[SCAEUOLA libro octauo decimo digestorum. ] §32.0.37.4Nuptura duobus filiis suis, quos ex priore marito habebat, mandauit, ut uiginti, quae doti dabat, stipularentur in omnem casum, quo solui posset matrimonium, ut etiam alterutri ex his tota dos soluatur: constante matrimonio uno ex filiis mortuo uxor per epistulam petit a superstite filio, uti quandoque partem dimidiam dumtaxat dotis exigeret et ea contentus erit, alteram autem partem apud maritum eius remanere concedat.
A woman about to marry commissioned her two sons, whom she had from a prior husband, to stipulate for the twenty which she was giving as a dowry for every eventuality by which the marriage might be dissolved, so that the entire dowry should be paid even to either one of them. While the marriage was still standing, one of the sons having died, the wife requested the surviving son by letter that he should demand only a half part of the dowry at any time and be content with it, and that he should allow the other part to remain with her husband.
quaesitum est postea in matrimonio muliere defuncta, an maritus, si de tota dote conueniatur a filio, doli mali exceptione se tueri possit et an ultro ex causa fideicommissi actio ei competit, ut de parte obligationis accepto ei feratur.
Afterwards, the woman having died during the marriage, it was asked whether the husband, if he should be sued by the son for the entire dowry, could defend himself by the exception of malicious intent, and whether an action additionally belongs to him on the ground of the trust so that a release should be given to him for that part of the obligation.
respondit et exceptionem utilem fore et ultro ex fideicommisso peti posse.
He answered that both the exception would be available and a claim could additionally be made on the basis of the trust.
idem quaerit, an de reliqua dimidia parte mandati actio utilis sit heredibus mulieris aduersus filium eius.
The same person asks whether an action on the commission is available to the heirs of the woman against her son regarding the remaining half part.
respondit secundum ea quae proponerentur, maxime post litteras ad filium scriptas non fore utilem.
He answered that according to the facts presented, especially after the letter written to the son, it would not be available.
CLAUDIUS: quoniam in his expressit, ut contentus esset partis dimidiae dotis.
CLAUDIUS: Because in these she expressed that he should be content with a half part of the dowry.
quibus uerbis satis fideicommissum filio relinqui placuit.
By which words it was held that a trust was sufficiently left to the son.
§32.0.37.5Codicillis ita scripsit: Βούλομαι πάντα τὰ ὑποτεταγμένα κύρια εἶναι.
He wrote in his codicils as follows: "I wish all that is subjoined to be valid.
Μαξίμῳ τῷ κυρίῳ μου δηνάρια μύρια πεντακισχίλια, ἅτινα ἔλαβον παρακαταθήκην παρὰ τοῦ θείου αὐτοῦ Ἰουλίου Μαξίμου, ἵνα αὐτῷ ἀνδρωθέντι ἀποδώσω, ἃ γίνονται σὺν τόκῳ τρία μύρια, ἀποδοθῆναι αὐτῷ βούλομαι· οὕτω γὰρ τῷ θείῳ αὐτοῦ ὤμοσα'. quaesitum est, an ad depositam pecuniam petendam sufficiant uerba codicillorum, cum hanc solam nec aliam ullam probationem habeat.
I wish there to be returned to my master Maximus fifteen thousand denarii, which I received as a deposit from his uncle Julius Maximus, to restore to him when he became a man, which with interest make thirty thousand; for so I swore to his uncle." It was asked whether the words of the codicils are sufficient to demand the deposited money, when he has this alone and no other proof.
respondit: ex his quae proponerentur, scilicet cum iusiurandum dedisse super hoc testator adfirmauit, credenda est scriptura.
He answered: from the facts presented, namely since the testator affirmed that he had taken an oath on this matter, the writing is to be believed.
§32.0.37.6Titia honestissima femina cum negotiis suis opera Callimachi semper uteretur, qui ex testamento capere non poterat, testamento facto manu sua ita cauit: Τιτία διεθέμην καὶ βούλομαι δοθῆναι Καλλιμάχῳ μισθοῦ χάριν δηνάρια μύρια: quaero, an haec pecunia ex causa mercedis ab heredibus Titiae exigi possit.
Titia, a most honorable woman, since she always used the assistance of Callimachus in her affairs, who could not take under a testament, having made a testament with her own hand, provided as follows: "I, Titia, have disposed and wish ten thousand denarii to be given to Callimachus by way of reward." I ask whether this money can be demanded from the heirs of Titia on the ground of reward.
respondi non idcirco quod scriptum est exigi posse in fraudem legis relictum.
He answered: it is not because of what is written that it can be demanded, as it was left in fraud of the law.
§32.0.37.7Ex his uerbis testamenti: 'omnibus, quos quasue manumisi manumiseroue siue his tabulis siue quibuscumque aliis, filios filiasue suos omnes concedi uolo' quaesitum est, an his, quos uiuus manumississet, debeantur filii.
From these words of the testament: "To all whom I have manumitted or shall manumit, whether by these tablets or by any others, I wish all their sons and daughters to be granted." It was asked whether the children are due to those whom he had manumitted during his lifetime.
respondit his quoque, quos quasue ante testamentum factum manumississet, filios filiasue ex causa fideicommissi praestari oportere.
He answered that to those also, male or female, whom he had manumitted before the testament was made, the sons and daughters ought to be provided on the ground of the trust.