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p520 Familiae Erciscundae Actio

Article by George Long, M.A., Fellow of Trinity College
on p520 of

William Smith, D.C.L., LL.D.:
A Dictionary of Greek and Roman Antiquities, John Murray, London, 1875.

FAMI′LIAE ERCISCUNDAE A′CTIO. Every heres, who had full power of disposition over his property, 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 a judex. For this purpose every heres had against each of his co-heredes an actio familiae erciscundae, which, like the actiones communi dividundo, and finium regundorum, was of the class of Mixtae Actiones, or, as they were sometimes called, Duplicia Judicia, because, as in the familiae erciscundae judicium, each heres was both plaintiff and defendant (actor and reus); though he who brought the actio and claimed a judicium (ad judicium provocavit) was properly the actor. A heres, either ex testamento or ab intesto, might bring this action. All the heredes were liable to the bonorum collatio [Bonorum Collatio], that is, bound to allow, in taking the account of the property, what they had received from the testator in his lifetime, as part of their share of the hereditas, at least so far as they had been enriched by such donations.

This action was given by the Twelve Tables. The word Familia here signifies "property," as explained in the previous article, and is equivalent to hereditas.

The meaning and origin of the verb erc-iscere, or herc-iscere, have been a subject of some dispute. It is, however, certain that the word means "division." (Dig. 10 tit. 2; Cic. De Orat. I.56, Pro Caecina, c7; Apul. Met. IX p210, Bipont.)


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