Claim of the surviving spouse against the heirs of the deceased husband for payment of the statutory share

Facts

The late Heinrich Weber-Leibundgut, who died on June 5, 1961, left behind his wife Lina Weber-Leibundgut and their two sons Heinz and Rudolf Hans Weber as legal heirs. In his will, the deceased had stipulated that his wife should be paid the amount of CHF 100,000 as a statutory share, including the property she had brought into the marriage. On March 21, 1972, Lina Weber-Leibundgut filed a lawsuit against her son Rudolf Hans Weber at the District Court of Meilen. She demanded that he, jointly and severally with his brother Heinz, pay her the amount of CHF 2,400,000 plus 5% interest since September 9, 1968. She argued that the statutory share had actually amounted to CHF 7.5 million and that she was therefore entitled to one-third of this amount, for which each of the heirs was jointly and severally liable. The defendant argued in his statement of defense that he lacked passive legitimation, as the claim sued for should have been directed against both sons jointly as a necessary joinder of parties. Both the District Court of Meilen and the High Court of the Canton of Zurich dismissed this plea.

Considerations

The Federal Court dismisses the defendant's appeal. It states that according to Art. 603 para. 1 of the Swiss Civil Code, the heirs are jointly and severally liable for the debts of the decedent. This principle of joint and several liability has also been extended by the Federal Court to the payment of legacies and certain debts of the estate, even though these are not debts of the decedent, but rather of the heirs.

However, the Federal Court notes that in earlier case law it had rejected the application of Art. 603 para. 1 of the Swiss Civil Code to claims of individual heirs against the estate. It assumed that the principle of joint and several liability had been established only in the interest of creditors who did not belong to the community of heirs, whereas the claims of individual heirs against the decedent were to be settled in the partition procedure.

In the present case, the question now arises whether the liability for claims arising from the matrimonial property regime, which are asserted by the surviving spouse against the heirs of the predeceased, is governed by Art. 603 para. 1 of the Swiss Civil Code or whether such claims, in accordance with the…