[TRYFONINUS libro decimo disputationum. ] §23.4.30.prBaebius Marcellus Baebio Marullo dotis filiae suae nomine centena promiserat et conuenerat inter eos, ne ea dos constante matrimonio peteretur, uel si post mortem patris in matrimonio sine liberis filia decessisset, ut dimidia dos apud Marullum remaneret, dimidia fratri mulieris restitueretur: eaque etiam in stipulationem deducta erant.
[TRYFONINUS, from the tenth book of Discussions.] Baebius Marcellus had promised Baebius Marullus one hundred as a dowry on behalf of his daughter, and it had been agreed between them that this dowry should not be claimed during the marriage, or that, if after the death of her father the daughter should die during the marriage without children, half of the dowry should remain with Marullus, and half should be restored to the woman's brother; and these terms had also been drawn into a stipulation.
mortuo Marcello, filio et filia superstitibus, dote uniuersa filiae praelegata Marullus nata filia diuerterat et mulier decesserat fratre suo et filia ex partibus aequis heredibus relictis.
After the death of Marcellus, with his son and daughter surviving him, the entire dowry having been pre-bequeathed to the daughter, Marullus divorced her after a daughter was born, and the woman died, leaving her brother and her daughter as heirs in equal shares.
apud Petronium Magnum praetorem Marullus ab herede filio Marcelli ex dotis promissione uniuersam dotem petebat illa coniectura, quasi inter duos placuisset nullo filiorum exstante mortua muliere partem dotis remanere apud maritum, magis conuenisset utique totam eius esse dotem, si filium filiamue habuisset.
Before the praetor Petronius Magnus, Marullus claimed the entire dowry from Marcellus' son and heir under the promise of dowry, on the conjecture that, since it had been agreed between the two that part of the dowry should remain with the husband upon the death of the woman with no children surviving, it would have been all the more agreed that the entire dowry should be his if she had had a son or daughter.
ex diuerso respondebatur pacti quidem uulgaris exceptionem etiam heredi proficere: sed in specie, quae proponitur, non quasi heres mulieris ex persona defunctae se exceptione pacti tuebitur, sed ipse erat ille, qui etiam uiua muliere, si ab eo dos peteretur, potuisset ea exceptione Marullum, quia diuortium factum erat, summouere, eandemque defensionem etiam post mortem sororis suae retinebat.
On the other side, it was answered that although the plea of a common agreement indeed benefits also an heir, in the specific case presented, he would defend himself by the plea of agreement not as the heir of the woman in the person of the deceased. Rather, he himself was the person who, even while the woman was alive, if the dowry were claimed from him, could have barred Marullus by that plea because a divorce had taken place, and he retained the same defense even after the death of his sister.
itaque placuit eum ab ea petitione absolui nulla ex hac sententia facta derogatione fideicommissi petitioni, quam iure hereditario per filiam heres uxoris Marullus in parte dimidia habebat.
Therefore, it was held that he should be discharged from that claim, without any prejudice being done by this decision to the claim for the trust-bequest which Marullus, as the heir of his wife, held in a half-share through his daughter by hereditary right.