[IDEM libro nono ad Quintum Mucium. ] §34.2.34.prScribit Quintus Mucius: si aurum suum omne pater familias uxori suae legasset, id aurum, quod aurifici faciundum dedisset aut quod ei deberetur, si ab aurifice ei repensum non esset, mulieri non debetur.
[THE SAME, in the ninth book of his commentary on Quintus Mucius.] Quintus Mucius writes: if a father of a family has bequeathed all his gold to his wife, that gold which he had given to a goldsmith to be worked, or which was owed to him, if it has not been returned to him by the goldsmith, is not due to the woman.
РOMPONIUS. hoc ex parte uerum est, ex parte falsum.
POMPONIUS: This is partly true, and partly false.
nam de eo, quod debetur, sine dubio: ut puta si auri libras stipulatus fuerit, hoc aurum quod ei deberetur ex stipulatu, non pertinet ad uxorem, cum illius factum adhuc non sit: id enim, quod suum esset, non quod in actione haberet, legauit.
For concerning that which is owed, there is no doubt: as for instance, if he had stipulated for a certain number of pounds of gold, this gold which was owed to him by virtue of the stipulation does not belong to the wife, since it has not yet become his property; for he bequeathed that which was his own, not what he held in action.
in aurifice falsum est, si aurum dederit ita, ut ex eo auro aliquid sibi faceret: nam tunc, licet apud aurificem sit aurum, dominium tamen non mutauit manet tamen eius qui dedit et tantum uidetur mercedem praestaturus pro opera aurifici: per quod eo perducimur, ut nihilo minus uxori debeatur.
In the case of the goldsmith, it is false, if he gave the gold in such a way that the goldsmith should make something for him out of that very gold; for then, although the gold is with the goldsmith, yet the ownership has not changed, but remains that of the person who gave it, and he is deemed merely to be going to pay a wage for the goldsmith's work; by which we are led to the conclusion that it is nonetheless due to the wife.
quod si aurum dedit aurifici, ut non tamen ex eo auro fieret sibi aliquod corpusculum, sed ex alio, tunc, quatenus dominium transit eius auri ad aurificem (quippe quasi permutationem fecisse uideatur), et hoc aurum non transibit ad uxorem.
But if he gave the gold to the goldsmith, not however so that some small article should be made for him out of that gold, but out of other gold, then, insofar as the ownership of that gold passes to the goldsmith (since he indeed seems to have made an exchange), this gold will also not pass to the wife.
§34.2.34.1Item scribit Quintus Mucius, si maritus uxori, cum haberet quinque pondo auri, legasset ita: 'aurum quodcumque uxoris causa paratum esset, uti heres uxori daret', etiamsi libra auri inde uenisset et mortis tempore amplius quam quattuor librae non deprehendentur, in totis quinque libris heredem esse obligatum, quoniam articulus est praesentis temporis demonstrationem in se continens.
Likewise Quintus Mucius writes: if a husband, when he had five pounds of gold, had bequeathed to his wife in this manner: "whatever gold has been prepared for my wife's sake, let the heir give it to my wife", even if one pound of gold had been sold from it and at the time of his death no more than four pounds are found, the heir is bound for the whole five pounds, since the word contains in itself a designation of the present time.
quod ipsum quantum ad ipsam iuris obligationem pertineat, recte dicetur, id est ut ipso iure heres sit obligatus.
This itself, as far as the legal obligation itself is concerned, will be rightly said, that is, so that the heir is bound by operation of law.
uerum sciendum, si in hoc alienauerit testator inde libram, quod deminuere uellet ex legato uxoris suae, tunc mutata uoluntas defuncti locum faciet doli mali exceptioni, ut, si perseuerauerit mulier in petendis quinque libris, exceptione doli mali submoueatur.
But it must be known that if the testator alienated one pound from it for this reason, because he wished to diminish his wife's legacy, then the changed intention of the deceased will make room for the plea of fraud, so that if the woman persists in claiming the five pounds, she may be barred by the plea of fraud.
sed si ex necessitate aliqua compulsus testator, non quod uellet deminuere ex legato, tunc mulieri ipso iure quinque librae auri debebuntur nec doli mali exceptio nocebit aduersus petentem.
But if the testator was compelled by some necessity, and not because he wished to diminish the legacy, then five pounds of gold will be due to the woman by operation of law, nor will the plea of fraud prejudice her as the claimant.
§34.2.34.2Quod si ita legasset uxori 'aurum quod eius causa paratum erit', tunc rectissime scribit Quintus Mucius, ut haec scriptura habeat in se et demonstrationem legati et argumentum: ideoque ipso iure alienata libra auri amplius quattuor pondo non remanebunt in obligatione, nec erit utendum distinctione, qua ex causa alienauerit testator.
But if he had bequeathed to his wife in this manner: "the gold which shall be prepared for her sake", then Quintus Mucius writes most correctly that this wording contains in itself both the designation of the legacy and its restriction; and therefore, if one pound of gold is alienated, by operation of law no more than four pounds will remain in the obligation, nor will there be any need to make a distinction as to the reason for which the testator alienated it.