De dote praelegata
(Concerning the Preferred Legacy of a Dowry.)
1 Ulpianus libro nono decimo ad Sabinum. Cum dos relegatur, verum est id dotis legato inesse, quod actione de dote inerat. 1Et ideo si inter virum et uxorem convenerat, ut morte viri soluto matrimonio filio communi interveniente dos apud mariti heredem remaneret, et maritus decedens dotem relegaverit, stari pacto non debet ob hoc quod dos relegata est. verum et citra relegationem hoc probari debet: nam quod est admissum posse deteriorem condicionem dotis fieri intervenientibus liberis, totiens locum habet, quotiens ipsa in matrimonio decedit vel divortium intervenit. 2Et verum est commodum in dote relegata esse repraesentationis, quamvis annua die dos praestaretur: 3Est et illud, quod ob res donatas hodie post senatus consultum nulla fit exactio, si modo voluntatem non mutavit testator. 4Impensae autem ipso iure dotem minuunt. sed quod diximus ipso iure dotem impensis minui, non ad singula corpora, sed ad universitatem erit referendum. 5Adeo autem dotis actionem continet dotis relegatio, ut, si vivus eam uxori (scilicet quibus licet casibus) solverit, cesset legatum. 6Sed et si mancipia fuerint in dote non aestimata et haec demortua sint, legatum dotis in his evanescit. 7Sed et si dotem promiserit mulier neque dederit et decedens maritus uxori dotem praelegaverit, mulier nihil amplius quam liberationem habebit: nam et si quis ita legaverit ‘centum quae in arca habeo’ aut ‘quae ille apud me deposuit’, si nulla sint, nihil deberi constat, quia nulla corpora sint. 8Si quis uxori fundum Titianum his verbis legasset: ‘is enim fundus propter illam ad me pervenit’, omnimodo debetur fundus: nam quidquid demonstratae rei additur satis demonstratae, frustra est. 9Celsus libro vicesimo digestorum scribit, si socer nurui dotem relegavit, si quidem ius actionis de dote voluit relegare, nullius momenti esse legatum, quippe nupta est: sed si voluit eam recipere dotalem pecuniam, inquit, utile erit legatum. si tamen haec dotem receperit, nihilo minus maritus dotis persecutionem habebit, sive heres institutus esset, familiae herciscundae iudicio, sive non, utili actione. ego puto, quoniam non hoc voluit socer, ut bis dotem heres praestet, mulierem agentem ex testamento cavere debere defensu iri heredem adversus maritum. ergo et maritus idem debebit cavere adversus mulierem defensu iri, si prior agat. 10Per contrarium apud Iulianum libro trigesimo septimo quaeritur, si socer filio suo exheredato dotem nurus legasset: et ait agi quidem cum marito exheredato de dote non posse, verumtamen ipsum dotem persecuturum ex causa legati: sed non alias eum legatum consecuturum, quam si caverit heredes adversus mulierem defensu iri. et differentiam facit inter eum, cui dos relegata est, et orcinum libertum, cui peculium legatum est: namque eum de peculio posse conveniri ait, heredem non posse, quia peculium desiit penes se habere: at dotis actio nihilo minus competit, etsi dotem desierit habere. 11Idem Iulianus quaerit, si dotem marito relegaverit socer, an dote soluta mulieri legatum mariti extinguatur. et dicit extingui, quia nihil esset iam, quod marito posset praestari. 12Idem quaerit, si dos alii legata esset eamque rogatus sit mulieri restituere, an lex Falcidia in legato locum haberet. et dicit habere: sed quod minus est in fideicommisso, mulierem dotis actione consecuturam. ego quaero, an commoda repraesentationis in hoc legato sic observentur atque si dos ipsi mulieri fuisset relegata. et puto habere. 13Idem Iulianus quaerit, si mulieri dos sit relegata eaque rogata dotem restituere, an Falcidia locum habeat. et negat habere, quoniam fideicommissum quoque negat valere. quod si praeterea quid uxori legatum sit, putat ex residuo fideicommissum praestari: quod utique habita ratione Falcidiae mulieri praestabitur. sed et marito ex parte heredi instituto a socero dote praelegata legatum dotis Falcidiam passurum, videlicet quia adhuc constante matrimonio indebita dos videtur relegata, verum quod Falcidia reccidit, in familiae herciscundae iudicio maritum praecepturum, quemadmodum totam dotem praeciperet, si non esset relegata. 14Mela scripsit, si fundus in dote sit et specialiter sit legatus, mox generaliter dos relegata, non bis, sed semel deberi fundum. 15Ibidem Mela coniungit, si fundus in dote fuit locatus a marito ad certum tempus, uxorem non alias fundum ex relegatione consequi, quam si caverit se passuram colonum frui, dummodo ipsa pensiones percipiat.
1 Ulpianus, On Sabinus, Book XIX. Where a dowry is bequeathed, it is certain that everything is included in it which is embraced in the dotal action. 1Therefore, where an agreement has been made between husband and wife, that, if the marriage should be dissolved by the death of the husband, and a son should be born, the dowry shall remain in the hands of the heir of the husband, and the latter, at his death, shall bequeath the dowry, the agreement will not stand, because the dowry was bequeathed. It should, however, be executed if the dowry was not bequeathed; for the established rule that the condition of the dowry cannot become worse through the intervention of children becomes applicable whenever the woman dies during marriage, or a divorce takes place. 2It is true that there is the advantage of payment where a dowry is bequeathed, as otherwise it would only be payable annually. 3There is also the advantage that, according to the Decree of the Senate, no demand can be made for property donated, provided the testator did not change his mind. 4Moreover, expenses which have been incurred diminish the dowry to that extent by operation of law, and what we have said concerning this does not refer to separate articles, but to the entire dowry. 5The bequest of a dowry includes also the dotal action, so that if the husband, while living, restored it to his wife, as is permitted in certain cases, the legacy will be annulled. 6But if slaves, whose value had not been appraised, should be included in the dowry, and they should be dead, the legacy of the dowry, so far as they are concerned, will be void. 7If the wife promised a dowry, but did not give it, and the husband, at his death, should leave it as a preferred legacy to his wife; she will be entitled to nothing more than a release from liability. For if anyone should make a bequest as follows: “I bequeath a hundred aurei, which I have in my chest,” or “Which So-and-So has deposited with me;” and there should be no such sum, it is established that nothing will be due, because the property in question was not in existence. 8If anyone should bequeath the Titian Estate to his wife, as follows, “Since the said land has come into my hands through her;” the land will undoubtedly be due; for where anything is added for the purpose of pointing out something which has already been designated, it is superfluous. 9Celsus in the Twentieth Book of the Digest says that if a father-in-law bequeaths her dowry to his daughter-in-law, and he intends to leave a right of action with reference to the dowry, the legacy will be of no force or effect, as she is already married; but if he wished her to receive the money which she brought as dowry, he says that the legacy will be valid. When, however, she has received her dowry, the husband will, nevertheless, have the right to claim it by means of a prætorian action, whether an heir has been appointed in a suit for partition, or not. I think that, as the father-in-law did not intend his heir to pay the dowry twice, if the woman should bring an action under the will, she should furnish him security to defend the heir against the husband. Therefore, the husband also should furnish security to defend him against his wife, if he should be the first to institute proceedings. 10On the other hand, it is stated by Julianus in the Thirty-seventh Book, that if a father-in-law should bequeath the dowry of his daughter-in-law to his disinherited son, while she cannot bring the dotal action against her disinherited husband, he himself can claim the dowry, on the ground of a legacy; but he cannot obtain it unless he furnishes security to defend the heir against the woman. He makes this difference between the person to whom the dowry is bequeathed, and a freedman liberated by the will, and to whom his peculium was bequeathed; for he says that the heir cannot be sued on account of the peculium for the reason that it is no longer in his possession, but the dotal action can, nevertheless, be brought against him, even though he has ceased to have control of the dowry. 11Julianus also asks, where the father-in-law bequeathed the dowry to the husband, and it has been paid to the wife, whether the legacy of the husband will be extinguished. He says that it will be extinguished, because there is nothing more which the heir can pay to the husband. 12He also asks, in case the dowry should be bequeathed to someone else who is charged to return it to the woman, whether the Falcidian Law will apply to the legacy. He says that it will apply, but that she can by the dotal action recover any deficiency which the trust may have suffered on this account. I ask whether the benefit of payment should be taken into consideration in this legacy, as if the dowry had been paid directly to the wife herself. I think that this ought to be done. 13Julianus also asks, if a dowry is bequeathed to a wife, and she is asked to pay it to another, whether the Falcidian Law will apply, and he says that it will not, as the trust is invalid. He thinks, however, that where anything, in addition, is bequeathed to the wife, the residue of the trust should be discharged and therefore what is paid her will be subject to the operation of the Falcidian Law. Where, however, the husband is appointed heir to a portion of the father-in-law’s estate, and the dowry is bequeathed by the latter as a preferred legacy, the bequest of the dowry will be subject to the Falcidian Law, for the reason that, as the marriage still exists, the dowry is considered not to be due to the woman. But whatever has been deducted through the operation of the Falcidian Law can be recovered by the husband in an action for partition, just as he could recover the entire dowry if it had not been bequeathed to his wife. 14Mela says that if a tract of land forming part of the dowry has been especially bequeathed, and after the dowry has been bequeathed in general terms, the land will be due not twice, but only once. 15Mela adds, in the same place, that where land forming a part of a dowry has been leased by the husband for a certain time, the wife cannot obtain it under the bequest, unless she furnishes security to permit the tenant to enjoy it, provided she herself receives the rent.
2 Ulpianus libro quinto disputationum. Cum quis uxori suae dotem relegat fideique commissum ab ea relinquit, hoc fideicommissum ex commodo, quod ex relegatione mulier sentit, aestimabitur, et ita Celsus quoque libro vicesimo digestorum scripsit. quod si necessariae fuerunt impensae, quae ipso iure dotem minuunt, amplius dici potest, si tanta quantitas dotis, quam maritus accepit, ei relegata est, oportere dici etiam eam quantitatem posse fideicommissum erogare, quae ipso iure dotem minuit: esse enim mulierem legatariam nemo est qui dubitet. sed et si non dos, sed pro dote aliquid uxori fuerit legatum, adhuc quasi dos relegata accipitur. hoc amplius Iulianus scribsit, etsi non fuerit adiectum pro dote esse legatum, hoc tamen animo relictum, adhuc eius esse condicionis. uxor igitur si rogetur vel dotem vel quod pro dote legatum est vel quod in vicem dotis ei adscriptum est restituere, non cogetur nisi eatenus, quatenus diximus, restituere: et ideo heres instituta rogataque quantitatem hereditatis restituere id demum restituet, quod quantitatem dotis excedit idque quod ex repraesentationis commodo sentit. nam et si quis, cum a nuru dotem accepisset, filium suum heredem instituerit eumque rogaverit, quidquid ad eum ex hereditate pervenisset, restituere, mox morte uxoris dotem fuerit lucratus, id non restituet quod ex dote percepit, quia matrimonii causa id lucratus est, non ex patris iudicio. 1Mulier dotem promisit quadringentorum et dedit fundos duos in ducenta, praeterea nomina debitorum in residua ducenta: mox maritus eius decedens pro dote fundos ei duos non eos, quos in dotem acceperat, reliquit et praeterea duos illos dotales, quos aestimatos acceperat, reliquit fideique eius commisit, ut, quidquid ad se ex hereditate eius pervenisset, id restitueret Seio cum moreretur: quaerebatur, quantum esset in fideicommisso muliere defuncta. dicebam uxorem hanc, quae rogata est, quidquid ad se pervenerit ex testamento, restituere, in ea esse condicione, ut id demum restituere rogetur, quod deducta dotis quantitate ad eam pervenit: dotem enim recepisse eam magis quam accepisse, salvo eo, quod ex commodo repraesentationis ab ea fideicommitti potuit. proinde id quidem, quod pro dote maritus ei reliquit, non cogetur restituere, nisi plus fuit in eo quam in quantitate dotis: residuum vero, quod praeterea illi relictum est, cum fructibus cogetur restituere. habebit igitur praecipuam dotem cum suis fructibus: id vero, quod extrinsecus ei relictum est, cum fructibus, qui ad eam pervenerint, restituet.
2 Ulpianus, Disputations, Book V. Where a husband bequeaths a dowry to his wife, and charges her with a trust, the trust shall be estimated in proportion to the benefit which the woman will receive from immediate payment of her dowry. Celsus also says the same in the Twentieth Book of the Digest. But if certain necessary expenses were incurred, which, by operation of law, diminished the dowry, and all of it which the husband received is bequeathed to her, it should be held that the entire amount of the expense which diminished the dowry by law must be deducted from the trust, for no one can doubt that the woman is the legatee. If, however, not the dowry, but something in lieu thereof was bequeathed to the wife, this will be understood to be the same as if the dowry was the subject of the bequest. Julianus goes still farther, for he says that even if it should not be stated that the property was bequeathed in lieu of the dowry, it still will be considered to have been left with that intention. Therefore, if the wife was requested to give up either the dowry or something which was left to her in lieu of it, she will not be compelled to do so, except to the extent which we have stated. Hence if she was appointed heir, and charged with the transfer of a certain portion of the estate, she would only be compelled to deliver what was in excess of her dowry, and the value of the benefit which he received from immediate payment. For if anyone who has received a dowry from his daughter-in-law should appoint his son his heir, and ask him to deliver to someone else all of the estate which might come into his hands, and he should afterwards obtain the benefit of the dowry through the death of his wife, he will not be compelled to give up the dowry which he had received, for the reason that he profited by it on account of his marriage, and not through the will of his father. 1A woman promised a dowry of four hundred aurei, and gave two tracts of land for two hundred of it, and afterwards gave the other two hundred in notes of debtors. Her husband, dying afterwards, left to her, instead of her dowry, two tracts of land which were not the same ones which he had received as part of her dowry; and, in addition to them, the two dotal tracts of land whose value had been appraised; and he charged her by a trust that she would, at the time of her death, deliver to Seius all of his estate which might come into her hands. The question arose, what would be the amount of the trust after the death of the woman? I said that the wife, who was charged to deliver everything which came into her hands under the will, was in a position to be asked to transfer only what she had received after the deduction of the amount of her dowry; for she was entitled to the dowry rather because it was due to her, than as having received it as a legacy, with the exception of what could be claimed under the trust as constituting the benefit resulting from immediate payment. Hence, she will not be compelled to deliver the land which her husband left to her in lieu of her dowry, unless it was of greater value or extent than that which she had brought as such. She, however, will be obliged to give up any excess, together with the profits over and above what had been left to her. Therefore he will be entitled to the dowry with its profits, and anything which was left to her outside of this she must surrender, along with the profits which she obtained from the same.
3 Iulianus libro trigesimo quarto digestorum. Qui ita legat uxori suae: ‘Titiae amplius quam dotem aureos tot heres meus damnas esto dare’, manifestus est dotem quoque relegasse.
3 Julianus, Digest, Book XXXIV. Where anyone bequeaths a legacy to his wife, as follows: “Let my heir give so many aurei to Titia in addition to her dowry,” it is clear that he also intended to leave her the dowry.
4 Africanus libro quinto quaestionum. Cum volgari modo dies legatorum profertur, nihil eam rem ad dotis relegationem pertinere ait, quia suum diem habeat.
4 Africanus, Questions, Book V. Where certain dates are fixed for the payment of legacies, as is customary, Africanus says that this does not refer to the legacy of a dowry, because it has its own time of payment.
5 Marcianus libro tertio regularum. Dote relegata non est heres audiendus, si velit ob donationes in mulierem factas solutionem differre vel ob impensas alias, quam quae ipso iure dotem minuunt: aliud est enim minorem esse factam dotem, quod per necessarias impensas accidit, aliud pignoris nomine retineri dotem ob ea, quae mulierem invicem praestare aequum est.
5 Marcianus, Rules, Book III. Where a dowry has been bequeathed, the heir should not be heard, if he wishes to defer payment of it to the woman on account of donations which have been made to her by her husband, or because of other expenses than those which, by operation of law, diminish a dowry, for it is one thing for a dowry to be diminished by necessary expenses, and another where it is retained because of a pledge; since it is but just that the woman should contribute her share of the indebtedness for which it was given as security.
6 Labeo libro secundo posteriorum a Iavoleno epitomatorum. Cum scriptum esset: ‘quae pecunia propter uxorem meam ad me venit quinquaginta, tantundem pro ea dote heres meus dato’, quamvis quadraginta dotis fuissent, tamen quinquaginta debere Alfenus Varus Servium respondisse scribit, quia proposita summa quinquaginta adiecta sit. 1Item ei, quae dotem nullam habebat, vir sic legaverat: ‘quanta pecunia dotis nomine’ et reliqua, ‘pro ea quinquaginta heres dato’. deberi ei legatum Ofilius Cascellius, item et Servii auditores rettulerunt: perinde habendum esse ac si servus alicui mortuus aut pro eo centum legata essent. quod verum est, quia his verbis non dos ipsa, sed pro dote pecunia legata videtur.
6 Labeo, On the Last Epitomes by Javolenus, Book II. Where the following was inserted into a will, “Let my heir give to my wife the sum of fifty aurei, which came into my hands through her and as much more in lieu of her dowry,” Alfenus Verus says that Servius was of the opinion that, although the dowry was only composed of forty aurei, fifty were, nevertheless, due, because an additional sum of fifty was added. 1Likewise, where a husband made a bequest to his wife, who had not brought him any dowry, in the following terms, “Let my heir give the sum of fifty aurei, instead of the money which I received from my wife by way of dowry,” Ofilius, Cascellius, and the pupils of Servius assert that the legacy is due to her; and hence it must be considered similar to the case where a slave, who is dead, has been bequeathed to someone, or a hundred aurei has been left in his stead. This is correct, because by these words not the dowry itself, but money in lieu of it is held to have been bequeathed.
7 Papinianus libro octavo decimo quaestionum. Pater dotem a nuru acceptam filio exheredato legavit: heres patris opposita doli exceptione non ante solvere legatum cogendus est, quam ei cautum fuerit de indemnitate soluto matrimonio. 1Sed si, priusquam legatum filio solveretur, mulier dotem suam reciperavit, frustra filius de legato aget. 2Sed si lex Falcidia locum in legato dotis adversus filium exheredatum habuerit et mulier solutionem ratam fecerit, propter eam quantitatem, quam heres retinuerit, utilis actio dotis ei dabitur. quod si ratum non habeat, defendi quidem debebit heres a viro, qui se defensurum promisit: sed si totam litem vir solus subierit, actio iudicati, si cautum non erit, pro ea quantitate, quae iure Falcidiae petenda est, adversus heredem dabitur. 3Sed si, priusquam legatum filio solveretur, mulier divertit, quamquam ipsa nondum praecipere dotem possit, non ideo tamen actio filii differtur: quia tunc isdem diebus filio solvi dotem responsum est, cum patri pro parte heres exstitit et ad praeceptionem dotis soluto matrimonio, postquam heres exstitit, admissus est. 4Si forte per errorem cautio defensionis omissa sit ex causa fideicommissi filius dotem acceperit, ut indebitum fideicommissum non repeteretur: cautiones enim praestandae necessitas solutionem moratur, non indebitum facit quod fuit debitum: sed non erit iniquum heredi subveniri. 5Quid ergo si patris heres solvendo non sit? nonne iuste mulieri dabitur adversus virum utilis actio dotis? cui dos perire non debet, quia non interposuit per errorem heres cautionem.
7 Papinianus, Questions, Book XVIII. A father bequeathed to his disinherited son the dowry which he had received from his daughter-in-law. If the heir of the father should file an exception on the ground of bad faith, he will not be compelled to pay the legacy, unless security is given him that he will be indemnified in case the marriage is dissolved. 1But if, before the legacy has been paid to the son, the woman should recover her dowry, the son will in vain bring an action to recover the legacy. 2If, however, the Falcidian Law is applicable to the legacy of the dowry against the disinherited son, and the woman should have ratified the payment, she will be granted a dotal equitable action, based on the amount of the legacy which the heir retained. But if she should not ratify it, the heir must be defended against her by the husband, who promised that he would do so, but if the latter should alone be compelled to undertake the defence, an action on the judgment for the amount claimed under the Falcidian Law will be granted against the heir, if security is not furnished. 3But if the wife should obtain a divorce from the son before the legacy is paid, although she cannot yet secure her dowry, the action of the son will, nevertheless, not be deferred for that reason; because when it was decided that the dowry should be paid to him at that time, it was also held that this should not be done unless he became the heir to a portion of his father’s estate, and that, after the marriage was dissolved, and he had accepted the estate, would have been admitted to receive the dowry before distribution. 4If security for the defence of the heir should have been neglected through mistake, and the son should receive the dowry under a trust, the trust cannot be claimed again as not having been due; for the necessity of furnishing security causes delay, and does not render that not due, which actually was due. Hence it will not be inequitable to grant relief to the heir. 5But what if the heir of the father was not solvent? Could not a prætorian dotal action legally be granted to the woman against her husband; for her dowry should not be lost merely because the heir failed to give security through mistake?
8 Idem libro septimo responsorum. Vir uxori, quae dotem in mancipiis habebat, pecuniam pro dote legaverat: vivo viro mancipiis mortuis uxor post virum vita decessit. ad heredem eius actio legati recte transmittitur, quoniam mariti voluntas servanda est.
8 The Same, Opinions, Book VII. A man bequeathed a sum of money, in lieu of her dowry, to his wife, who had brought him her dowry in slaves. The slaves having died during the lifetime of the husband, his wife died after he did. The right of action to recover the legacy will pass by law to her heir, as the will of the husband must be executed.
9 Idem libro octavo responsorum. ‘Uxori meae fundum Cornelianum et quae nuptura optulit aestimata in speciebus restitui volo’. respondi non aestimatum praedium in dotem datum exceptum non videri, sed universa dote praelegata rerum aestimatarum pretium non relictum, verum ipsas res, quales invenirentur.
9 The Same, Opinions, Book VIII. “I desire that the Cornelian Estate, and whatever property my wife brought me at the time of her marriage, and which was appraised, be returned to her in kind.” I held that the said tract of land which had formed part of the dowry, but had not been appraised, did not appear to have been excepted, but that the entire dowry had been bequeathed, and that not the value of the appraised property, but the property itself had been left in the condition in which it might be found.
10 Scaevola libro octavo quaestionum. Si Seiae pro dote centum fundus legatus sit idemque Maevio: quod Maevio Falcidia aufert, pro eo quasi concursus non fuerit, mulier plus vindicet, quia amplius sit in dote mulieris.
10 Scævola, Questions, Book VIII. If a tract of land of the value of a hundred aurei should be left to Seia, in lieu of her dowry, and the same should be devised to Mævius, the woman can recover, in addition, the amount which the Falcidian Law will take from Mævius, because they are not, so to speak, joint legatees of the same, as there is more included in the dowry of the woman than in the remainder of the land.
11 Paulus libro septimo responsorum. Seia cum nuberet Lucio Titio, dedit dotis nomine centum aureos et adhibuit Quintum Mucium, qui nihil numeravit, sed dotem stipulatus est, si morte mulieris solutum fuerit matrimonium. Seia moriens testamento suo ita cavit: ‘Lucio Titio marito meo, cui maximas gratias ago, dari volo super dotem, quam ei dedi, tot aureos’. quaero, cum instituit Lucium Titium convenire Quintus Mucius ex stipulatu actione, an repellere eum maritus possit ex verbis testamenti. respondit, si Quintus Mucius mandante Seia non donationis causa stipulatus est, heredibus mulieris eum teneri et ideo Quintum Mucium exceptione repellendum esse. quod si donationis causa Seia stipulari permississet, videri eum in eum casum, qui morte mulieris exstitit mortis causa stipulatum: et ideo fidei eius committi potuisse in eum casum dicendum fore.
11 Paulus, Opinions, Book VII. Seia, when she married Lucius Titius, gave him a hundred aurei by way of dowry, and called in Quintus Mucius, who did not pay anything, but stipulated for the return of the dowry, if the marriage should be dissolved by the death of the wife. Seia, at the time of her death, provided as follows by her will: “I wish the sum of so many aurei to be given to my husband, Lucius Titius, to whom I am under many obligations, in addition to what I have given him as my dowry.” I ask, if when Quintus Mucius instituted proceedings against Lucius Titius by an action founded on the stipulation, could the husband defeat him by setting out the terms of the will? The answer was that, if Quintus Mucius made the stipulation under the direction of Seia, and not for the purpose of making a donation, he will be liable to the heirs of the woman, and therefore Quintus Mucius will be barred by an exception. If, however, Seia permitted him to make the stipulation as a donation, he will be in the same position as one who had stipulated mortis causa, and therefore it must be said that in this instance he could have been charged with the execution of the trust.
12 Scaevola libro tertio responsorum. Qui dotem in pecunia numerata et aestimatis rebus acceperat, uxori ita legavit: ‘Seiae uxori meae, si omnes res, quae tabulis dotalibus contineantur, heredi meo exhibuerit et tradiderit, summam dotis, quam mihi pro ea pater eius intulit, dari volo: hoc amplius denarios decem’. quaesitum est, cum res in dotem datae plures ipso usu finitae essent nec moriente marito fuerant, an quasi sub impossibili condicione legatum datum debeatur. respondi videri condicioni paritum, si quod ex rebus in dotem datis supererat, in potestatem heredis pervenit.
12 Scævola, Opinions, Book III. Where a husband who had received a dowry from his wife in money, and other property which had been appraised, made a bequest to her as follows: “If my wife, Seia, should be able to show to my heir all the property contained in her dotal contract, and pay to him the amount which her father gave me for her, by way of dowry, I wish ten denarii over and above this sum to be paid to her.” As there was considerable property belonging to the dowry which was worn out by use and which did not exist at the time of the death of the husband, the question arose whether the legacy should be paid under an apparently impossible condition. I answered that the condition would seem to have been complied with, if what remained of the property given as dowry had come into the hands of the heir.
13 Labeo libro primo pithanorum a Paulo epitomatorum. Paulus: si filius familias, uxorem cum haberet, dotem ab ea acceperat, deinde pater familias factus dotem ei ut solet legavit: quamvis patri heres non erit, tamen id legatum debebitur.
13 Labeo, Abridgment of Probabilities by Paulus, Book I. Paulus: If a son under paternal control, who had a wife from whom he had received a dowry, should afterwards become the head of a household, and, as is customary, bequeath the dowry to her, the legacy will still be due, even though he did not become the heir of his father.
14 Scaevola libro quinto decimo digestorum. Theopompus testamento facto duas filias et filium aequis partibus instituit heredes et codicillis ita cavit: ‘τὴν θυγατέρα μου Κρισπίναν, ἣν ηὐχόμην ἐκδοῦναι, ᾧ ἂν οἱ φίλοι μου καὶ οἱ συγγενεῖς δοκιμάσωσι, προνοήσει ἐκδοθῆναι Πολλιανὸς εἰδώς μου τὴν γνώμην ἐπὶ τοῖς ἴσοις, ἐφ’ οἷς καὶ τὴν ἀδελφὴν αὐτῆς ἐξέδωκα’. Pollianus a marito puellae iuratus scripsit voluisse patrem eandem quantitatem in dotem accipere etiam minorem filiam, quam maior accepisset. quaero, an eandem summam dotis nomine coheredes extra partem hereditatis minori filiae praestare debeant. respondit eum cuius notio est aestimaturum, ut eadem quantitas ex communi praecipua minori filiae dotis nomine detur.
14 Scævola, Digest, Book XV. Theopompus, having made a will, appointed his two daughters and his son equal heirs to his estate, and inserted the following provision in a codicil: “I wish my daughter, Crispina, to be married to someone of whom my friends and relatives will approve; and Pollianus, who knows my intentions, will provide for her dowry, in proportion to the equal shares of my estate which I have left to her and her sister.” Pollianus, having been sworn at the instance of the husband of the girl, stated that her father had intended the young daughter to receive as much, by way of dowry, as the elder one. I ask whether the co-heirs will be required to give the same sum to the younger daughter, over and above her share of the estate. The answer was that the magistrate, who had jurisdiction of the case, should decide that the same amount, after having been taken from the bulk of the estate, shall be given to the younger daughter, by way of dowry.
15 Gaius libro secundo de legatis ad edictum praetoris. Licet placeat pigneratas res vel in publicum obligatas heredem, qui dare iussus est, liberare debere, tamen si is qui tales res in dotem accepit dotem praelegaverit, non cogetur heres liberare eas, nisi aliud specialiter testator dixerit.
15 Gaius, Concerning Legacies under the Prætorian Edict, Book II. Although it is established that property which the heir is ordered to deliver, and which has been pledged or publicly hypothecated, must be released, still, where a husband has received property of this kind by way of dowry, and bequeaths it, his heir will not be compelled to release it, unless the testator specially desired this to be done.
16 Paulus libro secundo ad Vitellium. Qui dotem a matre uxoris acceperat et stipulanti ei promiserat, testamento uxori dotem legavit. cum quaesitum esset, an uxor dotis summam consequi posset, respondit Scaevola non videri dari uxori, quod necesse sit matri reddi. alias sic respondit non videri, nisi manifeste uxor docuisset eam testantis voluntatem fuisse, ut onerare heredes duplici praestatione dotis vellet.
16 Paulus, On Vitellius, Book II. A certain man received a dowry from the mother of his wife, and, after having entered into a stipulation with her, left the dowry to his wife by his will. The question having arisen whether the wife could recover the amount of the dowry, Scævola was of the opinion that it did not seem to be necessary to return to the mother what had been given to the wife; or in other words, he held that unless the wife could clearly prove that this was the wish of the testator, it did not appear that he intended to burden the heirs with a double payment of the dowry.
17 Scaevola libro tertio responsorum. Uxori ita legavit: ‘uxor mea quidquid ei comparavi et quod mihi dedit e medio sibi sumat’: quaero, an dos praelegata videatur. respondit verbis quae proponerentur videri et de dote legata loqui, nisi aliud testatorem voluisse probaretur. 1‘Titiae uxori meae, quanta pecunia ad me inve stipulationem dotis eius nomine pervenit, quae dos est dotalibus duobus consignatis instrumentis centum aureorum’. quaesitum est, an utramque summam consequi possit. respondit nihil proponi, cur non possit.
17 Scævola, Opinions, Book III. A man made a bequest to his wife as follows: “Let my wife take from the bulk of my estate whatever I have obtained for her use, and what she has given to me.” I ask whether it should be held that a preferred legacy of her dowry had been bequeathed. The answer was that, in accordance with the facts stated, the legacy of the dowry should also be understood to be meant, unless it was proved that the intention of the testator was otherwise. 1“I give to my wife Titia, the money which came into my hands as her dowry, or has been stipulated for as such, which is evidenced by two dotal instruments, duly sealed, and amounts to the sum of a hundred aurei.” The question arose whether the woman can recover both sums. The answer was that there seems to be no reason why she cannot do so.