[PAULUS libro uicensimo tertio ad edictum. ] §10.2.25.13Idem iuris est in pecunia promissa a testatore, si sub poena promissa sit: nam licet haec obligatio diuidatur per legem duodecim tabularum, tamen quia nihilum prodest ad poenam euitandam partem suam soluere, siue nondum soluta est pecunia nec dies uenit, prospiciendum est per cautionem, ut de indemnitare caueat per quem factum fuerit, ne omnis pecunia solueretur, aut ut caueat se ei qui solidum soluerit partem praestaturum: siue etiam soluit unus uniuersam pecuniam quam defunctus promittit, ne poena committeretur, familiae erciscundae iudicio a coheredibus partes recipere poterit.
The same rule of law applies to money promised by the testator if it was promised under a penalty; for although this obligation is divided by the Law of the Twelve Tables, nevertheless, because paying one's own share is of no avail to avoid the penalty, if the money has not yet been paid and the due date has not arrived, provision must be made by means of security, so that the one through whose fault it was caused that the whole money was not paid should give security for indemnity, or that he should give security that he will pay his share to the one who has paid the whole; or if one has indeed paid the entire money which the deceased promised in order to prevent the penalty from being incurred, he will be able to recover the shares from his co-heirs by the action for the division of an inheritance.
§10.2.25.14Idem obseruatur in pignoribus luendis: nam nisi uniuersum quod debetur offeratur, iure pignus creditor uendere potest.
The same is observed in redeeming pledges; for unless the whole of what is owed is offered, the creditor can lawfully sell the pledge.
§10.2.25.15Si unus ex coheredibus noxali iudicio seruum hereditarium defenderit et litis aestimationem optulerit, cum hoc expediret, id pro parte hoc iudicio consequatur.
If one of the co-heirs has defended a hereditary slave in a noxal action and offered the valuation of the suit, since this was advantageous, he shall recover it in proportion to his share by this action.
idem est et si unus legatorum nomine cauerit, ne in possessionem mitterentur et omnino quae pro parte expediri non possunt si unus cogente necessitate fecerit, familiae erciscundae iudicio locus est.
The same is true also if one has given security on account of legacies, lest they should be put into possession; and in general, if one has done under compelling necessity those things which cannot be dispatched in part, there is room for the action for the division of an inheritance.
§10.2.25.16Non tantum dolum, sed et culpam in re hereditaria praestare debet coheres, quoniam cum coherede non contrahimus, sed incidimus in eum: non tamen diligentiam praestare debet, qualem diligens pater familias, quoniam hic propter suam partem causam habuit gerendi et ideo negotiorum gestorum ei actio non competit: talem igitur diligentiam praestare debet, qualem in suis rebus.
A co-heir must answer not only for fraud but also for negligence in respect of the hereditary property, since we do not contract with a co-heir, but happen upon him; however, he does not have to exhibit such diligence as a diligent father of a family, since he had a reason for managing on account of his own share, and therefore the action for unauthorized management does not lie for him; therefore, he must exhibit such diligence as he does in his own affairs.
eadem sunt, si duobus res legata sit: nam et hos coniunxit ad societatem non consensus, sed res.
The same rules apply if a thing is bequeathed to two persons; for them also, it is not consent but the property that has joined them in a partnership.
§10.2.25.17Si incerto homine legato et postea defuncto legatario aliquis ex heredibus legatarii non consentiendo impedierit legatum, is qui impedit hoc iudicio ceteris quanti intersit eorum damnabitur.
If an unspecified slave is bequeathed and later, the legatee having died, one of the heirs of the legatee has hindered the legacy by not consenting, he who hinders shall be condemned in this action to the others for the amount of their interest.
idem est, si e contrario unus ex heredibus, a quibus generaliter homo legatus est quem ipsi elegerint, noluerit consentire, ut praestetur quem solui omnibus expediebat, et ideo conuenti a legatario iudicio pluris damnati fuerint.
The same is true in the converse case, if one of the heirs, by whom a slave was bequeathed generally whom they themselves were to choose, refused to consent to the delivery of the one whom it was advantageous for all to be paid, and therefore, being sued by the legatee in court, they were condemned in a larger sum.
§10.2.25.18Item culpae nomine tenetur, qui, cum ante alios ipse adisset hereditatem, seruitutes praediis hereditariis debitas passus est non utendo amitti.
Likewise, he is held liable under the head of negligence who, when he himself had entered upon the inheritance before the others, allowed servitudes owed to the hereditary estates to be lost through non-user.
§10.2.25.19Si filius cum patrem defenderet condemnatus soluerit uel uiuo eo uel post mortem, potest aequius dici habere petitionem a coherede in familiae erciscundae iudicio.
If a son, while defending his father, was condemned and paid, either during his father's lifetime or after his death, it can more equitably be said that he has a claim against his co-heir in the action for the division of an inheritance.
§10.2.25.20Iudex familiae erciscundae nihil debet indiuisum relinquere.
The judge of the division of an inheritance ought to leave nothing undivided.
§10.2.25.21Item curare debet, ut de euictione caueatur his quibus adiudicat.
Likewise, he must take care that security against eviction is given to those to whom he adjudges property.
§10.2.25.22Si pecunia, quae domi relicta non est, per praeceptionem relicta sit, utrum uniuersa a coheredibus praestanda sit an pro parte hereditaria, quemadmodum si pecunia in hereditate relicta esset, dubitatur.
If money which was not left at home has been left by preception, whether it must be provided in its entirety by the co-heirs, or in proportion to their hereditary shares, just as if money had been left in the inheritance, is doubted.
et magis dicendum est, ut id praestandum sit, quod praestaretur, si pecunia esset inuenta.
And the better opinion is that what would have to be provided is what would be provided if the money had been found.