[PAULUS libro uicensimo tertio ad edictum. ] §10.2.25.prHeredes eius, qui apud hostes decessit, hoc iudicio experiri possunt.
[PAULUS, On the Edict, book 23] The heirs of one who has died while in the hands of the enemy can bring this action.
§10.2.25.1Si miles alium castrensium, alium ceterorum bonorum heredem fecerit, non est locus familiae erciscundae iudicio: diuisum est enim per constitutiones inter eos patrimonium.
If a soldier has made one person heir to his military property and another to the rest of his property, there is no room for the action for the division of an inheritance; for the estate has been divided between them by imperial constitutions.
quemadmodum cessat familiae erciscundae iudicium, cum nihil in corporibus, sed omnia in nominibus sunt.
Just as the action for the division of an inheritance ceases to apply when there is nothing in the form of physical objects, but everything consists of claims.
§10.2.25.2Quantum uero ad accipiendum familiae erciscundae iudicium nihil interest, possideat quis hereditatem nec ne.
Indeed, as far as accepting the action for the division of an inheritance is concerned, it makes no difference whether someone possesses the inheritance or not.
§10.2.25.3De pluribus hereditatibus, quae inter eosdem ex diuersis causis communes sint, unum familiae erciscundae iudicium sumi potest.
In the case of several inheritances which are held in common between the same persons on different grounds, a single action for the division of an inheritance can be brought.
§10.2.25.4Si inter me et te Titiana hereditas communis sit, inter me autem et te et Titium Seiana, posse unum iudicium accipi inter tres Pomponius scribit.
If the inheritance of Titius is held in common between you and me, and that of Seius between me, you, and Titius, Pomponius writes that a single action can be accepted among the three of us.
§10.2.25.5Item si plures hereditates inter nos communes sunt, possumus de una familiae erciscundae iudicium experiri.
Likewise, if several inheritances are held in common between us, we can bring the action for the division of an inheritance concerning only one of them.
§10.2.25.6Si testator rem communem cum extraneo habebat siue rei suae partem alicui legauit aut heres ante iudicium familiae erciscundae acceptum partem suam alienauit, ad officium iudicis pertinet, ut eam partem, quae testatoris fuit, alicui iubeat tradi.
If the testator held property in common with a stranger, or bequeathed a part of his property to someone, or if an heir alienated his share before the action for the division of an inheritance was accepted, it belongs to the office of the judge to order that the share which belonged to the testator be delivered to someone.
§10.2.25.7Quod pro emptore uel pro donato puta coheres possidet, in familiae erciscundae iudicium uenire negat Pomponius.
Pomponius denies that what a co-heir possesses, for example, as a purchaser or as a donee, comes into the action for the division of an inheritance.
§10.2.25.8Idem scribit, cum ego et tu heredes Titio extitissemus, si tu partem fundi, quem totum hereditarium dicebas, a Sempronio petieris et uictus fueris, mox eandem partem a Sempronio emero et traditus mihi fuerit, agente te familiae erciscundae iudicio non ueniet non solum hoc quod pro herede possidetur, sed nec id quod pro emptore: cum enim per iudicem priorem apparuit totam non esse hereditatis, quemadmodum in familiae erciscundae iudicium ueniat?
The same writer states that when you and I had become heirs to Titius, if you had sued Sempronius for a part of a tract of land which you claimed was entirely hereditary, and were defeated, and later I purchased that same part from Sempronius and delivery was made to me, when you bring the action for the division of an inheritance, there will enter not only not that which is possessed as heir, but not even that which is possessed as purchaser; for since it appeared through the previous judge that the whole did not belong to the inheritance, how could it enter into the action for the division of an inheritance?
§10.2.25.9An ea stipulatio, qua singuli heredes in solidum habent actionem, ueniat in hoc iudicium, dubitatur: ueluti si is qui uiam iter actus stipulatus erat decesserit, quia talis stipulatio per legem duodecim tabularum non diuiditur, quia nec potest.
It is doubted whether a stipulation under which individual heirs have an action for the whole (in solidum) comes into this action; for instance, if one who had stipulated for a right of way, livestock way, or carriage way (uia iter actus) has died, because such a stipulation is not divided by the Law of the Twelve Tables, since indeed it cannot be.
sed uerius est non uenire eam in iudicium, sed omnibus in solidum competere actionem et, si non praestetur uia, pro parte hereditaria condemnationem fieri oportet.
But the truer view is that it does not enter into the action, but that the action for the whole belongs to all of them, and if the right of way is not provided, condemnation ought to be made in proportion to the hereditary share.
§10.2.25.10Contra si promissor uiae decesserit pluribus heredibus institutis, nec diuiditur obligatio nec dubium est quin duret, quoniam uiam promittere et is potest, qui fundum non habet.
On the other hand, if the promisor of a right of way has died leaving several instituted heirs, the obligation is not divided, nor is there any doubt that it continues, since even he who does not own the land can promise a right of way.
igitur quia singuli in solidum tenentur, officio iudicis cautiones interponi debere, ut, si quis ex his conuentus litis aestimationem praestiterit, id pro parte a ceteris consequatur.
Therefore, because individual heirs are bound for the whole, security ought to be interposed by the office of the judge so that, if any one of them is sued and pays the valuation of the suit, he may recover it in proportion to his share from the others.
§10.2.25.11Idem dicendum est et si testator uiam legauerit.
The same must be said even if the testator had bequeathed a right of way.
§10.2.25.12In illa quoque stipulatione prospiciendum est coheredibus, si testator promiserat 'neque per se neque per heredem suum fieri, quo minus ire agere possit', quoniam uno prohibente in solidum committitur stipulatio, ne unius factum ceteris damnosum sit.
In that stipulation also, the co-heirs must be on their guard if the testator had promised 'that nothing should be done, either by himself or by his heir, to prevent the other from going or driving'; since by the prohibition of a single heir, the stipulation is violated for the whole, lest the act of one should be damaging to the others.