Paulus, Questions, Book VI. Where doubtful questions arise, it is better to decide in favor of the dowry.

Paulus, Questions, Book VI. A wife gave a sum of money to her husband, and the latter purchased either personal or real property with this money which had been given him, and, as he was not solvent, and the property was still in existence, I ask, if the wife should desire to revoke the donation, whether she can legally proceed by a personal action for recovery; for the husband, although he is insolvent, seems to have profited by the donation, since the property acquired with the money of his wife was still in his possession. I answered that it could not be denied that he had profited by the donation, for we do not inquire what property he may have released from liability from debt by means of it, but what property of his wife he has in his possession. For he does not differ from one to whom her property has been given, except in the mere fact that in this instance, the property still belongs to the wife, and she can recover it by means of a direct action. The condition of the husband will be worse if suit is brought against him for the sum that the property is worth, and not for the amount in excess of the gift, than if he should be sued in an action on dowry. There is nothing, however, to prevent the woman from also bringing an equitable real action for the recovery of her own property.

Ad Dig. 24,3,45Windscheid: Lehrbuch des Pandektenrechts, 7. Aufl. 1891, Bd. II, § 316, Note 6.The Same, Questions, Book VI. Gaius Seius, the maternal grandfather of Seia, who was under paternal control, gave a certain sum of money by way of dowry to Lucius Titius, her husband, and inserted in the dotal instrument the following agreement and stipulation: “If a divorce should take place between Lucius Titius, the husband, and Seia, without her fault, all the dowry shall be returned to Seia, his wife, or to Gaius Seius, her maternal grandfather.” I ask, if Seius, the maternal grandfather, should die immediately after making this agreement, and Seia should subsequently, without being to blame, be divorced during the lifetime of her father, under whose control she was, in favor of whom an action would lie under the agreement in the stipulation, the heir of the maternal grandfather, or of his granddaughter. I answered that the stipulation would seem to be void, so far as the granddaughter personally was concerned, as the maternal grandfather made the stipulation in her favor; for, since this is true, a right of action would be held to lie in favor of the heir of the stipulator, whenever the woman was divorced. It must be said, however, that the dowry can be paid to Seia, even though no action will lie directly in her favor; just as if her grandfather had stipulated that it should be given to him, or to someone else. The granddaughter ought, however, on account of the agreement of her grandfather, to be permitted to bring an equitable action to prevent her from being defrauded of the benefit of the dowry; or recourse to this proceeding should be had because of the favor conceded to marriage, and especially on account of the affection existing between the parties.

Paulus, Questions, Book VI. A personal action for the recovery of such property will also lie in favor of the owner of the same, but he is allowed to choose whether he will bring this, or a real action.

Paulus, Questions, Book VI. Where a wife steals property belonging to her husband from a person to whom the former lent it, the latter will be entitled to an action for theft against her, although her husband can not bring such an action.

Paulus, Questions, Book VI. Two persons are named Titius, father and son; Titius is appointed guardian, but it does not appear which one the testator meant. I ask what is the law in the case? The answer was, that he should be appointed whom the testator had in his mind. If his intention is not apparent the law is not defective, but the evidence is lacking. Therefore neither of them can act as guardian.

Paulus, Questions, Book VI. If a man, while administering three guardianships, should be appointed by different decrees guardian of two other wards, he can be excused; and if, before he states the reasons why he should be excused, one of the wards whose guardianship he was administering should die, from this time his excuse will not be available, and he will, at once, be bound by the first decree; which is just as if the fourth guardianship was substituted for the third, since he was guardian in accordance with law before he was excused. Therefore he can be excused from the guardianship of him who now occupies the fourth place, and as he was not excused, he must necessarily also undertake the responsibilities of the other, that is, the third guardianship. It raises no difficulty in my mind, if anyone should say that the guardian is not required to administer this guardianship, for the matter to be considered is whether its administration is terminated by the death of the ward. Moreover, I think that he will also be liable for the guardianship, if he assumes the responsibility of failing to administer it. 1This can also occur where a guardian is appointed by two different wills, at the time when he is already administering three other guardianships; and, in this instance, it is not the time when the wills were opened which should be considered, where the question arises which guardianship was first conferred, but the time when the estate was entered upon, or when the condition upon which the appointment depended was carried out. 2This difference also exists between the guardianships of which we have treated, where the third and fourth appointments are made, although the guardian is first held liable for the administration of the fourth, because it is this one, that is to say, the fourth, which he is ordered to administer, and he must bear the responsibility of the other from the day upon which he was appointed. 3I think that a guardian who has caused his ward to reject the estate of his father should be retained in the fourth guardianship, the former one being, as it were, rejected. 4Moreover, I think that the Prætor will act in accordance with law, where he holds that only one guardianship will be sufficient; if it is so extensive and involves so many business requirements that it is equal to several. Hence, brothers who are entitled to equal shares of an estate should not be considered as being subject to several guardianships; or even if the wards are not brothers, where they have the same patrimony, and a single account of the administration must be rendered by the guardian, the same rule will apply. On the other hand, where there are two distinct estates belonging to brothers, two guardianships must be established; for, as I have already stated, it is not the number of wards, but the difficulty of drawing up and rendering the accounts that must be taken into consideration.

The Same, Questions, Book VI. When any doubt arises, it is better to decide in favor of the dowry. 1It is no new principle that whatever has once been decided to be valid, will stand; although a case may arise in which a beginning could not have been made. 2Whenever either natural reason, or doubt of the law is opposed by equity, moderation must be observed in rendering a decision.