[ULPIANUS libro nono decimo ad Sabinum. ] §33.4.1.prCum dos relegatur, uerum est id dotis legato inesse, quod actione de dote inerat.
[ULPIANUS, in the nineteenth book on Sabinus.] When a dowry is bequeathed back, it is true that whatever was inherent in the action for the dowry is included in the legacy of the dowry.
§33.4.1.1Et ideo si inter uirum et uxorem conuenerat, ut morte uiri soluto matrimonio filio communi interueniente dos apud mariti heredem remaneret, et maritus decedens dotem relegauerit, stari pacto non debet ob hoc quod dos relegata est.
And therefore, if it had been agreed between husband and wife that, the marriage being dissolved by the death of the husband, the dowry should remain with the husband's heir in the presence of a common son, and the dying husband bequeathed the dowry back, the agreement ought not to be stood by for the reason that the dowry was bequeathed.
uerum et citra relegationem hoc probari debet: nam quod est admissum posse deteriorem condicionem dotis fieri interuenientibus liberis, totiens locum habet, quotiens ipsa in matrimonio decedit uel diuortium interuenit.
But even without the bequest back, this ought to be approved: for what has been admitted, that the condition of the dowry can be made worse in the presence of children, holds place only as often as she herself dies during the marriage or a divorce occurs.
§33.4.1.2Et uerum est commodum in dote relegata esse repraesentationis, quamuis annua die dos praestaretur: §33.4.1.3Est et illud, quod ob res donatas hodie post senatus consultum nulla fit exactio, si modo uoluntatem non mutauit testator.
And it is true that the advantage of immediate payment exists in a bequeathed dowry, even though the dowry was to be paid on an annual term: There is also this, that on account of things given as gifts, today after the senatus consultum no exaction is made, provided only that the testator did not change his intention.
§33.4.1.4Impensae autem ipso iure dotem minuunt.
But expenses diminish the dowry by operation of law.
sed quod diximus ipso iure dotem impensis minui, non ad singula corpora, sed ad uniuersitatem erit referendum.
However, what we said, that the dowry is diminished by expenses by operation of law, is to be referred not to individual bodies, but to the whole.
§33.4.1.5Adeo autem dotis actionem continet dotis relegatio, ut, si uiuus eam uxori (scilicet quibus licet casibus) soluerit, cesset legatum.
But the bequest of a dowry so contains the action for the dowry that, if he paid it to his wife during his lifetime (of course, in those cases where it is allowed), the legacy ceases.
§33.4.1.6Sed et si mancipia fuerint in dote non aestimata et haec demortua sint, legatum dotis in his euanescit.
But also, if there were slaves in the dowry not appraised and these have died, the legacy of the dowry vanishes in their regard.
§33.4.1.7Sed et si dotem promiserit mulier neque dederit et decedens maritus uxori dotem praelegauerit, mulier nihil amplius quam liberationem habebit: nam et si quis ita legauerit 'centum quae in arca habeo' aut 'quae ille apud me deposuit', si nulla sint, nihil deberi constat, quia nulla corpora sint.
But also, if a woman promised a dowry and did not give it, and the dying husband bequeathed the dowry beforehand to his wife, the woman will have nothing more than release: for even if someone bequeathed in this way "a hundred which I have in my chest" or "what that person deposited with me", if there is nothing, it is established that nothing is owed, because there are no bodies.
§33.4.1.8Si quis uxori fundum Titianum his uerbis legasset: 'is enim fundus propter illam ad me peruenit', omnimodo debetur fundus: nam quidquid demonstratae rei additur satis demonstratae, frustra est.
If anyone had bequeathed to his wife the Titian estate in these words: "for that estate came to me on her account", the estate is owed in any event: for whatever is added to a sufficiently described thing that has been described is of no effect.
§33.4.1.9Celsus libro uicesimo digestorum scribit, si socer nurui dotem relegauit, si quidem ius actionis de dote uoluit relegare, nullius momenti esse legatum, quippe nupta est: sed si uoluit cam recipere dotalem pecuniam, inquit, utile erit legatum.
Celsus writes in the twentieth book of the Digests, if a father-in-law bequeathed the dowry to his daughter-in-law, if indeed he wished to bequeath the right of action for the dowry, the legacy is of no moment, since she is married: but if he wished her to receive the dotal money, he says, the legacy will be valid.
si tamen haec dotem receperit, nihilo minus maritus dotis persecutionem habebit, siue heres institutus esset, familiae herciscundae iudicio, siue non, utili actione.
If, however, she receives the dowry, the husband will nonetheless have the pursuit of the dowry, whether he was instituted heir, by the action for dividing the family inheritance, or if not, by a useful action.
ego puto, quoniam non hoc uoluit socer, ut bis dotem heres praestet, mulierem agentem ex testamento cauere debere defensu iri heredem aduersus maritum.
I think, since the father-in-law did not wish this, that the heir should pay the dowry twice, that the woman bringing an action under the will ought to give security that the heir will be defended against the husband.
ergo et maritus idem debebit cauere aduersus mulierem defensu iri, si prior agat.
Therefore, the husband also must give the same security that defense will be made against the woman, if he sues first.
§33.4.1.10Per contrarium apud Iulianum libro trigesimo septimo quaeritur, si socer filio suo exheredato dotem nurus legasset: et ait agi quidem cum marito exheredato de dote non posse, uerumtamen ipsum dotem persecuturum ex causa legati: sed non alias eum legatum consecuturum, quam si cauerit heredes aduersus mulierem defensu iri.
On the contrary, in Julian, in the thirty-seventh book, it is asked, if a father-in-law had bequeathed the dowry of his daughter-in-law to his disinherited son: and he says that indeed an action cannot be brought against the disinherited husband for the dowry, but nevertheless he himself will pursue the dowry by cause of the legacy: but he will not obtain the legacy otherwise than if he gives security that the heirs will be defended against the woman.
et differentiam facit inter eum, cui dos relegata est, et orcinum libertum, cui peculium legatum est: namque eum de peculio posse conueniri ait, heredem non posse, quia peculium desiit penes se habere: at dotis actio nihilo minus competit, etsi dotem desierit habere.
And he makes a distinction between him to whom the dowry is bequeathed back, and an orcinus freedman to whom a peculium is bequeathed: for he says that the latter can be sued concerning the peculium, but the heir cannot, because the heir has ceased to have the peculium in his possession: but the action for the dowry is nonetheless competent, even if the heir has ceased to have the dowry.
§33.4.1.11Idem Iulianus quaerit, si dotem marito relegauerit socer, an dote soluta mulieri legatum mariti extinguatur.
The same Julian asks, if a father-in-law bequeathed the dowry to the husband, whether by the payment of the dowry to the woman the legacy of the husband is extinguished.
et dicit extingui, quia nihil esset iam, quod marito posset praestari.
And he says it is extinguished, because there would now be nothing that could be provided to the husband.
§33.4.1.12Idem quaerit, si dos alii legata esset eamque rogatus sit mulieri restituere, an lex Falcidia in legato locum haberet.
The same asks, if the dowry had been bequeathed to another and he was requested to restore it to the woman, whether the Falcidian law would have place in the legacy.
et dicit habere: sed quod minus est in fideicommisso, mulierem dotis actione consecuturam.
And he says it has: but what is less in the trust-bequest, the woman will obtain by the action for the dowry.
ego quaero, an commoda repraesentationis in hoc legato sic obseruentur atque si dos ipsi mulieri fuisset relegata.
I ask, whether the benefits of immediate payment are observed in this legacy just as if the dowry had been bequeathed to the woman herself.
et puto habere.
And I think they are.
§33.4.1.13Idem Iulianus quaerit, si mulieri dos sit relegata eaque rogata dotem restituere, an Falcidia locum habeat.
The same Julian asks, if the dowry is bequeathed to the woman and she is requested to restore the dowry, whether the Falcidian law has place.
et negat habere, quoniam fideicommissum quoque negat ualere.
And he says it does not have place, since he also denies that the trust-bequest is valid.
quod si praeterea quid uxori legatum sit, putat ex residuo fideicommissum praestari: quod utique habita ratione Falcidiae mulieri praestabitur.
But if, besides, anything was bequeathed to the wife, he thinks that the trust-bequest is provided from the residue: which will certainly be provided to the woman, taking into account the Falcidian law.
sed et marito ex parte heredi instituto a socero dote praelegata legatum dotis Falcidiam passurum, uidelicet quia adhuc constante matrimonio indebita dos uidetur relegata, uerum quod Falcidia reccidit, in familiae herciscundae iudicio maritum praecepturum, quemadmodum totam dotem praeciperet, si non esset relegata.
But also, if the dowry is bequeathed beforehand by the father-in-law to the husband instituted heir for a share, the legacy of the dowry will suffer the Falcidian law, obviously because, while the marriage still stands, an undue dowry seems to be bequeathed, but what falls back because of the Falcidian law, the husband will take beforehand in the action for dividing the family inheritance, just as he would take the whole dowry beforehand if it had not been bequeathed.
§33.4.1.14Mela scripsit, si fundus in dote sit et specialiter sit legatus, mox generaliter dos relegata, non bis, sed semel deberi fundum.
Mela wrote that if an estate is in the dowry and is specifically bequeathed, and later the dowry is generally bequeathed back, the estate is owed not twice, but once.
§33.4.1.15Ibidem Mela coniungit, si fundus in dote fuit locatus a marito ad certum tempus, uxorem non alias fundum ex relegatione consequi, quam si cauerit se passuram colonum frui, dummodo ipsa pensiones percipiat.
In the same place Mela joins, if an estate in the dowry was leased by the husband for a certain time, the wife does not obtain the estate from the bequest back otherwise than if she gives security that she will allow the tenant to enjoy it, provided only that she herself receives the rent.