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FAMI´LIAE ERCISCUNDAE JUDI´CIUM

FAMI´LIAE ERCISCUNDAE JUDI´CIUM When several heredes succeeded to an inheritance, whether under a will or by title of intestacy, they held together in common according to the respective shares each might be entitled to. The unity of estate which existed between them could, however, be put an end to by partition. Every heres was entitled to a division of the hereditas, unless the testator had declared, or the co-heredes had agreed, that it should remain in common for a fixed time. The division could be made by agreement among the co-heredes, but in case they could not agree the division was made by compulsory process. For this purpose every heres had against each of his co-heredes a judicium or actio familiae erciscundae, which, like the judicia communi dividundo and finium regundorum, was of the class of mixtae actiones, or, as they are sometimes called, duplicia judicia, because each heres was both plaintiff and defendant (actor and reus), though he who commenced the proceedings and claimed an award (ad judicium provocavit) was to this extent in the position of plaintiff. This action was given by the Twelve Tables. It was the duty of the arbitri, who were appointed by the magistrate for the purpose, to divide the familia, which here signifies the property or hereditas as explained in the previous article. The property to be divided consisted of everything which belonged to the succession, with the exception of claims and debts, which by the law of the Twelve Tables were otherwise apportioned (Dig. 10, 2, § § 5-14;--Cod. 2, 3, 6; 3, 36, 6). The heredes were bound to bring in property of their own to be divided, which they had received from the deceased in his lifetime, as part of their share of the inheritance [BONORUM COLLATIO]. It was the duty of the arbitri to divide the inheritance into lots (partes divisae), and formally to award each lot to the several parties, according to their respective interests. The judicial award (adjudicatio) thus made could not be disputed in any subsequent proceedings. From the joint ownership of co-heredes obligations might arise between them which could be enforced by this action. Thus one heres was answerable to another for injury to the joint property. A co-heres was bound to account for any profit he had made from the inheritance, and could claim to be indemnified for any necessary expenses he had been put to in respect of it.

Erctum ciere is the technical term for the provocatio ad judicium in this action, which was expressed in a solemn form of words. (Cic. Or. 1.5. 6, 237; Quint. I. O. 7.3, 13; Paul. Diac. 82, 16; Festus, p. 82; Gel. 1.9: cf. Roby, Introd. to Digest, p. 50.)

The origin of the root erc or herc is uncertain (cf. Roby, op. cit.; Corssen, Krit. Beitr. 39 f.; Beitr. zur ital. Sprachkunde, 113). It seems, however, that the word means to divide (Gaius, 2.219). (Dig. 10, 2; Cod. 3.36, 38; Voigt, Die XII. Tafeln, § 127; Windscheid, Pandekten, § 608; Rosshirt, Testam. Erb. 2.135; Heimbach in Weiske's Rechtslex. s. v.)

[E.A.W]

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