1997.09.12

1994 (O) 2052

Minshu Vol. 51, No. 8 at 3887

Judgment concerning whether or not, a situation where a testator has no heir but there is a testamentary donee by universal succession who is entitled to the testator's property in whole should be regarded as falling under cases where "it is not evident whether an heir exists" for the purpose of in Article 951 of the Civil Code

Case to seek payment of loan trust fund, in which a person intervenes as a party to the suit

Judgment of the Second Petty Bench, quashed and remanded

Osaka High Court, Judgment of June 8, 1994

The situation where a testator has no heir but there is a testamentary donee by universal succession who is entitled to the testator's property in whole does not fall under the case where "it is not evident whether an heir exists" as set forth in Article 951 of the Civil Code.

Article 951, Article 964, and Article 990 of the Civil Code

Article 951 of the Civil Code
If it is not evident whether an heir exists, an estate that would be inherited shall be as a juridical person.

Article 964 of the Civil Code
A testator may make a disposition of his/her property, in whole or in part, comprehensive or specific title(s); provided that this may not violate provisions regarding legally reserved portion.

Article 990 of the Civil Code
A testamentary donee by a universal succession shall have the same rights as an heir.

The judgment of prior instance is quashed.
This case is remanded to the Osaka High Court.

Concerning the reasons for final appeal argued by the appellants
I. The outline of the facts determined by the court of second instance is as follows:
1. A made a will dated June 8, 1991, to the effect that upon his death, his property in whole shall be given by gift to B, one of the appellants of final appeal.
2. On July 28, 1992, A purchased a beneficiary certificate under a trust contract for loan trust (named "Big") from the Kobe Branch of the appellee of final appeal at 4.5 million yen. With regard to the said beneficiary certificate, it was provided that the trustee shall, upon request of the beneficiary, purchase the beneficiary certificate on or after August 5, 1993.
3. A died on April 1, 1993. He has no heir.
4. On June 29, 1993, C, another appellant of final appeal, was appointed by the Kobe Family Court as executor of A's will mentioned above.
5. On August 5, 1993, Appellant C requested the appellee to purchase the said beneficiary certificate and pay purchase money, but the appellee refused this request.

II. In this case, based on the facts mentioned above, Appellant C seeks from the appellee, as a principal claim, payment of purchase money of the beneficiary certificate, 4,607,292 yen, with delay damages thereon, and as an alternative claim, seeks completion of the procedure for changing the name of the holder of the trust account indicated in the attachment of the judgment of prior instance from A to Appellant B. Appellant B, who has intervened in this suit as a party thereto in the second instance, seeks with regard to Appellant C, a declaration that Appellant C does not have a right to claim payment of the said purchase money from the appellee, and also seeks from the appellee payment of the said purchase money with delay damages thereon.
The court of second instance upheld Appellant B's claim against Appellant C for the said declaration, while dismissing Appellant C's claim and the other claim made by Appellant B, on the grounds that since A had no heir, Appellant C, the executor, and Appellant B, the testamentary donee by universal succession, are not allowed to acquire A's property without going through the procedures required in the case of nonexistence of heir prescribed in Article 951 and the following of the Civil Code.

III. However, the determination of the court of second instance mentioned above cannot be affirmed, on the following grounds.
Where a testator has no heir but there is a testamentary donee by universal succession who is entitled to the testator's property in whole, it is appropriate to construe that such situation does not fall under the case where "it is not evident whether an heir exists" set forth in Article 951 of the Civil Code. The provisions of the said Article through to Article 959 (Part V, Chapter 6) of the Civil Code provided for the methods for administration and liquidation of a decedent's property in the case where any person who is entitled to the said property is unknown. A testamentary donee by universal succession shall have the same rights and obligations as an heir (Article 990 of the Civil Code) and shall basically succeed to, upon the testator's death, all rights and obligations that are included in the testator's property. This means that where there is a testamentary donee by universal succession, it is not necessary to require the procedures under the said provisions to be performed.

IV. Contrary to this reasoning, despite the existence of the testamentary donee by universal succession for A's property in whole, the court of second instance determined that the procedures required in the case of nonexistence of heir prescribed in Article 951 and the following of the Civil Code should be performed with regard to A's property only because A has no heir. This determination of the court of second instance is illegal because it has wrongly construed or applied laws and regulations, and such illegality apparently affects the conclusion of the judgment of prior instance. The appellants' argument is well-grounded, and the judgment of prior instance should inevitably be quashed. In this case, it is necessary to make further examination by identifying the purport and cause of each party's claim according to the contents of the trust contract for loan trust and other relevant factors. Therefore, we remand this case to the court of second instance.

Therefore, according to Article 407, para.1 of the Code of Civil Procedure, the judgment has been rendered in the form of the main text by the unanimous consent of the Justices.

Justice NEGISHI Shigeharu
Justice ONISHI Katsuya
Justice KAWAI Shinichi
Justice FUKUDA Hiroshi