[ULPIANUS libro quinto disputationum. ] §33.4.2.prCum quis uxori suae dotem relegat fideique commissum ab ea relinquit, hoc fideicommissum ex commodo, quod ex relegatione mulier sentit, aestimabitur, et ita Celsus quoque libro uicesimo digestorum scripsit.
[ULPIANUS, in the fifth book of disputations.] When anyone bequeaths the dowry back to his wife and leaves a trust-bequest to be performed by her, this trust-bequest shall be valued from the advantage which the woman experiences from the bequest back; and so Celsus also wrote in the twentieth book of the Digests.
quod si necessariae fuerunt impensae, quae ipso iure dotem minuunt, amplius dici potest, si tanta quantitas dotis, quam maritus accepit, ei relegata est, oportere dici etiam eam quantitatem posse fideicommissum erogare, quae ipso iure dotem minuit: esse enim mulierem legatariam nemo est qui dubitet.
But if there were necessary expenses, which diminish the dowry by operation of law, it can further be said that, if as large an amount of the dowry as the husband received has been bequeathed back to her, it ought to be said that even that amount which diminishes the dowry by operation of law can discharge the trust-bequest; for there is no one who doubts that the woman is a legatee.
sed et si non dos, sed pro dote aliquid uxori fuerit legatum, adhuc quasi dos relegata accipitur.
But even if not the dowry, but something instead of the dowry has been bequeathed to the wife, it is still accepted as if the dowry were bequeathed back.
hoc amplius Iulianus scribsit, etsi non fuerit adiectum pro dote esse legatum, hoc tamen animo relictum, adhuc eius esse condicionis.
Julian wrote further than this, that even if it was not added that the legacy was instead of the dowry, but yet it was left with this intention, it is still of that condition.
uxor igitur si rogetur uel dotem uel quod pro dote legatum est uel quod in uicem dotis ei adscriptum est restituere, non cogetur nisi eatenus, quatenus diximus, restituere: et ideo heres instituta rogataque quantitatem hereditatis restituere id demum restituet, quod quantitatem dotis excedit idque quod ex repraesentationis commodo sentit.
Therefore, if the wife is requested to restore either the dowry, or what was bequeathed instead of the dowry, or what was assigned to her in place of the dowry, she will not be compelled to restore it except to the extent we have said; and so, having been instituted heir and requested to restore the quantity of the inheritance, she will restore only that which exceeds the quantity of the dowry and that which she experiences from the advantage of immediate payment.
nam et si quis, cum a nuru dotem accepisset, filium suum heredem instituerit eumque rogauerit, quidquid ad eum ex hereditate peruenisset, restituere, mox morte uxoris dotem fuerit lucratus, id non restituet quod ex dote percepit, quia matrimonii causa id lucratus est, non ex patris iudicio.
For even if someone, when he had received a dowry from his daughter-in-law, instituted his son heir and requested him to restore whatever had come to him from the inheritance, and soon by the death of the wife the son acquired the dowry, he will not restore what he received from the dowry, because he acquired it by reason of marriage, not from the father's will.
§33.4.2.1Mulier dotem promisit quadringentorum et dedit fundos duos in ducenta, praeterea nomina debitorum in residua ducenta: mox maritus eius decedens pro dote fundos ei duos non eos, quos in dotem acceperat, reliquit et praeterea duos illos dotales, quos aestimatos acceperat, reliquit fideique eius commisit, ut, quidquid ad se ex hereditate eius peruenisset, id restitueret Seio cum moreretur: quaerebatur, quantum esset in fideicommisso muliere defuncta.
A woman promised a dowry of four hundred and gave two estates for two hundred, and besides, names of debtors for the remaining two hundred; soon her husband, dying, left her instead of the dowry two estates, not those which he had received in the dowry, and besides, left those two dotal estates which he had received appraised, and committed to her trust that whatever had come to her from his inheritance she should restore to Seius when she died; it was asked how much was in the trust-bequest when the woman died.
dicebam uxorem hanc, quae rogata est, quidquid ad se peruenerit ex testamento, restituere, in ea esse condicione, ut id demum restituere rogetur, quod deducta dotis quantitate ad eam peruenit: dotem enim recepisse eam magis quam accepisse, saluo eo, quod ex commodo repraesentationis ab ea fideicommitti potuit.
I said that this wife, who was requested to restore whatever came to her from the will, was in that condition that she was requested to restore only that which came to her after the quantity of the dowry was deducted; for she had recovered rather than received her dowry, saving that which could be charged as a trust-bequest upon her from the advantage of immediate payment.
proinde id quidem, quod pro dote maritus ei reliquit, non cogetur restituere, nisi plus fuit in eo quam in quantitate dotis: residuum uero, quod praeterea illi relictum est, cum fructibus cogetur restituere.
Therefore, indeed, what the husband left her instead of the dowry she will not be compelled to restore, unless there was more in it than in the quantity of the dowry; but the residue, which was left to her besides, she will be compelled to restore with fruits.
habebit igitur praecipuam dotem cum suis fructibus: id uero, quod extrinsecus ei relictum est, cum fructibus, qui ad eam peruenerint, restituet.
Therefore, she will have her dowry beforehand with its fruits; but what was left to her from outside she will restore with the fruits that came to her.