Si pars hereditatis petatur
(Concerning actions for the recovery of a portion of an estate.)
1 Ulpianus libro quinto ad edictum. Post actionem, quam proposuit praetor ei qui ad se solum hereditatem pertinere contendit, consequens fuit et ei proponere qui partem hereditatis petit. 1Qui hereditatem vel partem hereditatis petit, is non ex eo metitur quod possessor occupavit, sed ex suo iure: et ideo sive ex asse heres sit, totam hereditatem vindicabit, licet tu unam rem possideas, sive ex parte, partem, licet tu totam hereditatem possideas. 2Quin immo si duo possideant hereditatem et duo sint, qui ad se partes pertinere dicant, non singuli a singulis petere contenti esse debent, puta Primus a Primo vel Secundus a Secundo, sed ambo a Primo et ambo a Secundo: neque enim alter Primi, alter Secundi partem possidet, sed ambo utriusque pro herede. et si possessor et petitor possideant hereditatem, cum unusquisque eorum partem dimidiam hereditatis sibi adserat, invicem petere debebunt, ut partes rerum consequantur: aut si controversiam sibi non faciunt hereditatis, familiae herciscundae experiri eos oportebit. 3Si ego ex parte me dicam heredem, coheres autem meus possideat hereditatem cum extraneo, cum non plus coheres haberet sua parte, utrum a solo extraneo an vero et a coherede deberem petere hereditatem, quaeritur. et Pegasus fertur existimasse a solo extraneo me petere debere eumque restituturum quidquid possidet, et fortassis hoc officio iudicis debeat fieri: ceterum ratio facit, ut a duobus petam hereditatem, hoc est et a coherede meo, et ille quoque dirigat actionem adversus exterum possessorem: sed Pegasi sententia utilior est. 4Item si, cum me ex parte dimidia heredem dicerem, trientem hereditatis possiderem, deinde residuum sextantem velim persequi, qualiter agam videamus. et Labeo scribit utique partem dimidiam me petere debere a singulis: sic fieri ut a singulis sextantem consequar, et habebo bessem: quod verum puto: sed ipse tenebor ad restitutionem sextantis ex triente quem possidebam. et ideo officio iudicis invicem compensatio erit admittenda eius quod possideo, si forte coheredes sint a quibus hereditatem peto. 5Interdum praetor incertae partis hereditatis petitionem indulget idoneis causis intervenientibus: ut puta est defuncti fratris filius, sunt et uxores defunctorum fratrum praegnates: quam partem fratris filius hereditatis vindicet incertum est, quia quot edantur fratrum defuncti filii incertum est. aequissimum igitur est incertae partis vindicationem ei concedi. non audenter itaque dicetur, ubicumque merito quis incertus est quam partem vindicet, debere ei incertae partis vindicationem concedi.
1 Ulpianus, On the Edict, Book V. After the action which the Prætor promises to grant to a party who alleges that the entire estate belongs to him, it follows that he should grant an action to him who demands a share of the estate. 1Where anyone brings suit for an estate, or for a portion of the same, he does not base his claim upon the amount which the possessor holds, but upon his own right; and therefore, if he is the sole heir, he will claim the entire estate, although the other party may be in possession of only one thing; and if he is an heir to one share of it he will demand a share, even though the other party may be in possession of the entire estate. 2Nay, more, where two parties are in possession of an estate, and two others allege that certain shares belong to them, the latter are not required to be content with making their claims against the two in possession; as, for instance, the first claimant against the first possessor, or the second against the second possessor, but both should bring suit against the first, and both against the second; for one has not the possession of the share claimed by the first, and the other possession of that claimed by the second, but both are in possession of the shares of each of the others, in the character of heirs. Where the possessor and plaintiff both have possession of the estate, each of them alleging that he is entitled to half of it, they must bring suit against one another, in order to obtain their shares of the property; or, if they do not raise any controversy on the ground of inheritance, they must bring suit for partition of the estate. 3Where I claim to be the heir to a share of an estate, and my co-heir, together with a stranger, is in possession, since my co-heir has no more than his share, the question arises, whether I must bring suit for the recovery of the estate against the stranger alone or against my co-heir also? Pegasus is said to have held the opinion that I should bring suit against the stranger alone, and that he must surrender whatever he has in his possession; and perhaps this should be ordered by the court upon application. Reason, however, suggests that I ought to bring suit for recovery of the estate against both of them; that is to say, against my co-heir also, and the latter ought to bring suit against the possessor who is a stranger. The opinion of Pegasus is, however, the more equitable one. 4Moreover, if I claim to be heir to half of the estate, and I am in possession of a third of the same, and I desire to obtain the remaining sixth let us consider what plan I should adopt. Labeo states that I should bring suit against each one for half, so that the result will be that I should obtain a sixth part from each of them, and shall then have two thirds. This I think to be correct, but I myself will be required to surrender one sixth of the third which I formerly possessed; and therefore the judge in the discharge of his duty must direct me to set off what I possess, if my co-heirs are the parties from whom I am claiming the estate. 5The Prætor sometimes grants permission to bring suit for a portion of an estate which is not certainly ascertained, where proper cause exists; for instance, where there is a son of a deceased brother, and the surviving wives of other deceased brothers are pregnant. In this case it is uncertain what portion of the estate the son of the deceased brother can claim, because it is not known how many children of the other deceased brothers will be born. Therefore, it is perfectly just that the claim of a share which is not known should be granted to the son; so that it may not be too much to say that where anyone is reasonably doubtful as to what share he should bring suit to recover, he ought to be permitted to claim a share which is as yet uncertain.
2 Gaius libro sexto ad edictum provinciale. Si ex pluribus, ad quos eadem hereditas pertinet, quidam adierint, quidam adhuc deliberent: eos qui adierint, si petant hereditatem, non maiorem partem petere debere, quam habituri essent ceteris adeuntibus: nec eis proderit, si ceteri non adierint. non adeuntibus autem ceteris poterunt tunc partes eorum petere, si modo ad eos pertinerent.
2 Gaius, On the Provincial Edict, Book VI. Where the same estate belongs to several persons some of whom enter upon the same, and others deliberate as to its acceptance, it is held that if those who enter bring an action to recover the estate, they should not sue for a larger share than they would have had if the others had entered upon it; nor will it be of any advantage to them if the others do not enter. But if the others do not enter, they can then bring suit for the shares of the latter, provided they are entitled to them.
3 Paulus libro septimo decimo ad Plautium. Antiqui libero ventri ita prospexerunt, ut in tempus nascendi omnia ei iura integra reservarent: sicut apparet in iure hereditatium, in quibus qui post eum gradum sunt adgnationis, quo est id quod in utero est, non admittuntur, dum incertum est, an nasci possit. ubi autem eodem gradu sunt ceteri quo et venter, tunc quae portio in suspenso esse debeat, quaesierunt ideo, quia non poterant scire, quot nasci possunt: ideo nam multa de huiusmodi re tam varia et incredibilia creduntur, ut fabulis adnumerentur. nam traditum est et quattuor pariter puellas a matre familias natas esse: alioquin tradidere non leves auctores quinquies quaternos enixam Peloponensi, multas Aegypti uno utero septenos. sed et tregeminos senatores cinctos vidimus Horatios. sed et Laelius scribit se vidisse in Palatio mulierem liberam, quae ab Alexandria perducta est, ut Hadriano ostenderetur, cum quinque liberis, ex quibus quattuor eodem tempore enixa, inquit, dicebatur, quintum post diem quadragensimum. quid est ergo? prudentissime iuris auctores medietatem quandam secuti sunt, ut quod fieri non rarum admodum potest, intuerentur, id est quia fieri poterat, ut tregemini nascerentur, quartam partem superstiti filio adsignaverint: τὸ γὰρ ἅπαξ ἢ δίς, ut ait Theophrastus, παραβαίνουσιν οἱ νομοθέται. ideoque et si unum paritura sit, non ex parte dimidia, sed ex quarta interim heres erit:
3 Paulus, On Plautius, Book XVII. The ancient authorities were so solicitous to maintain the interest of an unborn child who would be free at birth, that they reserved all its rights unimpaired until the time it was to be born. This is apparent in the law of succession concerning those who are in a more remote degree of relationship than the unborn child, and who are not admitted to the succession, as long as it is uncertain whether or not a child will be born. Where, however, there are others in the same degree of relationship as the one that is unborn, then the question has arisen what share of the estate should remain in suspense, since it is impossible to ascertain how many may be born; hence, there are so many various and incredible accounts given with reference to this matter that they are usually classed with fables. It is said that four daughters were born of a married woman at a single birth; and, also, certain writers, who are not unreliable, have stated that five children were born of a Peloponnesian woman on four different occasions, and that many Egyptian women have had several children at once. We have seen three brothers, the Horatii, Senators, of one birth, girded for battle; and Lælius states that he had seen a free woman on the Palatine Hill who had been brought from Alexandria in order to be shown to Hadrian with her five children, four of whom he alleges she was said to have brought forth at one time, and the fifth four days afterwards. What conclusion must then be arrived at? Authors learned in the law have taken a middle course, namely, they have considered what might not very rarely occur; and as three might happen to be born on one occasion, they assigned a fourth share to the son already born; for (as Theophrastus says) what happens once or twice, legislators pay no attention to, and therefore if a woman is actually about to bring forth only one child, the heir that is living will be entitled, not to half of the estate, but only to a fourth of the same:
4 Ulpianus libro quinto decimo ad edictum. et si pauciores fuerint nati, residuum ei pro rata adcrescere, si plures quam tres, decrescere de ea parte ex qua heres factus est.
4 Ulpianus, On the Edict, Book XV. And where a less number are born, his share will increase in proportion; and if more than three are born, there will be a decrease in the share to which he became the heir.
5 Paulus libro septimo decimo ad Plautium. Illud sciendum est, si mulier praegnans non sit, existimetur autem praegnans esse, interim filium heredem esse ex asse, quamquam ignoret se ex asse heredem esse. 1Idem est in extraneo, si ex certa portione heres institutus sit, ex reliqua postumi. quod si forte ita institutio facta est: ‘quotcumque mihi nati erunt et Lucius Titius pro virilibus portionibus heredes mihi sunto’, habebit haesitationem, numquid adire non possit, atque qui in testamento portionem suam nescit. sed utilius est posse eum adire qui nescit portionem, si cetera, quae oportet eum scire, non ignoret.
5 Paulus, On Plautius, Book XVII. The following should be borne in mind, namely, that if a woman is not pregnant, but it is thought that she is, her son in the meantime is sole heir to the estate, although he is not aware that he is such. 1The same rule applies in the case of a stranger, where he is appointed heir to a certain portion of an estate, and posthumous children to the remainder. But if the appointment of heirs should happen to be made in the following terms: “All children born to me, together with Lucius Titius, shall be heirs to equal shares”; doubt may arise whether he cannot enter upon the estate, just as one who did not know to what share he was entitled under the will. It is more advantageous, however, that he should be enabled to enter upon the estate if he does not know to what share of the same he is entitled, provided he is not ignorant of other matters which he should know.
6 Ulpianus libro sexto opinionum. Sorori, quam coheredem fratribus quattuor in bonis matris esse placuit, quinta portio pro portionibus quae ad eos pertinuit cedet, ita ut singuli in quarta, quam antehac habere credebantur, non amplius ei quintam conferant. 1Sumptus, qui propter onera totius hereditatis iusti fiunt, ei, qui patroni iure portionem evicerit, pro rata computentur.
6 Ulpianus, Opinions, Book VI. Where it has been decided that a sister is co-heir together with her four brothers to the estate of their mother, a fifth part of each of the shares which they possessed must be granted to her, so that they will give her no more than the fifth part of each one of the separate four shares to which they had previously believed themselves to be entitled. 1Where expenses are justly incurred on account of liabilities of an estate, they must be calculated proportionally against the party who has obtained a share of the estate by the right of a patron.
7 Iulianus libro octavo digestorum. Non possumus consequi per hereditatis petitionem id quod familiae erciscundae iudicio consequimur, ut a communione discedamus, cum ad officium iudicis nihil amplius pertineat, quam ut partem hereditatis pro indiviso restitui mihi iubeat.
7 Julianus, Digest, Book VIII. A party cannot obtain what he has secured by a judgment in an action for partition by means of an action for the recovery of an estate, the community of a joint ownership having been dissolved; for the jurisdiction of the judge only extends to his being able to order that an undivided share of the estate shall be delivered to the party applying for it.
8 Idem libro quadragensimo octavo digestorum. Permittendum erit possessori hereditatis partem quidem hereditatis defendere, parte vero cedere, nec enim prohibet aliquem totam hereditatem possidere et partem scire dimidiam ad se pertinere, de altera parte controversiam non facere.
8 The Same, Digest, Book XLVIII. The possessor of an estate should be permitted to defend the action so far as surrendering a share of the same is concerned; for he is not prohibited from holding the entire estate, as he is aware that half of it belongs to him, and does not raise any controversy with reference to the other half.
9 Paulus libro tertio epitomarum Alfeni digestorum. Cum multi heredes instituti essent, ex his unus in Asia erat: eius procurator venditionem fecit et pecuniam pro parte eius abstulerat: postea apparuerit eum qui in Asia erat antea decessisse instituto ex parte dimidia herede procuratore suo et ex parte alio. quaesitum est, quemadmodum pecunia ex hereditate petenda esset. responsum est ab eo, qui procurator eius fuisset, totam hereditatem, quia ex hereditate ea pecunia fuisset quae ad procuratorem ex venditione pervenisset, petere eos oportere: et nihilo minus partem dimidiam hereditatis a coheredibus eius. ita fore, sive omnis ea pecunia penes eum qui procurator fuisset resideret, ut omnem per iudicem ab eodem recuperarent, sive is partem dimidiam coheredi suo reddidisset, ipsum ex dimidia parte et ex dimidia coheredes eius condemnarent.
9 Paulus, Epitomes of the Digest of Alfenus, Book III. Where several heirs were appointed, and one of them at the time was in Asia, his agent made a sale and kept the money as the share of his principal. It was subsequently ascertained that the heir who was in Asia had previously died, after having appointed his agent heir to half his share and another party to the other half; and the question arose in what way an action to recover the money derived from the estate could be brought? The answer was that it ought to be brought for the entire estate against the party who had been the agent, because the money belonging to the estate had come into the possession of the said agent through the sale; nevertheless, they must bring an action against this co-heir for half the estate. The result would then be that if all the money was in the possession of the party who had been the agent, they might recover the entire amount from him, with the assistance of the court; or if he had returned half of it to his co-heir, they could take judgment against him for half, and against his co-heir for the other half.
10 Papinianus libro sexto quaestionum. Cum heredis ex parte instituti filius, qui patrem suum ignorabat vivo testatore decessisse, partem hereditatis nomine patris ut absentis administraverit et pecunias distractis rebus acceperit, hereditas ab eo peti non potest, quia neque pro herede neque pro possessore pretia possidet, sed ut filius patris negotium curavit. negotiorum autem gestorum actio ceteris coheredibus, ad quos portio defuncti pertinet, dabitur. illud enim utique non est metuendum, ne etiam patris, a quo forte exheredatus est, teneatur heredibus, quasi negotia hereditaria gesserit, cum id quod administravit non fuerit paternae hereditatis. nam etsi negotiorum gestorum actio sit ei, cuius nomine perceptum est: ei cuius nomine [ed. maior perceptum est perceptum alieno nomine] restitui aequum est. sed in proposito neque patris negotia fuerunt, qui esse desierat, neque paternae successionis, quae fuerunt alterius hereditatis. quod si filius iste patri suo heres extitit et movet controversiam, quod pater eius, postquam heres extitit, mortem obierit, ille tractatus incurrit, an ipse sibi causam possessionis mutare videatur. quoniam tamen qui negotia hereditaria gessit et debitor esse coepit, postea faciens controversiam hereditatis ut iuris possessor convenitur, idem etiam in hoc filio respondendum erit.
10 Papinianus, Questions, Book VI. Where the son of a person who was appointed heir to a certain portion of an estate was ignorant of the fact that his father had died during the lifetime of the testator, attended to the share of the estate in behalf of his father, as if he was absent, and, having sold certain property, collected the purchase-money of the same; an action for recovery could not be brought against him because he did not hold the purchase-money, either as heir or as possessor, but as a son who had transacted business for his father; but an action on the ground of business transacted would be granted to the other co-heirs, to whom a share of the estate of the deceased belonged. The following, therefore, should not give rise to apprehension, that is to say, that the son should be held liable to the heirs of his father (by whom perhaps he was disinherited), because he was, as it were, attending to their business which was connected with the estate; since the matter in which he was engaged did not belong to the estate of his father; for it is only just that, where an action based on business transacted is brought in behalf of another, what is collected for someone else ought to be given up to the party entitled to it. But, in the present instance, the business did not belong to the father, as he had ceased to exist, nor did it belong to the paternal succession, since it arose out of the estate of another. When, however, the son becomes the heir of his father and raises the controversy that his father died after he had become the heir; the question arises whether he may be considered to have changed the character of his right of possession? Nevertheless, as a party who has been transacting the business of an estate, and has become indebted on account of it, and afterwards raises a controversy with reference to the succession, can be sued as a possessor of a right; it must be held that, in this instance, the same rule is also applicable to the son.