The Same, On Sabinus, Book XXXIII. A mother gave an utensil of gold for the use of her daughter; the father then gave the said utensil by way of dowry to the husband of the girl; and her mother afterwards died. If the father gave the article by way of dowry, without the knowledge or consent of his wife, it will belong to the heir of the mother, and he can bring an action to recover it; and because the property is evicted it is held that that much less of the dowry has been given by the husband, who will be entitled to an action against his father-in-law.

Ulpianus, On Sabinus, Book XXXIII. This was the condition of the laws with reference to donations between husband and wife, as we have previously stated, when our Emperor Antoninus, before the death of his father the Divine Severus, in an Address delivered to the Senate during the consulship of Fulvius Æmilianus and Nummius Albinus, caused the Senate to relax to some extent the strictness of their provisions. 1Ad Dig. 24,1,32,1Windscheid: Lehrbuch des Pandektenrechts, 7. Aufl. 1891, Bd. II, § 509, Note 35.The Address of our Emperor with reference to the confirmation of donations not only has reference to property obtained by a husband in the name of his wife, but also to all donations made between a husband and wife; so that by operation of law, the property belongs to the party to whom it is donated, gives rise to a civil obligation, and comes within the scope of the Lex Falcidia, where this can become operative. I think that this law will apply, because what is donated is, as it were, confirmed by will. 2The Rescript says: “It is wrong for anyone who makes a donation to change his mind, but it would be hard and avaricious for the heir to take the property, when this, perhaps, would be contrary to the will of the party who donated it.” 3We should understand this to refer to the change of mind of the donor in his last moments, for if he had made a donation to his wife and then changed his mind, and afterwards changed it again, it must be said that the donation is valid, as we are considering the man’s last wishes, just as we are accustomed to do with reference to trusts, when we discuss an exception interposed on the ground of fraud, as the will of the party may be undetermined up to the last moment of his existence. 4Where, however, the donor changes his mind only once, we grant his heir the right of revocation, if it is perfectly evident that the deceased changed his mind. But if this is doubtful, the judge should rather incline to confirm the donation. 5If a husband should pledge the property he donated, we are inclined to hold that he has changed his mind, although he still retains the ownership of the property. What course, however, should be pursued if it was his intention for the donation to continue to exist? Suppose that the property remained in the possession of the woman under a precarious title, and that she was ready to satisfy the creditor? It must then be held that the donation is valid. For if the husband gave the property to her in the first place with this intention, I should say that the donation was valid, so that if the woman was prepared to satisfy the creditor, she will be entitled to an exception on the ground of bad faith; and, moreover, if she should pay the debt, she could, by means of an exception on the ground of bad faith, cause the right of action of the creditor to be assigned to her. 6Where the donor becomes the slave of a private individual, it must be said that the donation is not perfected, but is destroyed, although servitude is compared to death. Hence if the woman to whom the donation is made should be reduced to slavery, the donation will be extinguished. 7Where a husband made a donation to his wife, and, on account of remorse for some crime, committed suicide, or, even after death, his memory was rendered infamous, the donation will be revoked; though gifts which he made to others will be valid where he did not make such donations mortis causa. 8Likewise, where a husband who is in the army, makes a donation out of his castrense peculium, and afterwards is convicted of a crime; for the reason that he will be permitted to testify with reference to property of this kind even after having been convicted, provided he obtains the right to do so, the donation will be valid; for he who is permitted to give evidence can make a donation mortis causa. 9The Rescript says, “Has consumed,” and this term we must understand to mean that he who received the donation has not become any more wealthy thereby. If, however, he has been pecuniarily benefited, the advantage conferred by the Rescript will not be applicable. But if he has not become any more wealthy, and has given an amount equal to the donation to the other party, it must be said that if the one who died was enriched, the other can recover what he gave, and is not obliged to set off what he has consumed, although where a divorce takes place, a set-off of this kind can be made. 10If a divorce should take place after the donation, or if the party who made the gift should die first, the ancient law must be observed; that is to say, the donation will be valid if the husband desires the wife to have it, but if he does not, it shall be extinguished; for many married persons separate well disposed toward one another, and many others cherish anger and hatred. 11But what if a divorce takes place, and the marriage is afterwards re-established, and the mind of the donor is either changed during the divorce, or remains the same; or, when the marriage is re-established, the wish of the donor becomes as it was in the first place; will the gift remain valid if the donor should die while the marriage is still in existence? It can be maintained that it will be valid. 12If, however, a divorce should not take place, but only a slight misunderstanding should arise, it is certain that the donation will be valid if the misunderstanding is removed. 13Where a wife and her husband have lived for a long time separated, but still preserve the matrimonial bond (which we know sometimes happens with persons of consular rank), I think that donations will not be valid, since the union has always existed; for marital affection, and not coition, constitutes marriage. Where, however, the donor dies first, the donation will then be valid. 14What shall we say where both parties, the one who made the donation and the one to whom it was made, are captured by the enemy? And before I venture to discuss this question, the Address of the Emperor which decided that a donation is of no force or effect if the party to whom it is given should die, must be considered. Therefore, if both parties should die, either through shipwreck, or the fall or the burning of a house, what shall we say? Where, indeed, it can be established which one of them died first, the question is readily disposed of, but if this cannot be proved, the question becomes difficult, and I am rather of the opinion that the donation will be valid, as we gather from the words of the Address, for it says: “If the party who received the donation should die first.” But when both of them die at the same time it cannot be held that the one who received the donation was the first to depart from life. Hence, it is very properly held that, where they have made donations to one another, both of these will be valid if the parties die at the same time, because, although neither one survived the other, the Address did not contemplate the death of both together. Where, however, neither survived the other, the mutual donation will be valid, for it must be said with reference to mutual donations mortis causa that an action for recovery can be granted to neither of the parties, and therefore that the heirs of both profit by the donations. In accordance with this view, if both parties are captured by the enemy at the same time, and both die while in captivity at different times, must the date when they were taken captive be considered to enable us to hold that the donations are valid; just as if both had died at once? Or shall we say that neither donation is valid, because the marriage was terminated during the lifetime of the party in question? Or shall we ascertain which one of them died first, in order to decide that the donation with reference to him was not valid; or whether, if the other should return to his country, his will be valid? It is my opinion that where the parties do not return, the time when they were taken captive should be considered, just as if they had died then; but if one of them should return, he will be held to have survived because he did so. 15When a husband bequeaths certain property out of that which he had already donated, but fails to donate the rest, he is not held to have been unwilling that the remainder should belong to his wife; for frequently a party makes a bequest, and afterwards a donation, or some other reason may have existed for his making the bequest. 16The Address not only includes husband and wife, but also other parties who are also prohibited from making donations on account of marriage; as for instance, where a father-in-law makes a donation to his daughter-in-law, or vice versa; or a father-in-law to his son-in-law, or vice versa; or one of two fathers-in-law who have the parties united in marriage under their control makes a donation to the other; for, in accordance with the spirit of the Address, all these persons are permitted to make donations under the same circumstances. This was also held by Papinianus in the Fourth Book of Opinions, for he said: “A father-in-law made a donation to his daughter-in-law, or to his son-in-law, and afterwards, one or the other of them died during marriage. Although the defect in the donation continues to exist, still, if the father-in-law did not raise any question with reference to said donation, the terms of the Address will be held to operate against his heirs after his death, for the same reason which prohibits a donation of this kind demands that the benefit be afforded.” Therefore, in order that such a donation may be valid, Papinianus requires that the son of the party who made the donation shall die before him, and that the father-in-law shall die afterwards, without having changed his mind. 17Where a son under paternal control, who has a castrense, or a quasi castrense peculium, makes a gift to his wife, we must take into account the person of the son, and his death. 18If a daughter-in-law makes a donation to her father-in-law, we must consider her death and the continuance of her will until her last moments. Where, however, her father-in-law dies first, we hold that the donation will be extinguished. But if the husband should live, and survive his wife, must we admit that the donation will take effect? If indeed, the husband becomes the sole heir of his father-in-law, a new donation can be said to have been made for the benefit of the husband, so that where the former ends, the other begins; and where the son is not the heir of his father, the donation will be terminated for another reason. 19If the father-in-law repudiates his daughter-in-law, the donation will be void, even though the marriage, when the husband and wife agree, still continues to exist, in accordance with the Rescript of our Emperor; but the marriage will be at an end with reference to the parties among whom the donation is made. 20Hence if two fathers-in-law make donations to one another, the same rule will apply if they repudiate their son and daughter-in-law, and the donations they make to one another will be void. Where, however, a donation of this kind is made between fathers-in-law, the death of him who made it during the marriage and while the right of paternal control existed is required to render the donation valid. The same rule also applies to those who are under the control of the said parties. 21Where one father-in-law makes a donation to another, and one, or both of them emancipate the persons who are united in marriage, it must be held that this donation has no reference to those mentioned in the Address, and therefore it becomes void. 22Where a man makes a donation to his betrothed which is to take effect at the time of the marriage, although the donation is not considered to have been made between man and wife, and the words of the Address do not expressly apply to it, still, the donation must be said to come within its scope, and it is valid if the will of the party continues the same until his death. 23The donation will become operative whether the property was actually donated, or an obligation was released; as for instance, where a man releases his wife from liability for what she owes him, by way of a donation, it can be said that the release itself is not in suspense, but that its effect is. Generally speaking, all the donations which we have mentioned as being prohibited, will be valid according to the terms of the Address. 24Where a partnership is contracted between husband and wife by way of donation, it is void according to the ordinary rule of law, nor does the liberal construction of the Decree of the Senate grant such an advantage that it can be held that an action on partnership will lie; still, the property which they hold in common cannot be revoked in accordance with the terms prescribed by their agreement. Therefore, an action on partnership will not be available, because that is not a partnership which is interposed for the purpose of the advantage of only one of the parties, even where this is done by others; and for this reason it does not become operative between husband and wife. 25The same must be said where a purchase is made by way of donation, for it is void. 26It is evident that if, for the purpose of making a donation, property is sold for less than it is worth, or if the price should afterwards be remitted, we must concede that the donation is valid, in accordance with the Decree of the Senate. 27Where a man had a betrothed and afterwards married her when it was not lawful for him to do so; let us see whether donations made, so to speak, during betrothal, are valid. Julianus discusses this question with reference to a minor of twelve years of age who had been brought to the home of her so-called husband while she was still too young to be married; and he says that she is his betrothed, but she is not his wife. The better opinion, however, is the one held by Labeo, by myself, and by Papinianus in the Tenth Book of Questions, which is that if the betrothal preceded the alleged marriage it will continue to exist, although the party who married the girl may think that she is his lawful wife. Where, however, it did not precede the marriage, there can be no betrothal, as it did not take place, nor did any marriage, because it could not be celebrated. Therefore, where the betrothal came first, the donation is valid, but where it did not, it is void because the party did not make the donation, as it were, to a stranger, but to his supposed wife, and therefore the Address will not apply. 28Where, however, a Senator betroths himself to a freedwoman, or a guardian to his ward, or any other of those persons who are forbidden to contract marriage does so, and afterwards marries the girl; will a donation made, as it were, during betrothal, be valid? I think that such betrothals should be rejected, and whatever property has been donated should be seized and confiscated by the Treasury, as having been bestowed upon persons who are unworthy to hold it.

Ulpianus, On Sabinus, Book XXXIII. Where property which was encumbered was bequeathed by a trust, if the testator knew that it was encumbered, it must be released by the heir, unless the testator intended otherwise. If he did not know this, the debt must be assumed by the beneficiary, unless he can prove that if the testator knew that the property was encumbered he would have left something else, or if it is probable that something will remain after payment of the debt. If, however, while it was not the intention of the testator that the burden of releasing the lien on the land should be borne by his heirs, he evidently did not think of relieving them of their responsibility; the beneficiary of the trust can, by means of an exception on the ground of bad faith, compel the creditors, if they bring an Hypothecary Action against him, to assign their rights to him; and even though he may not have done this during the time prescribed by law, still, this privilege will be accorded him by means of the jurisdiction of the Governor of the province.

The Same, On Sabinus, Book XXXIII. If the parties should renew their friendship, and the testator should repent of his former resolution, the legacy or trust which was left will be restored in its entirety, for the will of the deceased was alterable until the last moment of his life.

The Same, On Sabinus, Book XIII. A father can legally make a donation on account of the death of his son, even during the existence of his son’s marriage.

Ulpianus, On Sabinus, Book XXXIII. Roads existing in any particular neighborhood, which have been derived from the contribution of land owned by private individuals, and date from time immemorial, are included in the number of public highways. 1A difference exists between roads of this kind and military highways, namely, military highways terminate at the seashore, or in cities, or at public streams, or at some other military highway, but this is not the case with roads through a neighborhood, for some of them terminate at military highways, and others end without any exit.

Ulpianus, On Sabinus, Book XXXIII. It is held that all successors are meant by the word “heir,” although this may not be expressly stated.