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Justinian I · The Digest of Justinian §33.4.16.pr

Dowry Legacy to Wife and Proof of Intent to Double Payment

Passage 5018 of 9271 · Latin

Summary

Regarding a husband who received a dowry from his wife's mother with a stipulation for its return and later bequeathed it to his wife, Scaevola ruled that the bequest is invalid unless the wife proves the testator's clear intention to double the payment.

[PAULUS libro secundo ad Uitellium. ] §33.4.16.prQui dotem a matre uxoris acceperat et stipulanti ei promiserat, testamento uxori dotem legauit.
[PAULUS, from the second book on Vitellius.] A man who had received a dowry from his wife's mother and had promised it to her when she stipulated for its return, bequeathed the dowry to his wife in his will.
cum quaesitum esset, an uxor dotis summam consequi posset, respondit Scaeuola non uideri dari uxori, quod necesse sit matri reddi.
When it was asked whether the wife could obtain the sum of the dowry, Scaevola answered that what must of necessity be returned to the mother does not seem to be given to the wife.
alias sic respondit non uideri, nisi manifeste uxor docuisset eam testantis uoluntatem fuisse, ut onerare heredes duplici praestatione dotis uellet.
In another place he answered to the effect that it does not seem to be given, unless the wife clearly proved that such was the intention of the testator, namely that he wished to burden his heirs with a double payment of the dowry.

Notes

  1. §33.4.16.prstipulanti ei — stipulanti is the dative of the present participle of stipulor (to stipulate), and ei refers to the preceding a matre uxoris (the wife's mother). This indicates that the mother, who provided the dowry, had bound the husband by a verbal contract (stipulatio) to return it.
  2. §33.4.16.prnon uideri dari — An accusative with infinitive clause functioning as the object of respondit (answered), with the subject (dotem) being omitted. uideri means 'to be deemed'. It shows the legal interpretation that, since there remains an obligation to return the dowry to the mother, the bequest of the dowry to the wife is not, in principle, recognized as a valid transfer (dari).
  3. §33.4.16.pralias — An adverb meaning 'in another place' or 'on another occasion'. It indicates the existence of another answer by Scaevola to a similar case, or a different record of the same consultation.
  4. §33.4.16.pream testantis uoluntatem fuisse, ut — The ut-clause (ut... uellet) is an appositive noun clause explaining the content of eam uoluntatem (such intention). testantis is the genitive of the present participle testans (the testator). It sets forth the exceptional condition under which the bequest is recognized, namely, if the wife (uxor) proves (docuisset) that the testator clearly intended to burden the heirs with a double payment.

Cite this passage

Justinian I, The Digest of Justinian §33.4.16.pr. Humanitext Reader, https://reader.humanitext.ai/en/text/urn:cts:latinLit:phi2806.phi002.humanitext-lat1:33.4.16.pr

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