[ULPIANUS libro trigesimo secundo ad Sabinum. ] §24.1.11.prSed interim res non statim fiunt eius cui donatae sunt, sed tunc demum, cum mors insecuta est: medio igitur tempore dominium remanet apud eum qui donauit.
[ULPIANUS libro trigesimo secundo ad Sabinum.] But in the meantime, things do not immediately become the property of the person to whom they were donated, but only then at last, when death has followed; therefore, in the intermediate time, ownership remains with the one who made the donation.
§24.1.11.1Sed quod dicitur mortis causa donationem inter uirum et uxorem ualere, ita uerum est, ut non solum ea donatio ualeat secundum Iulianum, quae hoc animo fit, ut tunc res fiat uxoris uel mariti, cum mors insequetur, sed omnis mortis causa donatio.
But what is said, that a donation causa mortis between husband and wife is valid, is true in such a way that, according to Julian, not only that donation is valid which is made with this intention, that the thing should become the property of the wife or husband when death follows, but every donation causa mortis.
§24.1.11.2Quando itaque non retro agatur donatio, emergunt uitia, ut Marcellus animaduertit in specie huiusmodi.
Therefore, when a donation is not retroactively applied, defects emerge, as Marcellus observes in a case of this kind.
maritus uxori mortis causa donatum uoluit: interposuit mulier filium familias, qui a marito acciperet eique traderet: deinde, cum moritur maritus, pater familias inuenitur: an ualeat traditio? et ait consequens esse dici traditionem ualere, quia sui iuris effectus est eo tempore, ad quod traditio redigitur, id est cum maritus moriebatur.
A husband wished to make a donation causa mortis to his wife; the woman interposed a son-in-power to receive it from the husband and deliver it to her; then, when the husband dies, he is found to be a father of a family; is the delivery valid? And he says that it is logical to hold that the delivery is valid, because he was made independent at that time to which the delivery is referred back, that is, when the husband was dying.
§24.1.11.3Idem ait: placuisse scio Sabinianis, si filiae familias uxori maritus tradet, donationem eius cum omni suo emolumento fieri, si uiuo adhuc marito sui iuris fuerit effecta.
The same writer says: I know it was accepted by the Sabinians that if a husband delivers something to his wife who is a daughter-in-power, her donation becomes effective with all its benefit, if she was made independent while the husband was still living.
quod et Iulianus libro septimo decimo digestorum probat.
Julian also approves of this in the seventeenth book of his Digests.
§24.1.11.4Proinde et si uxor marito filio familias mortis causa tradat et is sui iuris effectus sit, sine dubio dicemus ipsius fieri.
Accordingly, also if a wife delivers causa mortis to her husband who is a son-in-power, and he is made independent, we shall say without doubt that it becomes his own.
§24.1.11.5Per contrarium quoque si uxor donauerit mortis causa patri familias marito et mortis eius tempore filius familias inueniatur, patri erit nunc emolumentum quaesitum.
Conversely, also, if a wife has made a donation causa mortis to her husband who is a father of a family, and at the time of her death he is found to be a son-in-power, the benefit will now be acquired by his father.
§24.1.11.6Consequenter Scaeuola apud Marcellum notat, si seruum interposuit mulier, ut ei tradatur mortis causa, isque adhuc seruus dederit mulieri, deinde mortis tempore liber inueniatur, tantundem esse dicendum.
Consequently, Scaevola notes in Marcellus' work that if a woman interposed a slave so that delivery might be made to him causa mortis, and he, while still a slave, gave it to the woman, and then at the time of death he is found to be free, the same must be said.
§24.1.11.7Idem Marcellus tractat, si is qui interpositus est, posteaquam dederit mulieri, decesserit uiuo adhuc donatore, donationem euanescere, quia debeat aliquo momento interposito fieri et sic ad mulierem transire: quod ita procedit, si ea cui donabatur eum interposuit, non is qui donabat.
The same Marcellus discusses that if the person who was interposed, after he had given it to the woman, died while the donor was still alive, the donation vanishes, because it must become effective at some moment through the interposed person and thus pass to the woman; which is the case only if she to whom the donation was being made interposed him, and not he who was donating.
porro si a marito interpositus est, et res ipsius statim facta est et, si ante mortem mariti tradiderit et decesserit, traditio eius egit aliquid, ut tamen haec traditio pendeat, donec mors sequatur.
Furthermore, if he was interposed by the husband, the thing immediately became his own property, and if he delivered it before the husband's death and died, his delivery has had some effect, although this delivery remains pending until death follows.
§24.1.11.8Si uxor rem Titio dederit, ut is marito mortis causa traderet eaque defuncta inuitis heredibus eius Titius marito dederit, interest, utrum a muliere sit interpositus Titius an uero a marito cui donabatur: si a muliere interpositus est, obligabit se condictione, si marito tradiderit, si autem a marito sit interpositus, mortua muliere confestim fundus efficietur eius quem maritus interposuit et actionem ipse maritus cum eo habebit.
If a wife gave a thing to Titius so that he might deliver it to her husband causa mortis, and, after she died, Titius gave it to the husband against the will of her heirs, it matters whether Titius was interposed by the woman or indeed by the husband to whom the donation was being made. If he was interposed by the woman, he will bind himself by a condictio if he delivers it to the husband; but if he was interposed by the husband, immediately upon the death of the woman the estate will become the property of the person whom the husband interposed, and the husband himself will have an action against him.
§24.1.11.9Si uxor rem, quam a marito suo mortis causa acceperat, uiuo eo alii tradiderit, nihil agitur ea traditione, quia non ante ultimum uitae tempus mulieris fuit.
If a wife, while her husband was alive, delivered to another a thing which she had received from him causa mortis, nothing is achieved by that delivery, because the thing was not the woman's before the last moment of her life.
plane in quibus casibus placeat retro agi donationem, etiam sequens traditio a muliere facta in pendenti habebitur.
Clearly, in those cases where it is accepted that the donation is retroactively applied, even a subsequent delivery made by the woman will be held in suspense.
§24.1.11.10Si maritus uxori donauerit mortis causa eaque diuerterit, an dissoluatur donatio? Iulianus scripsit infirmari donationem nec impendere.
If a husband has made a donation causa mortis to his wife and she divorces, is the donation dissolved? Julian wrote that the donation is invalidated and does not remain effective.
§24.1.11.11Idem ait, si diuortii causa facta sit donatio, ualere:
The same writer says that if the donation was made for the sake of divorce, it is valid.