LEGADOS, REVOCACIÓN TÁCITA Y ENTREGA DEL OBJETO: ENAJENACIÓN FORZOSA MEDIANTE AMPLIACIÓN DE CAPITAL Y RENUNCIA PREVENTIVA AL DERECHO DE SUSCRIPCIÓN PREFERENTE.

Abstract

A certain case of grounds for devise invalidity is addressed, that of revocation as provided for in article 869.2, which warns, «If the testator disposes of the devised or bequeathed thing or part thereof by any title or for any cause», the legacy, devise or bequest becomes void. Judicial controversies over revocation under these circumstances -whether revocation is declared expressly by the testator or effected tacitly by the performance of certain acts- frequently stem from the heirs' unwillingness to hand over the inheritance. The Supreme Court's ruling of 14 March 2012 is especially illustrative. The legatee there is a foundation created by the City of Barcelona after the testator's death, which foundation the testator himself named beneficiary of an extremely valuable collection of real estate. The aggrieved heirs refuse to hand over the devise. On the evidence of the officially proved findings of fact, it is held that, although the thing left the estate of the deceased, it did not do so as a tacit revocation. The singular feature of the case is that the disposal was not actually effected by the testator, but by one of the numerous companies in which he was the sole shareholder. The doubtful classification of this provision as a devise of a specific thing by the testator aside, the ruling ratifies the uniform line of jurisprudence on tacit revocation and the rule of the decedent's wishes.