1Gaius, On the Provincial Edict, Book VII. This action is derived from the Law of the Twelve Tables, for it was considered necessary, where co-heirs desired to relinquish ownership in common, that some kind of action should be established by which the property of the estate might be distributed among them. 1This action, in fact, can be brought directly by a party who is not in possession of his share. Where, however, he who is in possession of the estate denies that the plaintiff is his co-heir, he can bar him by an exception stated as follows: “If the inheritance is not prejudiced with reference to the matter in question.” If the party possesses his share, even though it may be denied that he is a co-heir, an exception of this kind will not be a bar; the result of which is that, in this instance, the judge himself who hears the case must determine whether the party is a co-heir or not; for if he is not, nothing will be adjudged to him, nor will his adversary be required to make him any payment.

2Ulpianus, On the Edict, Book XIX. By means of the action for the partition of an estate the latter can be divided whether it is derived from a will or passes by intestacy, and whether the estate is granted by the Law of the Twelve Tables, or by some other law, or by a Decree of the Senate, or even by an Imperial Constitution. Generally speaking, an estate can be divided only between those after whose death an action to recover it can be brought. 1If a fourth of the estate is coming to anyone who was arrogated in accordance with the Constitution of the Divine Pius, then, because a party of this kind does not become either an heir or the possessor of the property, a prætorian action will be necessary for the partition of the estate. 2Moreover, if the peculium of the son of a family who is a soldier is in question, it can be forcibly asserted that an estate is created by the Imperial Constitutions, and therefore this action will be available. 3In an action for the partition of an estate, each of the heirs takes the part of both defendant and plaintiff. 4Again it cannot be doubted that an action for the partition of an estate can be maintained where only a few heirs out of many institute proceedings. 5Although claims are not considered in this action, nevertheless, if stipulations had been entered into with reference to the division of the same, so that it is settled that each party shall assign rights of action to the other and appoint him agent for the transaction of his business, the division shall be adhered to.

3Gaius, On the Provincial Edict, Book VII. It is evident that it sometimes becomes the duty of the judge to see that different debts and claims are assigned to different heirs in severalty, because it often occurs that the payment or collection of debts to be apportioned among different shares causes no small degree of inconvenience. Still, this assignment does not always have the effect of rendering a single heir liable for the entire indebtedness, or of giving him the right to collect all of it, but the result merely is that if proceedings are instituted, the heir brings them partly in his own name and partly in the capacity of agent; or, where an action is brought against him, he is sued partly in his own name and partly as agent. Although the creditors are fully empowered to bring suit against each individual heir; the latter still have a perfect right to substitute in their places such parties as the order of the court indicates should sustain the burden of the action.

4Ulpianus, On the Edict, Book XIX. Therefore everything except pecuniary claims are included in this proceeding. But if a pecuniary claim is bequeathed to one of several heirs, the said heir can obtain it by a suit for partition of the estate. 1Noxious drugs and poisons are embraced in this action; but the judge ought by no means to interfere in matters of this description, for it is his duty to perform the functions of a good and innocent man. He should act in the same manner with reference to books which it is improper to read (for instance, those treating of magic and similar subjects); all of these, however, should be immediately destroyed. 2Moreover, where anything has been acquired by peculation or sacrilege, or by violence, theft, or aggression, it shall not be divided. 3The judge should order the will to be placed in the hands of him who is heir to the greater portion of the estate, or to be deposited in a temple. Labeo says that where the estate is sold, a copy of the will should be deposited, and that the heir should furnish a copy, but he himself ought to keep the original will or deposit it in the temple.

5Gaius, On the Provincial Edict, Book VII. Where any inheritable obligations are included in the property of the estate, the judge should take care that they remain in the possession of the party who is heir to the largest share; the others are entitled to copies which must be verified, and a bond shall be executed by the said heir to the effect that the original documents will be produced when occasion requires this to be done. Where all the heirs are entitled to equal shares, and no agreement is made between them with reference to the party with whom the instruments are to be left, they must cast lots, or a friend should be chosen by common consent or by vote with whom they may be deposited, or they must be placed for safe keeping in some consecrated temple.

6Ulpianus, On the Edict, Book XIX. The settlement of the matter by submitting it to competition, so that the party who makes the highest bid shall be entitled to possession of the obligations, belonging to the estate, is not approved by either Pomponius, or by myself.

7Venuleius, Stipulations, Book VII. If an heir, in an instance where a co-heir was added under a condition, or is in the hands of the enemy, should assert that he himself is the heir, and having brought an action should gain it, and afterwards the condition upon which the inheritance of the other heir depended is fulfilled, or the latter returns by postliminium; ought the other heir to share with him the advantages of his victory? He is undoubtedly entitled to an action to enforce judgment for the entire amount. In this case the co-heir should be granted his choice, that is to say, he must either be given a share of the estate or he must have the power to institute proceedings, for he is one who became an heir, or returned to the city, after his co-heir had been successful. The same rule must be observed where a posthumous child is born. These parties are not to blame on account of their silence, since they only obtained a right to the estate after their co-heir had won his case.

8Ulpianus, On the Edict, Book XIX. Pomponius says that where accounts are bequeathed as a preferred legacy to one of several heirs, they must not be delivered to him before his co-heirs have taken copies of the same. For, he says, suppose a slave who is a steward was bequeathed, he should not be delivered until he has rendered his accounts. We should consider whether a bond ought not to be executed providing that whenever the accounts are required, or the said steward bequeathed, they shall be produced; as it is frequently necessary that the original accounts and the steward himself should be produced in court for the explanation of matters which subsequently arise and in which the knowledge of the steward is involved; and it is necessary that a bond should be furnished the co-heir in this matter by the heir aforesaid. 1Pomponius also states that pigeons which are accustomed to leave the pigeon-house are included in the action for the partition of an estate, because they are our property as long as they have the custom of returning to us; and therefore if anyone should seize them, we are entitled to an action for theft. The same rule applies to bees, because they are part of our property. 2Moreover, where one of our cattle is carried off by wild beasts, Pomponius thinks that if it escapes from said beasts it is to be included in the action for the partition of an estate; for he says it is the better opinion that, where anything is carried off by a wolf or any other wild beast, it does not cease to be ours so long as it is not devoured.

9Paulus, On the Edict, Book XXIII. This action also includes property which the heirs have acquired by usucaption, in instances where it was delivered to the deceased, and also property which was delivered to the heirs, and which the deceased had purchased.

10Ulpianus, On the Edict, Book XIX. Also real property which belongs to our patrimony as well as land held by perpetual lease, or such as relates merely to the surface. Property of which the deceased had possession in good faith, even although it belonged to another, likewise comes under this rule.

11Paulus, On the Edict, Book XXIII. The child of a female slave, if it is born after the estate has been entered upon,

12Ulpianus, On the Edict, Book XIX. And even after issue had been joined can, as Sabinus states, be included in an action for the partition of an estate, and be made the subject of adjudication. 1The same principle will apply where anything is given by a stranger to slaves forming a portion of the assets of an estate. 2Property bequeathed under a condition in the meantime belongs to the heirs, and is therefore included in the action for the partition of an estate, and can be made the subject of adjudication; subject of course, to the restrictions attaching to the same, so that if the condition is fulfilled it will be taken away from the party to whom it was adjudged; or, upon failure of the condition, it will revert to those charged with the bequest. The same rule applies in the case of a slave who is to be liberated on a condition, for in the meantime he belongs to the heirs, but when the condition has been fulfilled he obtains his freedom.

13Papinianus, Questions, Book VII. Disposal of property after issue has been joined is forbidden, but this only applies to such as is voluntary, and not to such as becomes necessary through some former liability and originates in some legal requirement.

14Ulpianus, On the Edict, Book XIX. But where the right of usucaption has begun to run before issue is joined in favor of a party who is not an heir, and is subsequently completed, this removes the property from the case. 1The question arises whether an usufruct is embraced in the action; as, for example, where an usufruct was reserved and the land left to others than the heir:

15Paulus, On the Edict, Book XXIII. Or where an usufruct was bequeathed to a slave belonging to the estate; as an usufruct cannot depart from the party in interest without being lost.

16Ulpianus, On the Edict, Book XIX. I think that it is part of the duty of the judge that, if the heirs should wish to relinquish their common ownership of the usufruct, he should accede to their wishes after causing them to give security to one another. 1Julianus says that where a Court adjudges the land to one heir and the usufruct of the same to another, the usufruct does not become common property. 2An usufruct can be adjudged from a certain time, or until a certain time, or for alternate years. 3Land which a river adds by alluvium to an estate after issue is joined is also included in an action of this kind. 4Where, however, an act has been committed maliciously or negligently by one of the heirs whose effect is to diminish the value of the usufruct, Pomponius says that this likewise comes within the scope of the action; for everything which an heir maliciously or negligently does to the damage of the estate will be considered in all actions for partition of the same, provided always that he commits the act in the capacity of heir. Therefore, if one of the heirs deprived the testator of money during his lifetime, this will not be included in the action for partition of the estate, because he was not yet an heir; but where he acted as an heir, even though the party interested should be entitled to some other action, nevertheless, as Julianus states, he is liable to a suit for partition of the estate. 5Finally, he says that if any one of the heirs should destroy accounts belonging to the estate or falsify them, he will be liable under the Lex Aquilia for destroying the same, and he will also be liable to an action for partition of the estate. 6Moreover, where a slave who belongs to an estate steals the property of one of the heirs, Ofilius says that an action for partition of the estate will lie, as well as one for the partition of property held in common, but an action for theft cannot be brought; and hence if the heir brings an action for partition of the estate he will obtain a judgment by which the slave will be given to him, or the damages assessed, that is to say simple damages will be granted him.

17Gaius, On the Provincial Edict, Book VII. Where an injury is committed by one of the heirs, it is proper to state that simple damages should be considered in the action for partition of the estate.

18Ulpianus, On the Edict, Book XIX. In accordance with these rules, Julianus says that where there are several heirs, and a slave is left to one of them, in general terms, with the right of selection, and the remaining heirs allege that Stichus has falsified the will or defaced it, and they make this statement in order to avoid a slave being chosen; and then, after he has been chosen an action is brought to recover him, they can, if they are sued, avail themselves of an exception on the ground of malicious fraud and subject the slave to torture. 1The question arises whether in an action for the partition of an estate the heirs have a right to use torture with reference to the death of the testator, or to that of his wife and children; and Pomponius very properly says that these things have no reference whatever to the division of the assets of the estate. 2He also says that where anyone provides by will that a slave shall be sold in order to be transported to a distance, it is the duty of the judge to see that the wishes of the deceased shall not be thwarted. But where the testator ordered that a monument should be erected, an action for the partition of an estate can be brought to compel this to be done. He suggests, however, that since it is to the interest of the heirs—as they will have a right in the monument—any one of them can institute proceedings in express terms to have a monument erected. 3Where one of the heirs incurs expenses in good faith, he can collect interest from a co-heir from the time of his default, in accordance with a Rescript of the Emperors Severus and Antoninus. 4Celsus also very appropriately adds that a co-heir, even if he does not make payment himself, nevertheless, is entitled to an action for partition of the estate to compel his co-heir to pay his share; as, otherwise, the creditor will not relinquish a certain piece of property unless he is paid in full. 5Where the son of a family was his father’s heir to a share of the estate and was sued by creditors for his peculium, he being prepared to pay all that was due, he can, by means of an exception on the ground of malicious fraud, compel the creditors to assign their rights of action to him; and he is, in addition, entitled to an action for the partition of an estate against his co-heirs. 6Where one of the heirs has paid a legacy to a party who is directed by the court to take possession for the purpose of preserving legacies; Papinianus thinks, and his opinion is correct, that he is entitled to an action for the partition of the estate against his co-heirs; because the legatee would not otherwise give up the possession which he had once obtained, it being equivalent to security, until the entire legacy was paid to him. 7Moreover, if anyone should pay a debt to Titius to avoid the sale of a pledge, Neratius states that he can institute proceedings for partition of the estate.

19Gaius, On the Provincial Edict, Book VII. Again, on the other hand, the judge ought to provide in like manner that, where one of the heirs has pecuniarily profited by the property of the estate, or has entered into a stipulation to its disadvantage, he shall not be the only one to be benefited. The judge can accomplish this by either causing accounts to be rendered by the different heirs, or by causing them to give security to one another by means of which the profits and losses will be equally divided between them.

20Ulpianus, On the Edict, Book XIX. Where a married daughter who was obliged to bring her dowry into the common fund, through an error of her co-heirs gave a bond that she would pay them in proportion to their shares whatever she recovered from her husband; Papinianus says that, notwithstanding this, the arbiter in the action for partition must decide that even if she herself should die while the marriage existed the dowry must be contributed; for ignorance of the co-heirs can not change the rules which govern legal proceedings. 1Where the son of a family has become liable to an obligation by order of his father, he must reserve the amount out of the assets to pay the debt; and, moreover, if he has expended money on property belonging to his father, the same rule will apply, and if the action is de peculio he will reserve the peculium for the same purpose; and this our Emperor stated in the Rescript. 2In addition to this, where the son of a family is appointed heir, he can reserve the dowry of his wife; nor is this unreasonable, since he must sustain the pecuniary burdens of matrimony. Therefore, he can retain the entire dowry, and must furnish security that he will defend his co-heirs who may be sued on the stipulation. The same rule applies where another party gave the dowry and entered into the stipulation. This is applicable not only to the dowry of his own wife, but also to that of his son’s wife, since this also has reference to the expenses of matrimony for which he is responsible: because he is required to be liable for the expenses of his son and daughter-in-law. Marcellus says that the son must retain the dowry, not only where it was given to his father but also where it was given to himself, as his son; to the extent that it was given to him as being included in his peculium, or where it was expended for the benefit of his father. 3Where a father divides his property among his sons without any writing, and distributes the burden of his debts among them in proportion to what they possess; Papinianus says that this should not be considered a simple gift, but rather a division of property under a last will. It is clear, he says, that if the creditors bring suit against said heirs in proportion to their shares in the estate, and one of them refuses to abide by what was agreed upon, an action can be brought against him on special grounds, alleging that they made an exchange under a certain agreement; of course if all the property was divided. 4The action for the partition of an estate cannot be brought more than once, unless proper cause is shown; because if any property is left undivided, an action can be brought for its distribution. 5Papinianus says that if one of the heirs is required to pay a debt without this being provided for by way of a legacy; then the heir will be forced to assume payment by the judge presiding in the action for partition of the estate, but not for a greater amount than three quarters of his share, so that he may have one quarter undiminished; and therefore he must provide security to protect his co-heirs. 6He also says that if a son is liable for expenses which he has incurred on account of a public office that his father consented for him to administer, and is then appointed heir to a share of the estate, he can reserve the amount which he owes, because this was one of his father’s debts; but where he administered any offices after the death of his father, the heirs of the latter will not be liable for any obligations incurred with reference to said offices. 7Neratius, however, gave it as his opinion that where a man who had several sons consented that one of them should undertake the office of the functionary who has charge of arranging and regulating public games, and, before he perform the duties of the office, his father should die, after having appointed all his sons his heirs; the question arises whether the said son could, by an action for partition of the estate recover what he had expended in the matter; and he answered he could not recover it by any action. This opinion is not accepted, and very justly, for the expense should be included in the action for partition of the estate. 8Papinianus also says that if a husband orders one of his heirs to assume the burden of paying the dowry, which is included in a stipulation, and his widow brings suit for her dowry against both heirs, the heir who was ordered to assume the burden must defend his coheir in the action. But where both heirs are charged with the payment of legacies instead of the dowry, and the widow elects to receive the dowry, the legacies are retained by said heirs, but this must not be for the benefit of the co-heir who is released from payment of the debt; that is to say, the co-heir who assumed the burden of the debt, should, by order of the court, obtain the legacy; and this is true unless the testator provided otherwise. 9He also says that where a slave who is to be liberated on a condition pays money out of his peculium to one of several co-heirs, for the purpose of fulfilling the condition, it will not be included in this action, and should not be subject to contribution.

21Paulus, On the Edict, Book XXIII. The same rule applies in the case of an action brought for the partition of property held in common.

22Ulpianus, On the Edict, Book XIX. Moreover, Labeo says that if one of the heirs digs up any treasure which the testator left, he will be liable to an action for partition, just as if he had divided the treasure with a stranger who was aware of the fact. 1The judge in an action for the partition of an estate can adjudge the same property to several parties only where the right to have one thing was left to several persons; (or where, as Pomponius says, the necessity existed that the shares should be adjudged to several persons); or where the judge assigns a certain part of the property to each of the co-heirs; he can, however, adjudge the property to one heir after it has been bid for by all. 2Moreover, no one doubts that he can adjudge land that has been divided in accordance with the distribution which has already taken place. 3Again, when he makes these adjudications he can impose a servitude so as to make one tract which he assigned serve another; and if he absolutely adjudges a tract to one heir, he cannot, in assigning another, impose a servitude upon the first one. 4An action for the partition of an estate has reference to two matters; that is to say, the property, and delivery of the same, these being personal actions. 5Papinianus criticizes Marcellus for his opinion concerning property held by the enemy, because he does not think that transfers of property of this kind are included in the action for the partition of an estate. For how can there be any impediment to an action for the transfer of property when the very property itself is included,

23Paulus, On the Edict, Book XXIII. On account of the hope of postliminium? Of course a bond should be given, because the party might not return; unless there was only an estimate made of an event that was uncertain.

24Ulpianus, On the Edict, Book XIX. Where, however, property has ceased to be in existence, the question of transfer may still arise; and I agree with Papinianus. 1The action for partition applies to the possessors of the property of an estate, and also to a party to whom an estate has been restored in accordance with the Trebellian Decree of the Senate, and to other prætorian successors.

25Paulus, On the Edict, Book XXIII. The heirs of a person who died in the hands of the enemy can bring this suit. 1Where a soldier makes one person an heir to his castrensian property and another an heir to the remainder of his estate, there is no ground for an action for partition; since the property will be divided between the heirs according to the Imperial Constitution, just as a suit for the partition of an estate cannot be brought where there is no corporeal property, but the assets all consist of claims. 2With reference to the point as to whether a party is entitled to undertake the defence in an action for partition, it makes no difference whether he has possession of the estate or not. 3Where several estates are held in common by different persons under different titles, a single action in partition can be brought. 4Where the Titian estate is held in common by you and me, and that of the estate of Seius is held by you and Titius and myself, Pomponius says that one action can be brought to which all three persons will be parties. 5Moreover, where several estates are held by us in common, we can proceed by an action for partition with reference to one of them alone. 6Where a testator holds property in common with a stranger, or bequeathed to anyone a portion of his property; or his heir, before joinder of issue in an action for partition, alienated his own share; it is the duty of the judge to order that the share which was the property of the testator should be transferred to some one. 7Where a co-heir has possession of property as a purchaser, or, for instance, has received it as a gift; Pomponius denies that it can be included in an action for partition of the estate. 8He also says if you and I become the heirs of Titius, and you bring an action against Sempronius for a portion of a tract of land all of which you say is included in the estate, and you are defeated; and I then purchase the same share from Sempronius and it is transferred to me, and you bring an action for partition, this will not only not include what I am in possession of as heir, but will not even embrace what I hold as purchaser; for, as it was evident by the former decree that the entire tract of land was not included in the estate, how could it be included in a suit for the partition of the latter? 9It is doubtful whether a stipulation, the terms of which give each heir a right of action for the entire amount, is included in a suit of this kind; as for instance, where a party dies after having stipulated for a right of way, a path or a driveway, for the reason that a stipulation of this kind according to the Law of the Twelve Tables is not permitted to be divided, because this cannot be done. The better opinion, however, is that it is not included in the action, but that all the heirs have a right to bring suit for the entire amount; and if the right of way is not furnished, the decision against the defendant should be for a sum of money in proportion to the share of the plaintiff in the estate. 10On the other hand, where a person who promises a right of way dies after having appointed several heirs, the obligation is not divided; and there is no doubt that it continues to exist, since a party can promise a right of way who has no land. Therefore, since each individual heir is liable for the whole, it is the duty of the judge to require bonds to be furnished, so that if any one of the heirs should be sued and pay the damages assessed by the Court, he can recover a portion of the amount from the others. 11The same rule applies where a testator bequeaths a right of way. 12In the case of a different stipulation also, where a testator promised that nothing should be done by him or by his heir to prevent the other party from walking or driving, since, if one co-heir should prevent this a suit for the entire amount can be brought under the stipulation, the interests of the co-heir must be protected to prevent the act of one of them being prejudicial to the others. 13The same rule of law applies to a sum of money promised by a testator, if it was promised under a penalty; for although this obligation may, according to the Law of the Twelve Tables, be divided; still, for one party to pay his share will not in any way contribute to the avoidance of the penalty, yet, if the money has not been paid, or is not due, recourse must be had to a bond, so that provision may be made for the indemnity of the others by the party who is to blame for all the money not being paid; or each one must give security that he will make good a part to whoever pays the whole amount; or where one of the heirs pays the entire sum promised by the testator in order to prevent the penalty from attaching, he can recover from his co-heirs their shares of the same in an action for partition. 14The same rule is observed in the redemption of pledges, for unless a tender is made of the entire amount which is due, the creditor can legally sell the pledge. 15Where one of several co-heirs defends an hereditary slave in a noxal action, and tenders the amount of estimated damages, where this is expedient, he can by this action recover a part of what was paid. The same rule applies where one co-heir gives security with reference to legacies, to prevent the legatees from being placed in possession. And, generally speaking, where measures cannot be taken for a division, if one party should act under the force of necessity, there will be ground for an action in partition. 16A co-heir is responsible not only for malice but also for negligence committed with reference to the assets of an estate, since we do not contract with the co-heir but happen upon him accidentally; still, a co-heir is not obliged to be accountable for as much diligence as the careful head of a family would exercise, as he had good reason for acting on account of his own share; and therefore he would not be entitled to an action on the ground of business transacted, hence he must therefore employ the same diligence which he would display in his own affairs. It is the same where property is bequeathed to two legatees; for it was not their consent but the circumstances of the case which united them in ownership. 17Where a slave is bequeathed in indefinite terms and the legatee afterwards dies, and one of the heirs of said legatee, by not giving his consent, prevents the legacy from being paid, he who caused the hindrance shall be compelled, by means of this action, to pay to the others whatever the interest of each amounts to. The same rule applies where, on the other hand, one of the heirs at whose charge a slave has been bequeathed in general terms, being such a one as they themselves might select, is unwilling to consent that a slave should be delivered whom it would be beneficial to all to have thus disposed of, and, in consequence, the heirs are sued by the legatee and compelled to pay, by way of damages, a larger sum than the slave is worth. 18Moreover, a man is liable on account of negligence who, after he had entered upon an estate before others, suffered servitudes attached to lands belonging to the estate to be lost by want of use. 19Where a judgment is rendered against a son who was defending his father in a suit, and he pays the amount of the judgment either during the lifetime of his father or after his death; it can very properly be stated that he has a right to bring suit for recovery against his coheir in an action for partition. 20A judge who presides in an action for partition of an estate should leave nothing undivided. 21He must also provide that security be given to those to whom he awards the estate against recovery of the property by eviction. 22When money which is not left in the house is bequeathed to be taken before division, whether the co-heirs should pay the entire amount, or only what is in proportion to their shares in the estate; just as if the money had been left among the remaining property of the estate is a question with reference to which some doubt exists; but the better opinion is that what must be paid is the amount that would be paid if the money had been found.

26Gaius, On the Provincial Edict, Book VII. It is part of the duty of the judge to order one or more things belonging to the estate to be sold, and the proceeds of the sale to be paid to any person to whom said money was bequeathed.

27Paulus, On the Edict, Book XXIII. In this action judgment must be rendered against every party, or all must be discharged from liability; hence, if the decision is omitted with reference to any one whomsoever, what the judge does with reference to the others will not be valid; because a decision cannot be valid with respect to one part of the question at issue, and void with respect to another.

28Gaius, On the Provincial Edict, Book VII. Where a testator bequeaths property to be taken before division, which he has already pledged to a creditor; it is in the province of the judge to redeem it out of the common fund of the estate, and see that he to whom it was bequeathed in this way shall have it.

29Ad Dig. 10,2,29Windscheid: Lehrbuch des Pandektenrechts, 7. Aufl. 1891, Bd. I, § 233a, Note 1; Bd. I, § 237, Note 17.Paulus, On the Edict, Book IV. Where property was given to the deceased by way of pledge, it must be said to be included in the action for partition of the estate; but he to whom it is awarded should be required to pay his co-heir for the same in proportion to his share of the estate in an action for partition; but he need not give security to his co-heir that he shall be indemnified with reference to the party who pledged the property; for the reason that the case will be the same as if an hypothecarian or Servian Action had been brought, and the estimated amount had been tendered; so that the party who made the tender may be protected by an exception against the owner bringing suit to recover the property. Again, on the other hand, if the heir to whom the pledge was adjudged desires to restore the whole, he should be heard, even though the debtor be unwilling. The same rule does not apply where the creditor purchases the other portion of the property pledged, because adjudication by the court is necessary, but the purchase is voluntary; unless the objection should be made that the creditor bid for the property too eagerly. The reason why this is taken into account is because what the creditor did must be considered as if the debtor had done it through an agent, and whatever necessary expenses the creditor incurred he has a right to recover in an action besides.

30Modestinus, Opinions, Book VI. I hold a tract of land in common with a female minor who is also my co-heir, and in said land remains are buried to which reverence is due from both of us; for the parents of the minor are buried there. Her guardians, however, desire to sell the land, but to this I do not consent, as I prefer to retain possession of my own share, since I cannot purchase it all, and I wish to discharge my duty to the dead in accordance with my own judgment. I ask whether I can legally petition for an arbiter in an action for the partition of said tract of land; or whether the arbiter who is appointed for the partition of an estate can discharge the functions of his office and also divide the said property between us according to the rights of each; the remaining assets of the estate being left out of consideration. Herennius Modestinus answered that there was nothing in what was proposed to hinder the party appointed arbiter in the action for the partition of the estate from including in his duties the matter of dividing the said tract of land; but religious places could not be brought into the action, as the rights with respect to them belong to the individual heirs interested in the entire estate.

31Papinianus, Questions, Book VII. Where a slave who is pledged is redeemed by one of the heirs, then, even if he should afterwards die, the office of the arbiter will, nevertheless, continue to exist; for there is sufficient reason for this on account of the joint ownership which previously existed and would have continued to exist up to this time, if the property had not been destroyed.

32The Same, Opinions, Book II. Property which a father has not divided among his children, after having given them rights of action instead of the division, belongs to said children in proportion to their respective shares in the estate, provided he did not give the property which he did not divide in general terms to one child; or it was not accessory to the property which was given.

33The Same, Opinions, Book VII. Where the father of a family, in devising land to his respective heirs, wished to act the part of an arbiter in the partition; one co-heir will not be compelled to surrender his share unless he obtains in return for the same a share which is free from the incumbrance of the pledge.

34The Same, Opinions, Book VIII. Where a valuation is placed upon slaves by co-heirs at the time of division, it has been held that prices are placed upon them not for the purpose of purchase, but for that of division; hence, if any of them dies while the condition is pending, the loss must be borne by both the heir and the beneficiary.

35The Same, Opinions, Book XII. Pomponius Philadelphus transferred certain tracts of land by way of dowry to a daughter who was under his control, and directed that the income of the same should be paid to his son-in-law. The question arose whether the daughter could retain the property as her own if her father appointed all his children heirs. I answered that she would have good cause to retain possession of the same, since her father wishes the land in question to be given by way of dowry, and that the marriage had continued even after the death of the father; for the case under consideration was that the daughter held possession of the property according to natural law by virtue of the dowry which she was capable of receiving.

36Ad Dig. 10,2,36Windscheid: Lehrbuch des Pandektenrechts, 7. Aufl. 1891, Bd. II, § 414, Note 4.Paulus, Questions, Book II. I, being under the impression that you were my co-heir, although this was not true, brought an action for partition against you, and adjudications were made and orders issued by the Court, to make payment to both of us. I ask whether, when the truth of the facts is ascertained, a personal action will lie in favor of each of us, or one to recover the property; also whether one rule is to be adopted with reference to a party who is an heir, and another with reference to one which is not. I answered that where a person is heir to an entire estate and, thinking that Titius is his co-heir, joins issue with him in an action in partition, and a decision directing payment is rendered, he makes payment; then, since he did this in compliance with the decision of the judge, he cannot bring an action to recover the money. You, however, seem to hold that no action in partition can exist except between coheirs; but although the action is not legal, still, it is sufficient to prevent the suit to recover what the party believed he was obliged to pay. But, if neither of the parties was an heir, yet joined issue in an action for partition just as if they were heirs, the same rule for recovering the property which we previously stated applies to one of them must be said is applicable to both. It is evident that, if they divided the property without application to the court, it may be stated that the heir who thought the other party was his co-heir has a right of action for the transfer of the property delivered to the latter; for it cannot be held that there was any compromise between them since he believed him to be his co-heir.

37Ad Dig. 10,2,37Windscheid: Lehrbuch des Pandektenrechts, 7. Aufl. 1891, Bd. III, § 608, Note 32.Scævola, Questions, Book XII. A party who brings an action for the partition of an estate does not admit that his adversary is his co-heir.

38Paulus, Opinions, Book III. Lucius and Titia, who were brother and sister, having been emancipated by their father, when grown up had curators appointed for them, and the latter furnished them individually with money which was common property, having been obtained from the income of an estate. They subsequently divided the entire estate between them, and, after the division, Titia, the sister, instituted proceedings against her brother alleging that he had received more than she had; while, in fact, Lucius had not received more than his share, but even less than half the property. I ask whether Titia had a right of action against her brother? Paulus answered that: “In accordance with the statement of the case, if Lucius did not receive more from the income of the property held in common than he was entitled to on account of his share in the estate, his sister has no right of action against him.” He gave the same answer in a case where it was alleged that a brother had received a larger amount for maintenance from the Prætor than his sister, but still not more than half.

39Scævola, Opinions, Book I. Where a person was appointed heir to a share of an estate with reference to which an action had been brought against the heirs because they did not avenge the death of the testator, he gained his case, and the co-heir then brought suit to recover his share from the other heir, but refused to pay his allotment of the expense incurred in the defence of the other suit. The question arose whether he would be barred by an exception on the ground of fraud? I answered that if greater expenses had been incurred by reason of the defence which he had made for the benefit of the said co-heir himself, this expense must be taken into consideration; but if the other party did not plead an exception on the ground of fraud, he could bring suit for the recovery of part of the expenses. 1A man who died intestate divided all his land and other property among his children by means of codicils, in such a way that he left a great deal more to his son than to his daughter. The question arose whether the sister had a right to bring her dowry into the common fund for the benefit of the brother? I answered that, according to the statement of facts, if the testator left nothing undivided, the better opinion was that the right to bring the dowry into the common fund was removed by the wish of the testator. 2A testator granted freedom to a slave, who was fifteen years of age, when he should reach the age of thirty; and also indicated that he desired that there should be given him from the day of his death, as long as the slave lived, ten denarii for his food, and twenty-five denarii for his clothes. Stichus died before the day when he was to become free arrived, and the question arose whether the legacy relating to food and clothing was valid; and whether, if it was not valid, the heir who had paid it could recover it from his co-heir with whom the slave had lived? I answered that if the money had not been due, but if what had been given had been expended for food, it could not be recovered. 3A son who, after the death of his father, contracted debts due to the Government, cannot charge his brother with said debts in proportion to his share in the estate of his father, if the brothers are not partners in all their property; even though they held the estate of their father in common, and their father had discharged the duty of a magistrate where he resided in behalf of his other son. 4A testator appointed his two sons his heirs, and before distribution bequeathed certain slaves to each of them; among said slaves a certain Stephanus was left to one of the sons together with his peculium. The said slave, having been manumitted during the lifetime of the testator, died, and afterwards the father died. The question then arose whether what Stephanus had in his peculium before he was manumitted belonged to both sons, or only to the one to whom he had been previously bequeathed together with his peculium? I answered that, according to the statement of the case, it belonged to both. 5A father who divided his property between his sons and confirmed the division by his will, provided that any debt which either of them had contracted or should contract, he alone should be liable for the same. One of his sons having afterwards borrowed money, the father appeared, and with his consent the land which had been transferred to the said son was pledged for the debt, and after the death of the father the same son who was in possession of the land paid the interest, I ask whether, if the creditor should sell the land which was pledged, anything should be paid to this son by a co-heir if an action for partition of the estate should be brought? I answered that, in accordance with the facts stated, he would not be required to pay anything.

40Gaius, Trusts, Book II. Where anyone who is appointed heir to an entire estate is asked to deliver a certain portion of it to me, for instance, half; an equitable action for partition can properly be brought between us.

41Paulus, Decrees, Book I. A certain woman appealed from the decision of a judge because, as she stated, in an action for the partition of an estate between herself and the co-heir, he had divided not only the property but the freedmen also, as well as an obligation for maintenance directed by the testator to be furnished to certain freedmen; which, she alleged was something that he had no right to do. On the other hand, it was stated that the parties had agreed to the division, and had paid sums for maintenance in accordance with the terms of the division for many years. It was decided that they must abide by the provision for maintenance; but the judge added that the division of freedmen was of no effect.

42Pomponius, On Sabinus, Book VI. Where a legacy is bequeathed to one of several heirs in the following terms, “Let him retain what he owes me;” it is the duty the judge has in an action for partition to prevent the co-heirs from exacting payment from the heir aforesaid; but, where one heir is ordered to retain what another owes, it is the duty of the judge to require the rights of action to be assigned to him in proportion to the share of a co-heir in the estate.

43Ulpianus, On Sabinus, Book XXX. One person can petition for the appointment of an arbiter in an action for the partition of an estate; for it is clear that a single heir can appeal to a judge, and therefore one heir can petition for an arbiter, even though the others are present and do not give their consent.

44Paulus, On Sabinus, Book VI. Proceedings may be instituted for the partition of land held in common by co-heirs in such a way that only the property which is held in common and matters relating to it which are pending in court shall be included; but with reference to all other things the right of action for the partition of the estate remains unimpaired. 1Where an action for the partition of an estate or for the division of property held in common has been tried; the Prætor will sustain any decisions made by the Court by granting exceptions or actions. 2Where co-heirs have sold property while one of their number was absent, and in the transaction have managed fraudulently to obtain more than they were entitled to, they can be compelled to indemnify the party who was absent, either by an action for partition or by a suit for the estate. 3Any of the profits which an heir takes from the funds of an estate before it has been entered upon, Julianus says he will not have to surrender in an action for partition; unless when he took the same he knew that the land belonged to the estate. 4Parties who bring actions for the partition of an estate, or for the division of common property, or for the establishment of boundaries are both plaintiffs and defendants; and therefore they must swear that they have not instituted proceedings for the purpose of annoyance, and do not make a defence with the intention of causing unnecessary trouble. 5Where one of several co-heirs, on account of a stipulation relating to the estate, makes a payment through his own act, he cannot recover the amount from his co-heir; as, for instance, where the deceased promised that no malicious fraud should be committed by himself or by his heir, and that nothing should be done either by himself or by his heir which would prevent anyone from walking or driving over a road; and, in fact, even where the remaining heirs became liable through the act of one, for the reason that the condition of a stipulation relating to the estate is fulfilled, they will be entitled to an action for the partition of the estate against the party through whom the stipulation became operative. 6Where anyone stipulates that Titius and his heir shall ratify some act of his, and Titius dies leaving several heirs, he alone will be liable who neglected ratification; and, among the heirs of the party stipulating, he alone who has been sued can institute proceedings to enforce the liability. 7Where an usufruct is bequeathed to a widow “until her dowry shall be paid to her;” then, Cassius says that whatever is paid to her by way of dowry on behalf of a co-heir can be recovered by order of the arbiter in an action for partition, and the co-heir can be made to pay his share of the dowry; and this opinion is correct. 8Where two co-heirs have been charged to erect a statue, and one of them neglects to do so but the other erects it; Julianus says that it is not unjust to grant an action in partition, so that a part of the expenses may be paid, the amount of which would be approved by a good citizen.

45Pomponius, On Sabinus, Book XIII. Where you contend that part of an estate is owned by yourself and me in common, which I, for some other reason, declare to be mine alone; this is not included in the action for the partition of an estate. 1Fraud committed by a slave of the heir does not come within the terms of the action for the partition of an estate, unless there was negligence on the part of the owner of the slave in that he employed a slave which was not trustworthy to take care of the common property.

46Paulus, On Sabinus, Book VII. Where a husband is appointed heir by his father under a certain condition, in the meantime the right of action for the dowry of the wife is in abeyance; for it is evident that if a divorce should take place after the death of her father-in-law although at a time when the condition of the appointment of the party as heir was still pending, it must be held that there is ground for the retention of the dowry; because, when the father dies, some things pass to the sons even before they become heirs, such as matters relating to marriage, children and guardianship. Therefore, a son who bore the expenses of matrimony after his father’s death can take the dowry before division; and this was held by our Scævola.

47Pomponius, On Sabinus, Book XXI. In an action for the partition of an estate or for the division of property held in common, if, while the case is pending, a controversy arises concerning a right attaching to the land, it is established that all those with reference to whom the arbiter has been appointed can both bring suit and give notice of a new structure, each one in proportion to his respective interest in the property; and when an award is made by the arbiter, if the entire tract of land is adjudged to one party, security must be furnished that whatever is recovered by means of the actions must be delivered, and whatever expenses have been incurred on their account must be paid. And if, while the matter was in court, no proceedings were instituted with reference to the said land, the unimpaired right of action shall belong to him to whom the entire tract has been awarded, or in proportion to the share for which the award was made. 1Moreover, where there is any movable property which can be included in said actions, and in the meantime it should be stolen, proceedings for theft can be brought by the parties at whose risk the said property was.

48Paulus, On Sabinus, Book XII. Where a suit has been brought either for the partition of an estate, for the division of property held in common, or for the establishment of boundaries, and one of the parties should die leaving several heirs; the case cannot be separated into parts, but all the heirs must either accept it as it is, or they must appoint some one as agent against whom suit may be brought as the representative of all of them.

49Ulpianus, Disputations, Book II. A certain man was appointed heir to a share of an estate and having been ordered by the Prætor to bury the testator, he sold a slave who had been granted his freedom by the will, and promised the purchaser double damages in case of eviction, and suit having been brought against him on account of this guarantee, he paid the money. The question arose whether he could, in an action for the partition of the estate, recover the amount he lost on account of his agreement to pay double the value of the slave? Let us see, in the first place, whether he should have given security for double the amount? And it seems to me that he should not have done so; for those only are required to give security for double the amount who make sales voluntarily; but where the party who makes the sale is performing a duty, he ought not to be compelled to promise any more than where the one who makes a sale was appointed by the Prætor to execute a judgment; and even then the party is not in such a condition that he can be compelled to do what those who sell at their own will are forced to do; for there is a great deal of difference between him who discharges a duty and him who sells voluntarily. Hence in the first place the party was not obliged to make a stipulation for double the value, but the Prætor should hold that the purchaser has a right of action on the sale against the actual heir, if the property sold should be recovered by reason of a superior title. If, however, the heir made a mistake and furnished the bond, and the slave acquired his freedom, suit may be brought on the stipulation; and if this should be done, it is only just that a prætorian action should be granted against the co-heir, (as the action for the partition of an estate will not lie) so as to prevent him from sustaining the loss. And, indeed, for anyone to be able to bring the action for the partition of an estate, he must not only be an heir, but he must also sue or be sued because of some act which he performed, or failed to perform, after he became an heir; otherwise the action for the partition of an estate will not lie. Hence, if anyone should perform any act with reference to the estate before he knew that he was an heir, there will be no ground for an action in partition, because the party is not held to have acted with the intention of an heir; and therefore where anyone performs an act before the estate has been entered upon, for instance, if he buried the testator, he will not be entitled to an action for partition, but if he did this after the estate was entered upon, we hold, in consequence, that he can recover by an action in partition the expenses which he incurred through the funeral.

50The Same, Opinions, Book VI. Justice does not permit anything which a father furnished his emancipated son, who was absent for the purpose of pursuing his studies, to be included in the share of the property of the deceased which passed to the said son; where it is proved that the father furnished said property not as a loan, but because he was induced to do so by paternal affection.

51Julianus, Digest, Book VIII. Where land is delivered to a father-in-law as dowry, and the said father-in-law appoints his son-in-law an heir to any portion of his estate, the land should be reserved before division, in compliance with the award of an arbiter in an action for partition; so that the condition of the son will be the same as it would have been if the dowry had been bequeathed in order to be retained. Wherefore, any profits acquired after issue has been joined must be delivered to him, after an account of the expenses has been taken; but such as have been acquired before issue was joined, belong equally to all the heirs. An account must also be taken of the expenses in this case also, because no instance can occur which will prevent this deduction. 1If I wish to bring an action for an estate against you, and you wish to bring one for the partition of the estate against me, the desires of both of us should be gratified where proper cause is shown; or if I am in possession of the entire estate and acknowledge that you are the heir to one half of the same, but I wish to relinquish the joint ownership, I should obtain an action for the partition of the estate, because the latter cannot be divided among us in any other way. Moreover, if you have good ground for bringing a suit for the estate rather than one in partition, then you must be permitted to bring a suit for the estate, since some matters are included in an action of this kind which are not included in one in partition; for instance, if I am indebted to the estate you will not recover what I owed to the deceased by an action in partition, but you will do so by an action for the estate.

52The Same, On Urseius Ferox, Book II. Mævius, who appointed us heirs, held property in common with Attius, and if we should bring suit in partition against Attius, and the property was adjudged to us, Proculus says it will be included in an action for partition of the estate. 1Where a slave is left his freedom and appointed heir, he can be compelled by an action for the partition of the estate to pay to the coheir anything which he retains in his hands arising from the accounts that he kept for the testator. 2An arbiter whom you and I selected in an action in partition desired to award certain property to me and some other to you, and held that, with reference to these matters, each of us should be directed to make payment to the other; and the question arose whether he could not set off one account against the other, and direct the party who owed the larger account to pay only the excess? It was decided that the arbiter could do this. 3Where an action is brought for the partition of an estate or for the division of property held in common, the entire property must be appraised, and not the shares in the different things.

53Ulpianus, Opinions, Book II. Where an emancipated son lent a sum of money to be paid to his father, it will afterwards be included in the estate of the father only in case the latter had a right of action against his son for the said sum of money.

54Neratius, Parchments, Book III. You and I were both joint heirs to the estate of Lucius Titius, and I sold my share of a tract of land belonging to the estate, and then an action for the partition of the estate was brought between us. In this instance, the share which was mine will not be included in the case, since when it was sold it was no longer a part of the estate; nor will your share be taken into consideration, because even if it remains in its former legal condition and belongs to the estate; still, by the sale of my share the ownership of it ceased to be common. Whether one heir does not sell his share or several do not do so, is of no importance; provided a certain portion which has been alienated by one of the heirs and has ceased to form part of the estate.

55Ulpianus, On the Edict, Book II. Where an action for the partition of an estate, or for the division of property held in common is brought, and it seems almost impossible to make the division; the judge can render a decision in favor of one party, and adjudge the entire property to him.

56Paulus, On the Edict, Book XXIII. Profits which have been due for some time are also included not only in an action for the establishment of boundaries, but also in one for the partition of an estate.

57Papinianus, Opinions, Book II. Even after an arbiter has been accepted, brothers who divide the common estate by consent perform the duties demanded by natural affection, and the division should not be revoked; even though the arbiter did not render a decision after the controversy was ended, unless relief should be granted on account of want of age.