[IDEM libro quarto ad legem Iuliam et Papiam. ] §31.0.53.prCum ab uno herede mulieri pro dote compensandi animo legatum esset eaque dotem suam ferre quam legatum maluit, utrum in omnes heredes, an in eum solum, a quo legatum est, actio ei de dote dari debeat, quaeritur.
[IDEM libro quarto ad legem Iuliam et Papiam.] When a legacy was left to a woman by one of the heirs with the intention of compensating her for her dowry, and she preferred to take her dowry rather than the legacy, the question arises whether an action for the dowry should be granted to her against all the heirs, or only against the one from whom the legacy was left.
Iulianus in eum primum, a quo legatum sit, actionem dandam putat: nam cum aut suo iure aut iudicio mariti contenta esse debeat, aequum esse eum, a quo ei maritus aliquid pro dote legauerat, usque ad quantitatem legati onus huius aeris alieni sustinere reliqua parte dotis ab heredibus ei praestanda.
Julian thinks that the action should first be granted against the one from whom the legacy was left; for since she ought to be content either with her own right or with her husband's judgment, it is equitable that the heir to whom her husband had bequeathed something to her in lieu of her dowry should bear the burden of this debt up to the amount of the legacy, while the remaining part of the dowry is to be paid to her by the heirs.
§31.0.53.1Eadem erunt dicenda, si heres instituta pro dote omiserit hereditatem, ut in substitutum actio detur: et hoc uerum est.
The same must be said if the person instituted as heir in lieu of the dowry should refuse the inheritance, so that the action is granted against the substitute; and this is correct.
§31.0.53.2Sed de legatis et legis Falcidiae ratione belle dubitatur, utrum is, in quem solum dotis actio detur, legata integra ex persona sua debeat, perinde ac si omnes heredes dotem praestarent, an dotem totam in aere alieno computare, quia in eum solum actio eius detur: quod sane magis rationem habere uidetur.
But concerning legacies and the application of the Lex Falcidia, a very nice question arises, whether he against whom alone the action for the dowry is granted must pay the legacies in full from his own share, just as if all the heirs were paying the dowry, or whether he should compute the whole dowry as part of his debts, because the action for it is granted against him alone; which latter view indeed seems to have more reason on its side.