Ulpianus, On Sabinus, Book XXXI. A profectitious dowry is one derived from either the property or the act of a father, or some other ancestor. 1Hence where an ancestor, or his agent, gives a dowry or orders another to give it, or when anyone who is transacting his business gives it, and the ancestor ratifies his act, this is a profectitious dowry. 2Where anyone who is desirous of making a gift to a father gives the dowry, Marcellus says in the Sixth Book of the Digest that this dowry also comes from the father, and is profectitious, which is correct. 3Moreover, if the curator of an insane person, or of a spendthrift, or of anyone else, gives a dowry, we say that it also is profectitious dowry. 4If, however, we suppose that the Prætor or Governor of a province issues a decree stating how much of the property of a father, who is held in captivity either by the enemy or by robbers, shall be given to his daughter by way of dowry, this also is held to be profectitious. 5Julianus says that a dowry is not profectitious where a father rejects an estate for the purpose of providing a dowry, because the husband of his daughter has been substituted, or where he would be able to claim the estate ab intestato. If, however, the father should reject a legacy in order that it might remain in the hands of his son-in-law, who was the heir, by way of dowry, Julianus holds that this was not derived from his property, because the father did not pay out any money belonging to himself, but merely declined to acquire the legacy. 6Where a father, not in the capacity of a parent, but because he has become surety for another, promises a dowry, and, as surety, is compelled to pay, Neratius says that this dowry is not profectitious, although the father cannot recover from the principal debtor what he has paid. 7But if the father promises the dowry, and provides a surety or another debtor in his behalf, I think that the dowry will be profectitious; for it is sufficient for the father to be liable either to the principal debtor or to the surety. 8Where a son under paternal control borrows money and charges his creditor to give a dowry for his daughter, or if he receives the money and gives it, the dowry is held to be derived, as Neratius says, from the grandfather; inasmuch as the latter will be obliged to endow his granddaughter, for the transaction seems to have been made with reference to the property of the grandfather. 9Julianus states in the Seventeenth Book of the Digest that where anyone gives a certain sum of money to his father, with the understanding that he is to give it to his daughter by way of dowry, this is not a profectitious dowry; for the father is bound to give the money, and if he does not do so, he will be liable to an action for its recovery. He says that this same rule applies to a mother, since, if she gives a sum of money to her husband under the condition that he shall pay it to his son-in-law by way of dowry for his daughter, the wife is not held to have donated the money to her husband; therefore, he says very properly, that this gift is not one of those prohibited by the Civil Law, as she did not give it to her husband in order that he might keep it, but for him to pay it to her son-in-law, that he might expend it for the benefit of her daughter; hence if he should not employ it for that purpose, he will be liable to an action for its recovery. Therefore Julianus says that this dowry is adventitious, and we hold it to be such. 10Where a son under paternal control promises a dowry, and gives it after having become his own master, it is profectitious, for he does not pay the money as a debt of the estate of his father, but as a debt of his own contracted when he was under paternal control, from liability for which he is released through having become the head of a household. 11If a father should give a dowry in behalf of his emancipated daughter, no one doubts that it is none the less profectitious, for not the right of authority, but the title of parent renders a dowry profectitious. This is only true where the father gives the dowry, but if where he owes it to his daughter, and gives it with her consent, the dowry becomes adventitious. 12Papinianus says in the Tenth Book of Questions that where a father, being the curator of his daughter who is her own mistress, constitutes a dowry for her, he will be held to have done so rather as her father than in the capacity of curator. 13Julianus says in the Nineteenth Book of the Digest that an adoptive father has the right to recover a dowry, if he himself bestowed it. 14Where anyone promises a dowry for the daughter of another, and her father becomes the heir of the promisor, Julianus says that a distinction exists if the father becomes the heir and gives the dowry before marriage, and if he does so subsequently. If this took place before marriage, the dowry is held to be profectitious, for he would be able, by serving notice, to recover it; if, however, it occurred after marriage, it would not be profectitious.

Ulpianus, On Sabinus, Book XXXI. Equity demands that the profits of a dowry shall belong to the husband, for, as he sustains the burdens of matrimony, it is but just that he should receive the profits. 1The profits received during marriage do not belong to the dowry, but where they are received before marriage they become part of it; unless there was some other agreement made between the future husband and wife; for then the profits will not be returned, because they are considered to be a donation. 2Where an usufruct is given by way of dowry, let us see whether or not the profits of the same must be returned. Celsus says in the Tenth Book of the Digest that it must be ascertained what the intention of the parties was; and where there was no agreement to the contrary, he thinks that the right of usufruct alone constitutes the dowry, and that the profits derived from it are not included therein. 3Where property is given by way of dowry, I think that it becomes part of the estate of the husband, and that the accession of time derived from his wife should be granted to her husband. Property thus given belongs to the husband, if it is bestowed, by way of dowry during the existence of the marriage. But what if it was given before marriage? If, indeed, the woman gave it with the understanding that it should immediately become his, it will do so. If, however, she gave it under the condition that it would become his when the marriage took place, we can undoubtedly say that it will belong to him when the nuptials are celebrated. Hence, if the marriage should not take place on account of repudiation, and the woman gave the property with the understanding that it should immediately belong to the husband as soon as notice of repudiation is served, she will have a right to recover it. But if she gave it under the condition that it would become his as soon as the marriage was performed, and notice of repudiation is given, she can immediately recover the property. If she brings suit to recover it before notice of repudiation is served, an exception on the ground of bad faith, or in factum, can be pleaded in bar, for suit should not be brought for the recovery of property intended for a dowry.

Ulpianus, On Sabinus, Book XXXI. If I give certain property to Seia, in order that she herself may give it in her own behalf by way of dowry, it becomes hers, even though it should not be bestowed by way of dowry; but she will be liable to an action for its recovery. If I give anything in her behalf before marriage, it makes a difference under what condition I gave it, whether it was to belong to her husband at once, or after the marriage had been performed. If it was given to become his immediately, and notice of repudiation is served, I will have a right to recover it; but if this is not the case, I can claim it on the ground that the property still belongs to me. Wherefore, if the marriage cannot take place on account of some illegal impediment, in the second instance, the property will remain mine. 1Ad Dig. 23,3,9,1Windscheid: Lehrbuch des Pandektenrechts, 7. Aufl. 1891, Bd. I, § 89, Note 6.If I deliver property to anyone to become a dowry after marriage has taken place, and I die before the marriage is celebrated, does the property constitute the dowry if the marriage is afterwards performed? I am in doubt as to whether it will pass to the person to whom it is given, because he who gave it is divested of the ownership, after death, as the donation was pending until the day of the marriage; and when the condition of the marriage is fulfilled, the ownership of the property will have already passed to the heir, and it must be held that he cannot be deprived of the same without his consent. The more equitable opinion is the one in favor of the dowry, and for the heir to be required to consent to the act of the deceased; or, if he should defer his decision, or be absent, or be unwilling, the ownership should be transferred to the husband by operation of law, in order that the woman may not remain without any dowry. 2We must understand that property given on account of a dowry is that which is given as dowry. 3Ad Dig. 23,3,9,3ROHGE, Bd. 14 (1875), Nr. 40, S. 105: Erwerb des Pfandrechts durch Unterbringung der Objecte in dem vom Gläubiger gemietheten Lokale.Again where property is given as what the Greeks call parapherna and the Gauls peculium, let us see whether the right to it at once vests in the husband. I think that if it is given to become his, it at once passes to the husband; and if the marriage should be dissolved, the woman cannot claim it as hers, but should bring a personal action for its recovery, and not institute proceedings by an action on dowry as the Divine Marcus, our Emperor, and his father, stated in a Rescript. It is evident that if a schedule of the property of the wife is given to her husband, as is generally done at Rome, for a wife is accustomed to place in a schedule the property which she is to make use of in the house of her husband, and which she does not give as a dowry, in order that he may sign it, as having received said property, and that she may retain possession of the document which contains a description of what she brought into his house. Let us consider whether this belongs to the husband. I do not think that it does, not for the reason that it is not delivered to him, for what difference will it make whether it is delivered to him or not, if it is brought into his house with his consent; but because I do not believe that it was agreed between husband and wife that the ownership of said property would be transferred to him, but rather as it is certain that, in case of a separation, this cannot be denied; and because frequently the husband assumes responsibility for such articles unless they are left in charge of his wife. Let us see whether, if such articles should not be returned, the woman can bring an action on the ground of property removed, or on deposit, or on mandate. Where the safe-keeping of the effects was entrusted to the husband, she can bring an action on deposit, or mandate; otherwise, an action for property removed will lie, if the husband retains it with the intention of appropriating it, or suit for production can be brought, if he has not attempted to remove the property.

Ulpianus, On Sabinus, Book XXXI. If it should be agreed that the profits of property should be converted into a dowry, will the agreement be valid? Marcellus says in the Eighth Book of the Digest that such an agreement is not valid, for a woman by a contract of this kind almost becomes unendowed. He, however, makes the distinction that if a woman should give a tract of land as dowry, under the condition that her husband shall deliver to her the profits of the same, such an agreement is void; and the same rule applies if she gave an usufruct as dowry under a similar agreement. If, however, a contract should be made with reference to giving the profits, that is to say, that any profits which may be obtained shall compose the dowry, and the land, or the usufruct of the same is delivered in compliance with it, not with the understanding that the profits are to become dotal, but that the husband can collect the profits which will become a part of the dowry; he can be compelled by an action on dowry to deliver said profits. The profits will, therefore, form the dowry, and he can enjoy the interest obtained from them, as well as acquire what is added to the principal. I think that, in both instances, consideration should be paid to the intention with which the dowry was given, so that if the wife gave a large dowry because she wished the income of the same to constitute it, and expected the husband to be content with the interest it might yield; it can be said that the agreement will be valid, for then the dowry is not unprofitable. Suppose, for example, that the husband receives an annual income of forty aurei by way of dowry, while if such an agreement had not been entered into he would have received more than three hundred, would not it be of great advantage to him to obtain so profitable a dowry? And what shall we say if the agreement has been drawn up in such terms that the husband can turn the profits into a dowry, and that the wife must maintain herself and her family, and provide for them, and pay all their expenses? Why can you not hold that an agreement of this kind will be valid?

Ulpianus, On Sabinus, Book XXXI. Moreover, what time should be considered in order to determine whether the parties have profited pecuniarily: should it be the date when issue was joined, or that when judgment was rendered? The time when issue was joined should be taken into consideration, and this our Emperor and his father stated in a Rescript. 1Where a husband gives his wife money for the purchase of perfumes, and she pays it to his creditor, and afterwards purchases perfumes with her own money; Marcellus says in the Seventh Book of the Digest that she will not be held to have profited by the transaction. He also says that if he should give her a dish for the same purpose, and she should keep it, and purchase perfumes with her own money; the husband would not be entitled to an action to recover the dish, because the wife has not become any the more wealthy, as she spent an equal sum for something which was perishable. 2Where a man and his wife give one another the sum of five aurei and the husband keeps his, and the wife spends hers, it was very properly decided that there was a set-off of the two gifts; and this the Divine Hadrian decreed. 3Marcellus also says that if a man should give money to his wife, and she should purchase land with it, an estimate should be made as to how much the woman had profited by the transaction. Hence, if the land was of very little value at present, we must hold, in consequence, that its value at the time issue was joined should be taken into consideration. It is evident that if the land is of great value, only the amount which was paid must be refunded, and not the interest of the price. 4A nice question arises where a woman purchases land for fifteen aurei, and her husband does not pay the entire price but only two-thirds of the same, that is to say, ten aurei; and his wife pays five out of her own money; and at the present time the said land is only worth ten aurei, how much will the husband be entitled to recover? The better opinion is that he should recover two-thirds of ten, and that what is lost of the price should be equally borne by the husband and wife. 5Where a husband alleges that he has increased the value of property which he received as dowry, for the purpose of benefiting his wife, our Emperor and his father stated a remedy for this in a Rescript as follows: “As you say that the price of the property was increased for the purpose of benefiting your wife, the magistrate who has jurisdiction of the matter shall decide that if you refuse a certain proportion of the money, you must return the land itself, after having deducted the reasonable expenses which you have incurred.” It is therefore left to the choice of the husband to deliver whichever he prefers. The same rule of law applies if, on the other hand, the woman makes complaint of a diminution in the value of the property. The principle is the same as that ordinarily followed where property is lent for use after appraisement; as Pomponius states in the Fourth Book of Various Extracts. 6Where a wife purchases from her husband lands which she had received as security for the return of her dowry, and the said purchase is said to have been made for the purpose of benefiting her, the transaction will be void. But our Emperor and his father stated in a Rescript that the obligation of pledge will continue to exist. I give the words of this Rescript in order that it may be established that a bona fide sale made between husband and wife cannot be annulled. “If your husband sold you pledges given to secure your dowry and money which had been loaned him, not for the purpose of benefiting you, and the transaction was concluded in good faith, it will be valid. But if it is shown that this was only done under pretext of making a donation, and consequently the sale will be held to be void, your right to the property pledged will remain unimpaired by public law.” 7Ad Dig. 24,1,7,7Windscheid: Lehrbuch des Pandektenrechts, 7. Aufl. 1891, Bd. II, § 365, Note 4.If a wife buys an article, and her husband pays the purchase money for it, it is sometimes held that the entire property can be recovered from the woman as she has become pecuniarily benefited with reference to the whole of it; just as where a woman purchases property and owes the price of the same, and her husband releases her from the claim of the vendor. For what difference does it make whether he pays her creditor or the vendor? 8A certain man gave a slave to his wife under the condition that she would manumit him within a year. If the woman should not comply with the wish of her husband, does not the Constitution of the Divine Marcus confer freedom upon the slave, whether the husband is still living, or whether he is dead? Papinianus says, as the opinion of Sabinus has been accepted, who thinks that the slave only begins to become the property of the party to whom he was given at the moment when freedom was granted him, that therefore the woman cannot manumit him after the specified time has elapsed, even if she should desire to do so; that the Imperial Constitution is not applicable, nor can the will of the husband render it applicable, since he could manumit his own slave. I also approve this opinion, because neither the vendor nor the donor desires to, or can impose any condition upon himself, but he can do so upon the party who receives the slave. Therefore the ownership remains with him, and the Constitution is not operative. 9A donation made for the purpose of manumission is valid; although this may be done, not with the understanding that freedom shall be granted immediately but within a certain time. Hence, if a husband gives his wife a slave to be manumitted after a specified period, the slave does not become hers until she begins to manumit him, after the expiration of the said period. Wherefore, if he should be manumitted before that time her act will not be valid, for it must be remembered that if anyone gives his wife a slave to be manumitted within a year, and she does not manumit him within the year, but does so afterwards, her act will be void.

Ulpianus, On Sabinus, Book XXXI. It is held that the profits are what remains after deducting the expenses, and Scævola applies this to those incurred by both husband and wife. For if the wife gave her dowry the day before the vintage, and, after the vintage was removed by the husband, he obtains a divorce, Scævola does not think that the profits only of the eleven months should be refunded, but that also the expenses which were incurred should be deducted before dividing the profits. Therefore, if the husband spends anything for this year, the expenses of both parties should be considered. Thus, if an account is taken of the expenses incurred by the woman during several years of marriage, it will be necessary to compute them from the first year, before the land was given by way of dowry. 1Ad Dig. 24,3,7,1Windscheid: Lehrbuch des Pandektenrechts, 7. Aufl. 1891, Bd. II, § 501, Note 8.Papinianus, however, says in the Eleventh Book of Questions that where a divorce takes place, the profits should be divided, not from the day when the property was leased, but that an account should be taken of the preceding time during which the marriage existed. For if the land was given as dowry at the time of the vintage, and the husband leased it to be held from the Kalends of November, and the divorce took place on the last day of the month of January, it is not just for him to be able to retain at the same time the profits of the vintage and the fourth part of the rent for the year when the divorce took place; otherwise, if the divorce was obtained upon the day before the vintage, the husband would retain the entire profits. Hence, if the divorce took place at the end of the month of January, and the marriage had existed for four months, the profits of the vintage and the fourth part of the rent for the present year should be consolidated, and out of this money a third part should be paid to the husband. 2The same rule must also be observed in the opposite case. For if a woman, immediately after the vintage has been gathered, gives a tract of land by way of dowry to her husband, and the latter rents the same land from the Kalends of March, and the divorce takes place on the Kalends of April, the husband can retain not only the twelfth part of the rent, but also a proportionate amount of the rent which will be due for the entire number of months during which the land was held as dowry. 3Moreover, if the crops during the year when the divorce was obtained belonged to the tenant in compliance with the terms of the lease, and the marriage is dissolved before the vintage, the money derived from the crops must be computed with reference to the expected yield of the next vintage. 4It is therefore apparent, from what has been stated, that those profits which the woman collected before she was married should not be included in the division. 5Set-offs can be made on account of donations, as well as because of what may have been appropriated out of such profits as have been collected after the divorce. 6What has been mentioned with reference to a year also applies to the term of six months, where two crops are gathered annually, as is the case where land is irrigated. 7The same rule applies where profits are collected only once in several years, as where trees are cut down. 8Moreover, if the lease of land is of such a character that something in addition to the annual rent must be paid at the end of five years, we must take into account the amount of the excess in proportion to the part of the five years which has elapsed. 9We hold that the same principle applies not only to land but also to cattle, so that the wool of sheep and the increase of flocks must be delivered. For if the husband accepts, by way of dowry, certain ewes about to have young, or which are soon to be sheared, will he be obliged to return nothing if a divorce should take place immediately after the lambs have been born, or the sheep sheared? In this instance, we must take into account the profits for the entire time during which the animals were taken care of, and not merely that when they were collected. 10With reference to a slave, the entire year must be taken into account if his services have been leased for that term, so that they will belong to the husband for the time previous to the divorce, but after it to the wife. 11The same rule also applies to the rents of urban estates as to the crops of farm lands. 12Where a wife gives land to her husband by way of dowry, and he cuts down the trees, if these are understood to be profits, their value in proportion to that part of the year which has elapsed must be refunded. I think, however, that if the trees which were cut down formed a thicket, or were small, they must be classed as crops. Where, however, they were not of this description, the husband should be held liable as having caused a deterioration of the land. But if the trees have been overthrown by the force of a storm, it must be said that their value should be paid to the woman, and that they should not be classed as crops, any more than when a treasure is found it is not reckoned as part of the crop, but half of it should be restored to the wife, just as in the case where a treasure is found on the land of another. 13Ad Dig. 24,3,7,13Windscheid: Lehrbuch des Pandektenrechts, 7. Aufl. 1891, Bd. I, § 144, Note 8.If a husband should find marble quarries upon the land of his wife given by way of dowry, and they render the land more profitable, the marble which has been taken out, but not removed, will belong to the husband, but the expenses he has incurred shall not be made good to him, because the marble is not part of the yield of the land, unless it is of such a character that the stone is renewed, as is the case in certain quarries in Gaul and Asia. 14The yield of chalk pits, however, as well as of mines of gold or silver or any other kind of metal, or of sand pits, is considered to be part of the produce of the land. 15Security is sometimes given to the husband by his wife for the profits, and he retains nothing, if the woman receives the land while the crops are still standing. Sometimes the husband keeps the crops and restores nothing, which occurs where there is no more than he has a right to retain as his share. Sometimes, indeed, he must return the crops, when he has collected more than he is entitled to retain. The same rule applies where proceedings are instituted with reference to the dowry against a father-in-law, or against the heir of either of the joint-owners of the property. 16Pomponius says that whatever has been expended in the cultivation and the planting of the ground is to be considered as expended for the gathering of the crops, as well as whatever has been laid out for the preservation of buildings, or in caring for a sick slave; that is to say, where any profits are obtained from the said building or slave. These expenses, however, cannot be claimed where the husband retains the entire profit for the year, because the expenses should in the first place be provided for out of the income. It is evident that where the husband built a new house which was necessary, or rebuilt the old one which had entirely fallen into ruin without his fault, he will be entitled to present a bill for the expense. In like manner, if he uses a hoe upon the land, the same rule will apply; for such expenses are either necessary or beneficial to the property, and give rise to an action in favor of the husband.

Ulpianus, On Sabinus, Book XXXI. The Prætor appoints a curator for an estate while the appointed heirs are deliberating whether they will accept it.

The Same, On Sabinus, Book XXXI. Celsus, in the Thirty-fourth Book, says that they are mistaken who believe that anyone who has obtained possession of property in good faith can acquire it, by usucaption, as his own; and that it makes no difference whether or not he purchased it, or it was given to him, provided he thinks it was purchased by, or given to him; for the reason that usucaption does not apply to a legacy, a gift, or a dowry, if no donation, dowry, or legacy exists. The same rule is held to be applicable to the case of an appraisement made in court, for if the party did not agree to the appraisement, he cannot acquire the property by usucaption.

Ulpianus, On Sabinus, Book XXXI. A right to usucaption, and one which is extremely just, is that which is said to exist on account of a dowry, so that anyone who receives property by way of dowry can acquire it by usucaption, after the expiration of the time usually prescribed by law in the case of those who acquire property in this manner as purchasers. 1It makes no difference whether certain specified articles, or the entire amount of the property, is given by way of dowry. 2In the first place, let us consider the time when anyone can acquire property by usucaption as dowry; and whether this is to begin after the date of the marriage, or before it. A question commonly discussed is, whether a man who is betrothed (that is to say, one who has not yet been married), can acquire property by usucaption, because of its being a dowry. Julianus says that, if the woman who is betrothed delivers the property to the other party, with the intention that it shall not belong to him until after the marriage has been solemnized, usucaption will not take place. If, however, this was evidently not the intention, it should be held (so Julianus says) that the property immediately becomes his; and if it belongs to someone else, it can be acquired by usucaption. This opinion seems to me to be plausible. But, before the marriage takes place, usucaption becomes operative, not because of the dowry, but on the ground of ownership. 3During the existence of the marriage, usucaption takes place between the persons who are married, on account of the dowry. If, however, the marriage does not exist, Cassius says that usucaption cannot occur as there is no dowry. 4He also says that if the husband thinks that he is married, when this is not the case, he cannot acquire the property by usucaption, because there is no dowry. This opinion is reasonable.

The Same, On Sabinus, Book XXXI. When anyone accused of a capital crime emancipates his son, in order that he may accept an estate, it is provided in a Rescript that he is not considered to have done this for the purpose of defrauding creditors, for the reason that the property was not acquired by him.