[PAULUS libro sexto ad Sabinum. ] §10.2.44.prInter coheredes etiam communi diuidundo agi potest, ut res dumtaxat quae eorum communes sint et causae ex his rebus pendentes in iudicium ueniant, de ceteris uero in integro sit familiae erciscundae iudicium.
[PAULUS, from the sixth book on Sabinus.] An action for division of common property can also be brought between co-heirs, so that only those things which are common to them and the matters arising from these things come into judgment, while with respect to other things, the action for the division of an inheritance remains unimpaired.
§10.2.44.1Si familiae erciscundae uel communi diuidundo actum sit, adiudicationes praetor tuetur exceptions aut actiones dando.
If an action for division of an inheritance or for division of common property has been brought, the praetor protects the adjudications by granting exceptions or actions.
§10.2.44.2Si coheredes absente uno coherede rem uendiderunt et in ea re dolo malo fecerunt, quo plus ad eos perueniret, uel familiae erciscundae iudicio praestabunt ei qui afuit uel hereditatis petitione.
If, in the absence of one co-heir, the other co-heirs sold a thing and acted with malice in that matter so that more should come to them, they will be liable to the one who was absent either by the action for division of an inheritance or by the petition for inheritance.
§10.2.44.3Fructus, quos ante aditam hereditatem ex fundo hereditario heres capit, non aliter familiae erciscundae iudicio praestare eum Iulianus ait, quam si, cum sciret hereditarium fundum esse, ceperit.
Julian says that a heir is not otherwise liable in the action for division of an inheritance for fruits which he gathered from an inherited estate before accepting the inheritance, than if he gathered them knowing that the estate was part of the inheritance.
§10.2.44.4Qui familiae erciscundae et communi diuidundo et finium regundorum agunt, et actores sunt et rei et ideo iurare debent non calumniae causa litem intendere et non calumniae causa ad infitias ire.
Those who bring actions for division of an inheritance, for division of common property, and for regulation of boundaries, are both plaintiffs and defendants, and therefore they must swear that they do not initiate the litigation for the purpose of calumny, and that they do not deny for the purpose of calumny.
§10.2.44.5Quod ex facto suo unus ex coheredibus ex stipulatione hereditaria praestat, a coherede non repetet: ueluti si a se heredeque suo dolum malum afuturum defunctus spopondit uel neque per se neque per heredem suum fore, quo minus quis eat agat.
What one of the co-heirs pays from his own act based on an inherited stipulation, he shall not recover from his co-heir; for example, if the deceased promised that malice would be absent from himself and his heir, or that neither through himself nor through his heir would any impediment be made to anyone's passing or acting.
immo et si reliqui propter factum unius teneri coeperint, quasi condicio stipulationis hereditariae exstiterit, habebunt familiae erciscundae iudicium eum eo propter quem commissa sit stipulatio.
On the contrary, if the remaining heirs begin to be held liable because of the act of one, as if the condition of the inherited stipulation has been fulfilled, they will have the action for division of an inheritance against him because of whom the stipulation was forfeited.
§10.2.44.6Si quis stipulatus fuerit Titium heredemque eius ratum habiturum et Titius pluribus heredibus relictis decesserit, eum solum teneri qui non habuit ratum et solum ex heredibus stipulatoris acturum a quo fuerit petitum.
If anyone has stipulated that Titius and his heir will ratify an act, and Titius dies leaving several heirs, only the one who did not ratify is liable, and only that one of the stipulator's heirs will bring the action by whom the demand was made.
§10.2.44.7Usu fructu uxori legato donec ei dos soluatur, per arbitrum familiae erciscundae tam id, quod coheredis nomine ex dote solutum sit, recuperare potest, quam ut coheres soluat effici posse Cassius ait: et uerum est.
Where a usufruct is bequeathed to a wife until her dowry is paid, Cassius says that through an arbitrator for division of an inheritance, it is possible both to recover what was paid out of the dowry in the name of the co-heir, and to bring it about that the co-heir pays his share; and this is correct.
§10.2.44.8Si duo coheredes damnati sint statuam ponere et altero cessante alter eam fecerit, non esse iniquum Iulianus ait familiae erciscundae iudicium dare, ut pars impendiorum boni uiri arbitratu praestetur.
If two co-heirs are condemned to erect a statue, and while one fails to act, the other makes it, Julian says that it is not unfair to grant the action for division of an inheritance so that a share of the expenses may be paid according to the judgment of an honorable man.