[MARCELLUS libro septimo digestorum. ] §24.3.57.prUsu fructu in dotem dato si diuortium interuenerit nec proprietas rei apud maritum uel mulierem sit, eam dotis esse restitutionem, ut maritus caueat, quamdiu uixerit, passurum se uti frui mulierem heredemque eius.
[MARCELLUS, On the Digest, book seventh.] When a usufruct has been given as a dowry, if a divorce should occur and the ownership of the property is neither with the husband nor with the wife, the return of the dowry consists in this: that the husband promises that, as long as he lives, he will permit the wife and her heir to use and enjoy it.
quod an uerum sit circa adiectionem heredis, dubito.
Whether this is true regarding the addition of the heir, I doubt.
interest, quemadmodum sit usus fructus in dotem datus.
It matters in what manner the usufruct was given as a dowry.
si, cum haberet mulier fructum, uiro, cuius erat proprietas fundi, usum fructum cessit, nihil mulier heredi suo relinquet: debebatur enim ei usus fructus, qui ad heredem non solet transire.
If, while the wife held the usufruct, she ceded the usufruct to her husband, who was the owner of the land, the wife will leave nothing to her heir; for the usufruct was owed to her, which is not accustomed to pass to an heir.
quod si fundi sui fructum mulier uiro cessit, restitui is a uiro debet: cum proprietate enim ad heredem eius transisset, si uir in reddendo eo non fecisset moram.
But if the wife ceded the usufruct of her own land to her husband, it must be restored by the husband; for it would have passed to her heir along with the ownership, if the husband had not made delay in returning it.
si uero alienata sit proprietas aut aliquis fundi sui usum fructum mulieris iussu uiro eius dederit in dotem, inspiciendum est primum, quemadmodum mulieri possit restitui: potest autem uel cautionibus interpositis, ut sic ut potest uir iure suo cedat mulieri fruique eam patiatur, uel, si se accommodauit dominus proprietatis, uolente eo mulieri constituatur usus fructus: nam aut fructum fundi ille mulieri poterit cedere aut aliquid uidelicet pro eo, ut inter eos actum fuerit, dare.
If, however, the ownership has been alienated, or if someone by the wife's order has given the usufruct of his own land to her husband as a dowry, we must first consider how it can be restored to the wife. It can be done either by entering into security, so that the husband, in such a way as he can by his own right, cedes it to the wife and permits her to enjoy it; or, if the owner of the property accommodatingly agrees, the usufruct is established for the wife with his consent. For either he will be able to cede the usufruct of the land to the wife, or obviously give something in place of it, as was agreed between them.
nam et finge hoc ipsum mulierem posse proprietatis domino uendere.
For imagine also that the wife herself could sell this very thing to the owner of the property.
quo casu non inique etiam mulieris herede agente uir facere cogetur: quippe si moram non fecisset, pretium fructus mulier heredi suo reliquisset.
In which case, it is not unjust for the husband to be compelled to perform even when the wife's heir brings an action; for indeed, if the husband had not made delay, the wife would have left the price of the usufruct to her heir.
quod si facultatem usus fructus uendendi proprietatis domino mulier non habuerit, patientiam, quam percipiendi fructus praestare ipsi debuit, etiam heredi eius praestat.
But if the wife did not have the opportunity to sell the usufruct to the owner of the property, the forbearance which the husband was bound to afford to her for perceiving the fruits, he must also afford to her heir.