Facts
The testator August Wiederkehr had appointed his then fiancée Irma Neff as the sole heiress in his will dated July 1, 1965, disinherited his son Harry Wiederkehr, and appointed August Graf as the executor of the will and advisor to the universal heiress. In a settlement dated August 22, 1967, Irma Wiederkehr-Neff acknowledged that Harry Wiederkehr had a claim to the compulsory portion of 9/16 of the estate.
The main asset of the estate was a property in Spreitenbach measuring 5743 m2, which was valued at CHF 200,000 in the inventory. The executor unsuccessfully tried to sell the property for at least CHF 450,000. He then offered it to the municipality of Spreitenbach for CHF 420,000, which it decided to acquire for CHF 380,000, subject to the approval of the municipal assembly.
Harry Wiederkehr then filed a complaint against the executor, requesting that he be prohibited from selling the property without the consent of the heirs or the court. The lower instances dismissed the complaint, whereupon Harry Wiederkehr appealed to the Federal Supreme Court.
Considerations
The Federal Supreme Court states that the executor must proceed with the division of the inheritance according to the provisions of the law, as the testator has not made any deviating arrangements. According to Art. 518 para. 2 of the Swiss Civil Code (ZGB), the executor is in particular commissioned to carry out the division according to the provisions of the law.
According to Art. 607 and 610 et seq. ZGB, inheritance matters are generally to be distributed in kind among the heirs. Only if an…