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]
