[PAPINIANUS libro octauo decimo quaestionum. ] §33.4.7.prPater dotem a nuru acceptam filio exheredato legauit: heres patris opposita doli exceptione non ante soluere legatum cogendus est, quam ei cautum fuerit de indemnitate soluto matrimonio.
[From the eighteenth book of Papinian's Questions.] A father bequeathed a dowry received from his daughter-in-law to his disinherited son. The heir of the father, by raising an exception of fraud, must not be compelled to pay the legacy before security has been given to him concerning his indemnity upon the dissolution of the marriage.
§33.4.7.1Sed si, priusquam legatum filio solueretur, mulier dotem suam reciperauit, frustra filius de legato aget.
But if, before the legacy was paid to the son, the wife recovered her dowry, the son will sue for the legacy in vain.
§33.4.7.2Sed si lex Falcidia locum in legato dotis aduersus filium exheredatum habuerit et mulier solutionem ratam fecerit, propter eam quantitatem, quam heres retinuerit, utilis actio dotis ei dabitur.
But if the Falcidian Law has application to the legacy of the dowry against the disinherited son, and the wife has ratified the payment, a beneficial action for the dowry will be given to her for that quantity which the heir has retained.
quod si ratum non habeat, defendi quidem debebit heres a uiro, qui se defensurum promisit: sed si totam litem uir solus subierit, actio iudicati, si cautum non erit, pro ea quantitate, quae iure Falcidiae petenda est, aduersus heredem dabitur.
If, however, she does not ratify it, the heir indeed must be defended by the husband, who promised that he would defend him; but if the husband alone has undergone the entire lawsuit, an action on the judgment, if security has not been given, will be given against the heir for that quantity which must be claimed by the right of the Falcidian Law.
§33.4.7.3Sed si, priusquam legatum filio solueretur, mulier diuertit, quamquam ipsa nondum praecipere dotem possit, non ideo tamen actio filii differtur: quia tunc isdem diebus filio solui dotem responsum est, cum patri pro parte heres exstitit et ad praeceptionem dotis soluto matrimonio, postquam heres exstitit, admissus est.
But if, before the legacy was paid to the son, the wife divorced, although she herself cannot yet pre-take the dowry, the action of the son is not therefore delayed; because it was responded that the dowry was then to be paid to the son within the same days as when he stood as heir to his father for a part, and was admitted to the pre-taking of the dowry upon the dissolution of the marriage after he stood as heir.
§33.4.7.4Si forte per errorem cautio defensionis omissa sit et ex causa fideicommissi filius dotem acceperit, ut indebitum fideicommissum non repeteretur: cautionis enim praestandae necessitas solutionem moratur, non indebitum facit quod fuit debitum: sed non erit iniquum heredi subueniri.
If by chance, through error, the security for defense has been omitted, and the son has received the dowry on the ground of a trust, so that it would not be recovered as an undue trust; for the necessity of providing security delays the payment, it does not make what was due undue; but it will not be inequitable for relief to be granted to the heir.
§33.4.7.5Quid ergo si patris heres soluendo non sit? nonne iuste mulieri dabitur aduersus uirum utilis actio dotis? cui dos perire non debet, quia non interposuit per errorem heres cautionem.
What then if the heir of the father is insolvent? Will not a beneficial action for the dowry justly be given to the wife against the husband? For her, the dowry ought not to perish because the heir, through error, did not interpose the security.