among the ascendants belonging to the house who is nearest in degree, becomes heir to the house. Among persons of the same degree a male has preference.

If there is ne heir to the house according to the provisions of the preceding acticle, the family council must choose an heir to the house from among the ​relatives of the ancestor, or from among the heads of branch houses or members of the principal house or branch houses.

If there is no person among those above mentioned who can become heir to the house, the family council must choose the heir from among other persons.

The family council may choose another person without regard to the provisions of the foregoing two paragraphs only if some just cause exists and with the permission of the court.

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The heir to a house succeeds, from the time when succession occurs, to the rights and duties of the former head of the house, except so far as these are merely personal.

The ownership of the house documents, of the articles used for the religious rites of the house and of the house burial place are rights specially pertaining to the succession to a house.

A head of a house who resigns, or a woman marrying a man who enters her house, may reserve his or her property by a document having an authenticated date. But this cannot be done so as to contravene the ​provisions relating to the legal portion of the heir to the house.

If a succession to a house takes place because of a resignation of the headship or of the marriage of a woman who is the head of the house, the creditors of the former head of the house may demand performance from such former head.

If a succession to a house takes place because such marriage as aforementioned is cancelled or dissolved by divorce, the performance of obligations which have arisen while the husband was head of the house may still be demanded from him.

A person who becomes heir to a house because the head of the house loses his nationality succeeds only to the headship and to the rights specially pertaining to the succession to the house. But by these provisions the succession to the legal portion and to such property as the former head of the house has specially designated as property pertaining to the succession to the house is not affected.

If the person who loses his nationality has rights which only a Japanese subject can hold, these fall to the heir of the house, unless the former head assigns them to a Japanese subject within one year.

If a succession to a house takes place because the head of the house loses his nationality, the creditors of the former head may demand performance from the heir ​of the house only up to the amount of the property received by him.

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Succession to property occurs on the death of a member of a house.

The provisions of Arts. 965–968 apply correspondingly to a succession to property.

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Descendants of the ancestor become heirs to his property according to the following provisions:— ​

1. As between descendants in different degrees, the nearest has priority;
2. Descendants in the same degree become heirs to the property in the same rank.

If any person who would be heir under the provisions of the preceding article has died or lost his right of succession before succession occurs, his descendants, if any, become heirs in his place, in accordance with the provisions of the preceding article, standing in the same rank.

If there is no person who would become heir in accordance with the provisions of the preceding two articles, the order of the persons who are to become heirs to property is determined as follows:—

1. The husband or wife;
2. The ascendants;
3. The head of the house.

In the case mentioned under No. 2 the provisions of Art. 994 apply correspondingly.

The following persons cannot become heirs to property:—

1. A person who has been sentenced to punishment for having intentionally caused or attempted to cause the death of the ancestor or of a person who has a prior or equal right to the succession to the property;
2. The persons mentioned in Art. 969, Nos. 2–5.

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If an expectant heir to property who is entitled to a legal portion illtreats or grossly insults the ancestor, the latter may apply to the court to deprive him of his right of succession.

The ancestor may at any time apply to the court to cancel the deprivation of the right of succession to the property.

The provisions of Arts. 976 and 978 apply correspondingly to the deprivation of the right of succession to property.

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The heir to property succeeds from the time when the succession occurs to all the rights and duties pertaining to the property of the ancestor except so far as they are merely personal.

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If there are several heirs, the property falls to them jointly.

Each co-heir succeeds to the rights and duties of the ancestor according to the proportion of his share in the succession.

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If there are several heirs of the same rank, they succeed to equal portions; provided, however, that in case of descendants the portion of a “shoshi” or a natural child is only one half of that of a legitimate child.

The portion of a descendant who becomes heir according to the provisions of Art. 995 is what would have belonged to his ascendant. If there are several descendants, their shares in the portion which would have belonged to their respective ascendant are determined according to the provisions of the preceding article.

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The ancestor may determine by will, without regard to the provisions of the preceding two articles, the respective portions of the co-heirs, or may entrust such determination to a third person; but the ancestor or the third person must not contravene the provisions relating to legal portions.

If the ancestor has determined the portions of one or several only of the co-heirs, or has entrusted the doing so to a third person, the portions of the other co-heirs are determined according to the provisions of the preceding two articles.

If one of the co-heirs has received from the ancestor a legacy, or if he has received a gift for the purpose of a marriage or adoption, of the establishment of a branch house or the re-establishment of an abandoned or extinct house or as a fund for his livelihood, the property which the ancestor had at the time when the succession occurred is deemed to be the property to be succeeded to, and the portion of such person consists in the amount remaining after subtracting the amount of the legacy or gift from what would have been his portion computed according to the provisions of the preceding three articles.

If the amount of the legacy or gift is equal to or exceeds the amount of the portion, the legatee or donee cannot receive any portion.

If the ancestor has expressed an intention different from the provisions of the foregoing two paragraphs, such intention is valid so far as it does not contravene the provisions relating to legal portions.

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Even though property forming the subject of a gift as mentioned in the preceding article has been destroyed or its value lessened by the act of the donee, it is treated as if it existed in its original condition at the time when the succession occurs, and the amount of the gift determined accordingly.

If one of the co-heirs assigns his portion to a third person before partition, the other co-heirs may acquire such portion on repaying the amount of it and expenses.

This right must be exercised within one month.

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The ancestor may by will determine the manner of partition or entrust such determination to a third person.

The ancestor may by will forbid the partition for a period of not more than five years from the time when the succession occurs.

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The partition of the property succeeded to relates back to the time when the succession occurred.

Each co-heir warrants in proportion to his portion as if he was a seller to the other co-heirs in regard to circumstances existing before the succession occurred.

Each co-heir is in regard to an obligation which another co-heir receives by the partition responsible in proportion to his portion to such other co-heir for the solvency of the debtor at the time of partition.

As to an obligation not yet due or subject to a condition precedent, each co-heir is responsible for the solvency of the debtor at the time when performance is to be made.

If any co-heir who is responsible under the provisions of the preceding two articles has not the means to make reimbursement, the amount which he is unable to reimburse is apportioned among the person entitled to reimbursement and the other co-heirs in proportion to their portions. If, however, the person entitled to reimbursement is in fault, he cannot claim such apportionment as against the other co-heirs.

The provisions of the preecding three articles do not ​apply, if the ancestor has expressed by his will a different intention.

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An heir must within a period of three months after he has notice that succession in his favour has occurred accept it absolutely or qualifiedly or refuse it. Such period, however, may be extended by the court on the application of a person interested or of the public procurator.

The heir has a right to investigate the condition of the estate before accepting or refusing the succession.

If an heir dies without having accepted or refused the succession, the period specified in Art. 1017, 1 is computed from the time when his heir has notice that succession in his favour has occurred.

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If an heir is incapacitated, the period specified in Art. 1017, 1 is computed from the time when his legal representative had notice that succession had occurred in favour of the person incapacitated.

The legal heir to a house has no right of refusal. But this does not apply to the persons mentioned in Art. 984.

An heir must manage the estate with the same care as his own affairs; but this does not apply to the time after acceptance or refusal has been declared.

The court may at any time on the application of a person interested or of the public procurator order any measures necessary for the preservation of the estate to be taken.

If the court appoints a manager, the provisions of Arts. 27–29 apply correspondingly.

An acceptance or refusal cannot be rescinded even within the period mentioned in Art. 1017, 1.

This does not affect the right of rescission of an acceptance or refusal according to the provisions contained in Books I and IV. But such right of rescission is extinguished by prescription, if not exercised for six months from the time when ratification becomes possible. The same applies, if ten years have elapsed since the acceptance or refusal.

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If the heir accepts absolutely, he succeeds to the rights and duties of the ancestor without limitation.

In the following cases the heir is deemed to have accepted absolutely:—

1. If he disposes of the estate wholly or partly but this does not apply to acts done for the preservation of the estate or to contracts of letting for not longer than the period specified in Art. 602;
2. If he does not accept qualifiedly or refuse within the period specified in Art. 1017, 1;
3. If, although he has accepted qualifiedly or refused, he conceals property belonging to the estate or consumes it for his own benefit or intentionally omits to enter it in the inventory; but this does not apply after a person who has become heir in consequence of his refusal, has declared his acceptance.

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An heir may accept so as to be bound to perform the obligations and legacies of the ancestor only to the extent of the property obtained by the succession.

If an heir desires to accept qualifiedly, he must within the period fixed in Art. 1017, 1 make an inventory and present it to the court with a declaration that he accepts qualifiedly.

If an heir accepts qualifiedly, the rights and duties existing between him and the ancestor are deemed not to be extinguished.

A person who accepts qualifiedly must manage the estate with the same care as his own affairs. The provisions of Arts. 645, 646, 650, 1 and 2 and 1020, 2 and 3 apply correspondingly in the case of the foregoing paragraph.

An heir who accepts qualifiedly must within five days after his declaration of acceptance give public notice thereof to all creditors of the estate and ​legatees, and must notify them to present their claims within a specified time, which must not be less than two months.

The provisions of Art. 79, 2 and 3 apply in such case correspondingly.

An heir who accepts qualifiedly may, until the end of the period specified in Art. 1029, 1, refuse performance to creditors of the estate or legatees.

An heir who accepts qualifiedly must, after the expiration of the period specified in Art. 1029, 1 perform out of the estate all obligations due to those creditors who have presented their claims during such period or of whom he has knowledge, in proportion to the amounts of their respective obligations. But the rights of creditors who have rights of priority cannot be impaired thereby.

An heir who accepts qualifiedly must also perform such obligations as are not yet due, according to the provisions of the preceding article.

Conditional obligations and those whose duration is uncertain must be performed according to a valuation made by experts appointed by the court.

An heir who accepts qualifiedly must perform legacies only after performance has been made to all the creditors according to the provisions of Arts. 1031 and 1032.

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If, in order to make any performance required to be made by the preceding three articles, a sale of the estate is necessary, the heir must make such sale by public auction; but he may prevent the sale of the whole or a part of the estate by performing up to a proportional amount as fixed by a valuation made by experts appointed by the court.

A creditor of the estate or a legatee may at his own cost intervene in any proceeding had for the purpose of the sale or valuation of the estate. In such case the provisions of Art. 260, 2 apply correspondingly.

If an heir who accepts qualifiedly omits to give the public notice or notification mentioned in Art. 1029, or if within the period there specified he performs to a creditor or legatee and thereby becomes unable to perform to any other creditor or legatee, he is liable for all damage arising therefrom. The same applies, if he makes performance in contravention of the provisions of Arts. 1030–1033.

By these provisions the right of recourse of a creditor or legatee against another creditor or legatee who with knowledge of the facts has improperly received performance is not affected.

The provisions of Art. 724 apply correspondingly in the case of the preceding two paragraphs.

A creditor or legatee who has not presented his claim ​within the time specified in Art. 1029, 1, and who was not known as such to the heir who accepts qualifiedly, can exercise his right only against such property as remains; but this does not apply to those creditors who have a special security upon the property.

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A refusal of a succession must be declared to the court.

A refusal relates back to the time when the succession occurred.

If one of several heirs to property refuses the succession, his portion falls to the other heirs in proportion to their respective portions.

The party refusing must continue to manage the estate with the same care as his own affairs, until the person who becomes heir in consequence of the refusal can assume the management.

In this case the provisions of Arts. 645, 646, 650, 1 and 2, 1021, 2 and 3 apply correspondingly.

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A creditor of the estate or a legatee may within three months from the time when the succession occurs apply to the court for a separation of the estate from the property of the heir. The same applies even after the expiration of such period, so long as the estate and the property of the heir have not been mingled.

If the court upon such an application orders a separation of the property, the applicant must within five days thereafter give public notice of such separation to the creditors of the estate and the legatees, and notify them to intervene in the distribution within a specified time, which must not be less than two months.

The applicant and the persons who have intervened according to the provisions of Art. 1041, 2 are entitled to receive performance out of the estate in preference to the creditors of the heir.

If an application for separation is made, the court may order all steps necessary for the management of the estate.

If the court appoints a manager, the provisions of Arts. 27–29 apply correspondingly.

If an application for separation is made after the heir ​has accepted absolutely, the latter must henceforth manage the estate with the same care as his own affairs, unless the court appoints a manager.

In the case of the foregoing paragraph the provisions of Arts. 645–647 and 650, 1 and 2 apply correspondingly.

As to immovables the separation of the estate can be set up against third persons only if it has been registered.

The provisions of Art. 304 apply correspondingly in the case of the separation of the property.

An heir can refuse performance to creditors of the estate or legatees until the expiration of the period specified in Art. 1041, 1 and 2.

In case of an application for separation, the heir must after the expiration of the period mentioned in Art. 1041, 2 make performance from the estate to those creditors or legatees who have made such application and to those who have intervened in the distribution; but the rights of those creditors who have rights of precedence must not be impaired.

In that case the provisions of Arts. 1032 and 1036 apply correspondingly.

The applicant and those persons who have intervened in the distribution can exercise their rights against the property of the heir only so far as they have not received full performance out of the estate. In such ​case the creditors of the heir are entitled to receive performance in preference to the persons before mentioned.

An heir may prevent the application for separation or avoid its effect by making performance to the creditors of the estate and the legatees from his own property or by giving them proper security. But this does not apply, if the creditors of the heir object and prove that they would suffer damage thereby.

The creditors of the heir may demand separation so long as the heir still has the power to accept qualifiedly, or the estate and his property have not been mingled.

In such case the provisions of Arts. 304, 1027, 1029–1036, 1043–1045 and 1048 apply correspondingly, except that the public notice and the notification provided for in Art. 1029, must be made by the creditor who has applied for separation.

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If it is uncertain whether there is an heir, the estate is a juridical person.

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In the case of the preceding article the court must on the application of a person interested or of the public procurator appoint a manager of the estate.

The appointment must be published by the court without delay.

The provisions of Arts. 27–29 apply correspondingly to the manager of an estate.

Upon the demand of a creditor of the estate or of a legatee the manager must make a report to him as to the condition of the estate.

When the heir is ascertained, the juridical person is deemed not to have come into existence; but the validity of the acts done by the manager within his powers is not affected thereby.

The right of representation of the manager is extinguished, as soon as the heir has accepted the succession.

In such case the manager must without delay render an account of his management to the heir.

If within two months after the publication prescribed in Art. 1052, 2 the heir is not yet ascertained, the manager ​must without delay give public notice to all the creditors of the estate and the legatees to present their claims within a period specified, which must not be less than two months.

In such case the provisions of Arts. 79, 2 and 3 and 1030–1037 apply correspondingly, except the proviso contained in Art. 1034.

If even after the expiration of the period mentioned in Art. 1057, 1 the heir is not ascertained, the court may on the application of the manager or of the public procurator issue a public notification summoning any person who is heir to assert his right within a specified period, which shall not be less than one year.

If within the period mentioned in the preceding article no person asserts his right as heir, the estate falls to the State. In such case the provisions of Art. 1056, 2 apply correspondingly.

Creditors or legatees cannot exercise their rights against the State.

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A will can be made only in the forms prescribed by this law.

A person who has completed his fifteenth year can make a will.

The provisions of Arts. 4, 9, 12, 14 do not apply to a will.

A testator must at the time of making the will have capacity for doing so.

A testator may dispose of the whole or of a part of his property by a universal or singular title, provided that he must not contravene the provisions of law relating to legal portions.

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The provisions of Arts. 968 and 969 apply correspendingly to legatees.

A will made by a ward in favour of his guardian or of the husband or wife or a descendant of the guardian, before the guardianship account has been rendered, is void.

The foregoing provisions do not apply, if the guardian is a lineal relative, the husband or wife or a brother or sister of the ward.

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A will must be made by a holograph document, by a public document or by a secret document; unless an exceptional form is allowed.

If a will is to be made by a holograph document, the testator must write with his own hand the whole text of ​the document and the date, and must with his own hand sign his name and affix his seal.

If any erasure, addition or other alteration is made in such will, it is valid only if the testator adds a written note specifying the place and the fact of the change, signs it separately and also affixes his seal at the place of change.

If a will is to be made by a public document, the following forms must be observed:—

1. There must be at least two witnesses present at the same time;
2. The testator must orally declare the contents of the will to a notary;
3. The notary must write down such declaration of the testator and read it to the latter and to the witnesses;
4. The testator and the witnesses must, after having acknowledged the correctness of the writing, sign their names and affix their seals. If the testator, however, is not able to sign his name, the notary may instead thereof certify the reason for his not doing so;
5. The notary must certify under his hand and seal that the will has been made in compliance with the forms specified under Nos. 1–4.

If a will is to be made by a secret document, the following forms must be observed:—

1. The testator must sign his name on the document and affix his seal; ​
2. He must close up the document and put at the place of closure the same seal which he has used in the document;
3. He must produce the closed document before a notary and at least two witnesses, and declare to them that it contains his last will, and must state the name and domicile of the draftsman of the document;
4. After the notary has written down upon the cover of the document the date of the production and the declaration of the testator, he, the testator and the witnesses must sign their names and affix their seals.

The provisions of Art. 1068, 2 apply correspondingly to a will made by a secret document.

In case a will made by a secret document is insufficient as to the forms specified in the preceding article, it may still be valid as a holograph will, if it complies with the provisions of Art. 1068.

If a person who is unable to speak desires to make his will by a secret document, he must in place of the declaration required in Art. 1070, 1, No. 3 write with his own hand in the presence of the notary and of the witnesses upon the cover of the document a statement that the enclosed document is his will, and add the name and the domicile of the draftsman of the document.

The notary instead of writing on the cover the declaration of the testator, must certify thereon that ​the testator has complied with the requirements of the preceding paragraph.

If a person who has been adjudged incompetent desires to make a will in a lucid interval, he must do so in the presence of two physicians.

The physicians present at the making of such a will, must add a certificate under their hands and seals that the testator at the time of making it was not in a mentally unsound state. In the case of a will made by a secret document the physicians must make the above mentioned certificate upon the cover under their hands and seals.

The following persons cannot act as witnesses or assistants at the making of a will:—

1. Minors;
2. Persons adjudged incompetent or quasi-incompetent;
3. Persons who have been deprived permanently or temporarily of their public rights;
4. The husband or wife of the testator;
5. Expectant heirs or legatees and their husbands or wives or lineal blood relatives;
6. Persons who are in the same house with the notary or his lineal blood relatives, and his clerks and servants.

Two or more persons cannot make their wills by a single document.

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A person who from sickness or other cause is in danger of death may make his will by declaring its contents orally in the presence of at least three witnesses to one of them. The witness to whom the declaration is made must commit it to writing and read it to the testator and the other witnesses, and thereupon all of the witnesses, after having acknowledged the correctness of the writing, must add their signatures and seals.

A will so made loses its validity, unless within twenty days it is confirmed by the court upon the application of a witness or a person interested.

The court must grant the confirmation only after it is satisfied that the document contains the true will of the testator.

A person who is in a place with which intercourse is suspended by the order of the administrative authorities because of the prevalence of an infectious disease may make a will in writing in the presence of a police official and at least one witness.

A person in military service or any other person connected with the military force may while at the place of war make a will in writing in the presence of ​an officer or of a military official having the rank of an officer and at least two witnesses. In case there is no such officer or official having the rank of an officer, an acting officer or a non-commissioned officer may take his place.

If such testator because of sickness or wounds is in a hospital, a physician of the hospital may take the place of such officer or military official.

If a person in the military service or connected with the military force during war is in danger of death because of sickness, wounds or other cause, he may make his will orally in the presence of at least two witnesses.

Such will is not valid, unless the witnesses commit its contents to writing and sign and seal the document, and some one of them or any person interested without delay has it confirmed by the military judge-advocate.^[6]

In the preceding case the provisions of Art. 1076, 3 apply correspondingly.

A person on shipboard can make a will in writing: if on a man of war or any other vessel belonging to the navy, in the presence of a naval officer or some person having the rank of a naval officer and at least two witnesses; if on any other vessel, in the presence of the master or an officer of the vessel and at least two witnesses.

​If there is no such officer or person, an acting naval officer or non-commissioned naval officer may take his place.

The provisions of Art. 1079 apply correspondingly in the case of danger on shipboard. But if a person not belonging to the navy has made his will on shipboard, confirmation by the court is required.

In the cases mentioned in Arts. 1077, 1078 and 1080 the testator, the draftsman, the persons called as assistants and the witnesses must all sign and seal the document containing the will.

If in the cases mentioned in Arts. 1077–1081 a person is unable to write his name or to affix his seal, the assistants or witnesses must add a note in writing, stating the reason why it was not done.

The provisions of Arts. 1068, 2 and 1073–1075 apply correspondingly to a will made according to the provisions of the preceding eight articles.

A will made in any of the forms described in the preceding nine articles becomes invalid, if the testator lives for six months from the time when he might have made a will in the ordinary form.

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If a Japanese who is in a place where a Japanese consul is stationed desires to make his will by a public or secret document, the consul performs the functions of a notary.

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A will takes effect at the death of the testator.

If a condition precedent is annexed to a will, and the condition happens only after the death of the testator, the will takes effect from the time of the happening.

A legatee may at any time after the death of the testator declare his refusal of the legacy.^[7]

The refusal relates back to the time of the death of the testator.

The person bound by the legacy or any other person interested may notify the legatee to accept or refuse ​the legacy within a reasonable time fixed by the notifier. If the legatee does not express his intention to the person bound by the legacy, the legacy is deemed to be accepted.

If a legatee dies without having accepted or refused the legacy, his heirs may within the limits of their right of succession, accept or refuse it. But if the testator has expressed a different intention in the will, such intention is to govern.

An acceptance or refusal of a legacy cannot be revoked.

The provisions of Art. 1022, 2 apply correspondingly to the acceptance and refusal of legacies.

A universal legatee has the same rights and duties as an heir to property.

A legatee may require the person bound on the legacy to give him security for it for so long as it is not yet performable. The same applies to a legacy to which a condition precedent is attached, for the time during which the condition is pending.

A legatee is entitled to the fruits from the time when ​he can demand performance of the legacy; but if the testator has expressed a different intention in his will, such intention is to govern.

If the person bound on the legacy has after the death of the testator made expenditures upon the thing which is the subject of the legacy, the provisions of Art. 299 apply correspondingly.

For ordinary necessary expenditures which he has made for the purpose of securing the fruits, he may demand compensation up to the value of the fruits.

A legacy lapses, if the legatee dies before the testator.

The same takes place in case of a legacy subject to a condition precedent, if the legatee dies before the condition happens. But if the testator has expressed a different intention in his will, such intention is to govern.

If a legacy does not take effect at all, or if it by reason of refusal ceases to have effect, whatever the legatee ought to have received falls to the heir. But if the testator has expressed a different intention in his will, such intention is to govern.

If the right which forms the subject of the legacy does not belong to the estate at the time of the death of the testator, the legacy is void. This, however, does not apply, if it appears that such right has been made the ​subject of the legacy without regard to whether it belongs to the estate or not.

If a legacy, the subject of which is a right not belonging to the estate, takes effect according to the proviso of the preceding article, the person bound by the legacy must acquire the right and transfer it to the legatee. If such acquisition is impossible, or is possible only at an unreasonable expense, the person bound by the legacy must pay the value of it to the legatee; but if the testator has expressed a different intention in his will, such intention is to govern.

If in the case of a legacy of a non-specific thing the thing delivered in performance is reclaimed from the legatee by a third person, the person bound by the legacy warrants as if he were a seller.

If in the case of a legacy of a non-specific thing the thing delivered is defective, the person bound on the legacy must furnish in its place a thing free from defects.

If the testator has a right to claim pecuniary compensation against a third person for the destruction or alteration of the thing forming the subject of the legacy or for the loss of its possession, it is presumed that such right forms the subject of the legacy.

If the thing forming the subject of the legacy is ​attached to or mixed with another thing, and the testator under the provisions of Arts. 243–245 has become sole owner or co-owner of the whole resulting thing, it is presumed that such ownership or co-ownership forms the subject of the legacy.

If the thing or the right forming the subject of a legacy is subject, at the time of the testator’s death, to any right of a third person, the legatee cannot require the person bound on the legacy to extinguish such right, unless the testator has expressed a contrary intention in his will.

When an obligation forms the subject of a legacy, if the testator has received performance and the thing received in performance still remains in the estate, such thing is presumed to be the subject of the legacy.

If in such case the subject of the obligation was a sum of money, the value of the obligation is presumed to be the subject of the legacy, even though there is not a corresponding sum of money in the estate.

A person who has received a legacy subject to a charge, is required to perform the duty with which he is charged only up to the value of the subject of the legacy.

If the legatee refuses the legacy, the holder of the charge can become himself legatee; but if the testator has expressed a different intention in his will, such intention is to govern.

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If the amount of a legacy which is subject to a charge is reduced, because the heir has only accepted qualifiedly, or because an action has been brought for the recovery of a legal portion, the legatee is freed from the charge proportionately; but if the testator has expressed a different intention in his will, such intention is to govern.

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As soon as the custodian of a document containing a will has notice of the occurrence of the succession, he must without delay present the will to the court and ask for its probate. If there is no custodian, the heir has the same duty as soon as he finds the document.

The preceding provisions do not apply to a will made by a public document.

A will closed with a seal can be opened only by the court in the presence of the heir or his representative.

A person who omits to present a will to the court as prescribed in the last article, or who carries it out without asking for its probate, or who opens a will ​closed with a seal without the co-operation of the court, shall be punished by a fine of not more than two hundred yen.

A testator may by his will appoint one or more executors or commit such appointment to a third person.

A third person to whom such an appointment is committed must without delay make the appointment and notify the heirs thereof.

If a third person to whom the appointment is committed desires to refuse such commission, he must without delay give notice thereof to the heirs.

An executor of a will must after he has declared his willingness to accept the position, begin at once the performance of his duties.

Any heir or any other person interested may fix a reasonable time within which the executor must declare whether he will accept or not. If the executor does not make a declaration to the heirs within the time fixed, he is deemed to have accepted.

An incapacitated person or a person who has been adjudged bankrupt cannot be an executor.

If there is or afterwards comes to be no executor, ​the court may on the application of any person interested appoint an executor.

An executor so appointed can refuse to accept the position only for a just cause.

An executor must without delay make an inventory of the estate and deliver it to the heirs.

If demanded by an heir, the executor must make such inventory in his presence or have it made by a notary.

An executor has the right and duty to do all acts necessary for the management of the estate and the carrying into execution of the will.

The provisions of Art. 644–647 and 650 apply correspondingly to executors.

If there is an executor, the heirs must not dispose of the estate or do any other acts interfering with the carrying into execution of the will.

If the will relates to particular parts of the testator’s property, the provisions of the preceding three articles apply only as to such parts.

An executor of a will is deemed to be the representative of the heirs.

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An executor can commit the performance of his duties to a third person only in case of necessity, unless the testator has expressed a contrary intention in his will.

If the executor has committed the performance of his duties to a third person in accordance with the proviso of the foregoing paragraph, his responsibility to the heirs is as specified in Art. 105.

If there are several executors, the manner of performing their duties is decided by a majority vote; but if the testator has expressed a different intention in his will, such intention is to govern.

The provisions of the preceding paragraph notwithstanding, each executor has the right to do acts of preservation.

An executor is entitled to remuneration only if it is so provided in the will.

If the court appoints an executor, it may grant him a remuneration according to the circumstances of the case.

If an executor is entitled to remuneration, the provisions of Arts. 648, 2, 3, apply correspondingly.

Any person interested can apply to the court for the removal of an executor, if he neglects his duties, or for any other just cause.

​An executor even after assuming his position may resign it for any just cause.

When the duties of an executor have come to an end, the provisions of Arts. 654 and 655 apply correspondingly.

The expenses of the carrying into execution of a will fall upon the estate; but legal portions must not be diminished thereby.

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A testator may at any time revoke his will wholly or partly by complying with the form provided for the making of a will.

If an earlier and a later will conflict, the earlier will is deemed to be revoked by the later one as to the parts in which they conflict.

These provisions apply correspondingly to a conflict between a will and a disposition inter vivos or another juristic act made after the making of the will.

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If a testator intentionally wholly or partly destroys the document containing his will, the latter is deemed to be revoked as to the part destroyed. The same applies, if the testator intentionally destroys a thing forming the subject of a legacy.

A will which has been revoked according to the provisions of the preceding three articles, does not recover its validity, if the act of revocation is itself revoked or becomes invalid. But this does not apply, if the act of revocation is caused by fraud or coërcion.

The right to revoke a will cannot be renounced.

If a person who has received a legacy subject to a charge does not perform the duty imposed upon him, the heir may fix a reasonable time and require him to perform within that time. If he does net perform within such time, the heir may apply to the court to cancel the legacy.

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A descendant who is the legal heir to the house is ​entitled to one half of the estate as his legal portion.

Any other heir to the house is entitled to a third of the estate as his legal portion.

A descendant who is heir to property is entitled to one half of the estate as his legal portion.

A husband or wife or an ascendant who is heir to property is entitled to one third of the estate as his legal portion.

In determining the amount of a legal portion, to the property which the ancestor had at the time when the succession occurred is to be added the amount of any property of which he has disposed by gift, and from the sum so found the whole amount of his obligations is to be subtracted.

The value of a conditional right or one which is uncertain in its duration, is to be fixed by a valuation to be made by experts appointed by the court.

In determining the amount of a legal portion, the value of a right pertaining to the special rights of succession to a house is not to be taken into account.

The amount of a gift is to be taken into account according to the provisions of Art. 1132 only if the gift was made within one year before the succession occurred; but even though made before one year, a gift shall be taken into account, if at the time of making it all the parties concerned knew that it would cause damage to the person entitled to a legal portion.

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A person entitled to a legal portion or his successor may demand the reduction of legacies or of gifts coming under the provisions of the preceding article, so far as is necessary for the protection of his portion.

If the subject of a gift or legacy is a conditional right or one whose duration is uncertain, and such legacy or gift is to be partly reduced, the person entitled to a legal portion must pay without delay to the donee or legatee the amount of the remaining part according to the value of the right as determined in compliance with the provisions of Art. 1132, 2.

Gifts shall be reduced only after legacies.

Legacies shall be reduced in proportion to the value of their subjects. If, however, the testator has expressed a different intention, such intention is to govern.

The reduction of gifts begins with the latest and proceeds in the order of time to the earliest.

In addition to the property to be restored the donee must also restore its fruits from the day when the claim for reduction was made.

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Any loss arising from the fact that the donee from whose gift the reduction is to be made has not the means of restoring falls upon the person entitled to the legal portion.

As to a gift subject to a charge, reduction can be demanded only in respect to that part which remains after deducting the amount of the charge from the amount of the gift.

A juristic act done upon consideration, if the consideration is inadequate, is deemed to be a gift only if all the parties concerned knew that it would cause damage to the person entitled to a legal portion. If in such case the person entitled to a legal portion demands reduction, he must restore the consideration.

If the donee has assigned to another the subject of the gift which is to be reduced, he must pay its value to the person entitled to a legal portion. If, however, the assignee at the time of assignment knew that such a transfer would cause damage to the person entitled to a legal portion, the latter may claim reduction against the assignee.

These provisions apply correspondingly, if the donee has created a right in the subject of the gift.

A donee or legatee can free himself from the duty ​of restoration by paying to the person entitled to the legal portion the value of the gift or legacy to the extent of the reduction to be made.

These provisions apply correspondingly in the case of the proviso contained in Art. 1143, 1.

The right to demand reduction is extinguished by prescription, if the person entitled to a legal portion does not exercise it for one year after the occurrence of the succession and the existence of the gift or legacy subject to reduction has become known to him. The same applies, if since the occurrence of the succession ten years have elapsed.

The provisions of Arts. 995, 1004, 1005, 1007 and 1008 apply correspondingly to legal portions.

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