[ULPIANUS libro nono decimo ad edictum. ] §10.2.20.prSi filia nupta, quae dotem conferre debuit, per errorem coheredum ita cauit, ut, quod a marito reciperasset, pro partibus hereditariis solueret, nihilo minus arbitrum familiae erciscundae sic arbitraturum Papinianus scribit, ut, etiamsi constante matrimonio ipsa diem suum obierit, conferatur dos: nam imperita, inquit, coheredum iurisdictionis formam mutare non potuit.
[ULPIANUS, On the Edict, book 19] If a married daughter, who was obliged to bring in her dowry, made a guarantee through an error of her co-heirs in such a way that she would pay according to her hereditary shares what she had recovered from her husband, Papinian writes that the arbiter for dividing the inheritance will nevertheless decide in such a way that, even if she dies during the existence of the marriage, the dowry must be brought in; for, he says, the ignorance of the co-heirs could not alter the form of jurisdiction.
§10.2.20.1Si filius familias iussu patris obligatus sit, debebit hoc debitum praecipere: sed et si in rem patris uertit, idem placet.
If a son under paternal power has been obligated by the command of his father, he ought to take this debt beforehand; but even if it has turned to the profit of the father, the same is approved.
et si de peculio, peculium praecipiet: et ita imperator noster rescripsit.
And if it is from his peculium, he shall take the peculium beforehand; and so our Emperor replied by rescript.
§10.2.20.2Hoc amplius filius familias heres institutus dotem uxoris suae praecipiet, nec immerito, quia ipse onera matrimonii sustinet.
Furthermore, a son under paternal power appointed as heir shall take the dowry of his wife beforehand, and not without reason, because he himself supports the burdens of the marriage.
integram igitur dotem praecipiet et cauebit defensum iri coheredes, qui ex stipulatu possunt conueniri.
Therefore, he shall take the entire dowry beforehand and shall guarantee that his co-heirs, who can be sued on the stipulation, will be defended.
idem et si alius dotem dedit et stipulatus est.
The same applies if someone else gave the dowry and stipulated for its return.
nec solum uxoris suae dotem, sed etiam filii sui uxoris, quasi hoc quoque matrimonii onus ad ipsum spectet, quia filii onera et nurus ipse adgnoscere necesse habet.
And not only the dowry of his own wife, but also that of his son's wife, as if this burden of marriage also belonged to him, because he himself must acknowledge the burdens of his son and daughter-in-law.
praecipere autem non solum patri datam dotem filium oportere, uerum etiam ipsi filio Marcellus scribit, sed filio datam tamdiu, quamdiu peculium patitur uel in rem patris uersum sit.
Moreover, Marcellus writes that the son ought to take beforehand not only the dowry given to his father, but also that given to the son himself; but that given to the son only so long as the peculium permits or it has been turned to the profit of the father.
§10.2.20.3Si pater inter filios sine scriptura bona diuisit et onera aeris alieni pro modo possessionum distribuit, non uideri simplicem donationem, sed potius supremi iudicii diuisionem Papinianus ait.
If a father divided his property among his sons without writing and distributed the burdens of debt according to the measure of their possessions, Papinian says that this does not seem to be a simple donation, but rather a division by a last will.
plane, inquit, si creditores eos pro portionibus hereditariis conueniant et unus placita detrectet, posse cum eo praescriptis uerbis agi, quasi certa lege permutationem fecerint, scilicet si omnes res diuisae sint.
Clearly, he says, if the creditors sue them according to their hereditary shares and one of them refuses the agreed terms, an action on prescribed words can be brought against him, as if they had made an exchange under a certain condition, provided of course that all properties have been divided.
§10.2.20.4Familiae erciscundae iudicium amplius quam semel agi non potest nisi causa cognita: quod si quaedam res indiuisae relictae sunt, communi diuidundo de his agi potest.
The action for dividing an inheritance cannot be brought more than once, except upon cause shown; but if some properties have been left undivided, an action for dividing common property can be brought concerning them.
§10.2.20.5Papinianus ait, si uni ex heredibus onus aeris alieni iniungatur citra speciem legati, officio iudicis familiae erciscundae cognoscentis suscipere eum id oportere, sed non ultra dodrantem portionis suae, ut quadrantem illibatum habeat: indemnes igitur coheredes suos praestare cauebit.
Papinian says that if the burden of debt is imposed on only one of the heirs without the form of a legacy, he ought to undertake it through the office of the judge hearing the division of the inheritance, but not beyond three-quarters of his share, so that he may have one-quarter unimpaired; therefore, he shall guarantee to keep his co-heirs harmless.
§10.2.20.6Idem scribit et si filius in muneribus publicis, in quibus pater ei consentit, reliquatus est et pro parte heres scriptus est, hoc quoque debere praecipere, quia et hoc patris aes alienum fuit: sed si qua munera post mortem patris suscepit, ab his heredes patris soluti sunt.
He also writes that if a son has been left in arrears in public offices to which his father consented, and has been written as heir for a share, he ought to take this also beforehand, because this too was a debt of his father; but if he undertook any offices after the death of his father, the heirs of the father are released from these.
§10.2.20.7Neratius autem respondit: eum, qui plures filios habet, unum ex filiis ἀγωνοθεσίαν suscepturum professum esse et priusquam honore fungeretur, mortuum esse omnibus filiis heredibus institutis, et quaesitum esse, an is filius, quod in eam rem impendisset, familiae erciscundae consequaetur: eique respondisse nulla actione idem consequi posse, quod merito displicet.
But Neratius answered: a man who had several sons declared that one of his sons would undertake the presidency of games, and died before he performed the office, all his sons being appointed heirs; and it was asked whether that son could recover what he had spent on that matter through the action for dividing an inheritance. And he answered that he could recover it by no action, which is rightly disapproved.
debet itaque hoc in familiae erciscundae iudicium uenire.
Therefore, this ought to come into the judgment for dividing an inheritance.
§10.2.20.8Item Papinianus scribit, si maritus alterum ex heredibus onus dotis soluendae, quae in stipulationem uenit, suscipere iussit et mulier aduersus utrumque dirigat dotis petitionem, coheredem esse defendendum ab eo, qui suscipere onus iussus est.
Likewise, Papinian writes that if a husband ordered one of his heirs to undertake the burden of paying a dowry which came into a stipulation, and the woman directs her petition for the dowry against both, the co-heir must be defended by the one who was ordered to undertake the burden.
sed legata, quae ab utroque pro dote data electa dote retinentur, in compendio coheredis esse, qui debito leuatur, non oportet, uidelicet ut coheres, qui onus aeris alieni suscepit, officio iudicis legatum consequaetur.
But it is not proper that legacies, which were given by both in place of the dowry and are retained upon the choice of the dowry, should be to the advantage of the co-heir who is relieved of the debt; namely, so that the co-heir who undertook the burden of the debt may recover the legacy through the office of the judge.
et uerum est hoc, nisi aliud testator edixit.
And this is true unless the testator declared otherwise.
§10.2.20.9Idem scribit, quod uni ex coheredibus statuliber condicionis implendae nomine dedit de peculio, in hoc iudicium non uenire nec communicari debere:
He also writes that what a conditionally emancipated slave gave to one of the co-heirs from his peculium for the sake of fulfilling a condition does not come into this judgment, nor ought it to be shared: