Facts
The dispute concerns the question of whether a farm that has never belonged to the deceased is nevertheless part of his estate and can be attributed to one of the heirs pursuant to Art. 620 CC. The facts are as follows:
The father, Jakob [S.], had contractually committed on 25 June 1976 to transfer his farm to his son Ernst S. Before this transfer was carried out, Ernst [S.] passed away. In an addendum dated 15 November 1976, the heirs of Ernst S. (his widow and children) then entered into the rights and obligations of the attribution contract. They were registered in the land register as owners of the farm.
One of the heirs, Kurt [S.], subsequently requested that this farm be attributed to his share of the estate, in view of Art. 620 CC. The previous instances rejected this request, considering that the farm had never belonged to the deceased and therefore did not form part of his estate.
Considerations
The Federal Tribunal considers that the farm is indeed part of the estate of Ernst [S.] by virtue of the mechanism of real subrogation. Indeed, Ernst [S.] had a contractual right to obtain the transfer of the farm, a right that was transferred to his heirs. Although the farm never belonged outright to the deceased, it entered his estate through this subrogation mechanism.
Furthermore, the Federal Tribunal considers that Art. 620 CC, which…