permissible for them to waive the entire blood money, unless he has other wealth equivalent to one-third, because the right of the bequest shares equally with the right of the heirs. The judge should therefore ask: “Does he have other wealth equivalent to one-third?” If they reply, “He has nothing but this blood money,” he should say: “Then their waiver is valid only with respect to two-thirds of the blood money. As for one-third of it, it belongs to the bequest, if he had bequeathed one-third.”
Some people overlook this. For example, one may summon the heirs and record their waiver without asking whether the deceased made a bequest or not, and whether he had any wealth besides this blood money.
“Whoever is bequeathed a specified item, and it perishes, the bequest is void. But if the rest of the estate perishes, it belongs to the beneficiary of the bequest if it comes within one-third of the property remaining for the heirs.”
His statement, “Whoever is bequeathed a specified item, and it perishes, the bequest is void,” means that the testator might say, “I bequeath this car to So-and-so,” but the car then burns and is destroyed. The bequest is consequently void, because it is no longer possible to deliver the item bequeathed. The beneficiary has no right to demand from the heirs, “Give me the value of the car,” because it was a specified item that perished; thus, the bequest is void.
His statement, “But if the rest of the estate perishes, it belongs to the beneficiary of the bequest if it comes within one-third of the property remaining for the heirs,” means that if property other than the item bequeathed perishes—unlike the previous case—we must examine the matter. If the property perished before the testator’s death, the beneficiary is entitled only to one-third of what was bequeathed to him. This is because, when the testator dies, this specified item exceeds one-third, so only one-third of it may be executed. But if the property perished after death, then, as the author said, “it belongs to the beneficiary of the bequest if it comes within one-third of the property remaining for the heirs.” Thus, if it occurred after death, we say that whatever besides this specified item perished is deducted from the heirs’ share.