[SCAEUOLA libro uicensimo septimo digestorum. ] §44.4.17.prPater pro filia dotem promiserat et pactus erat, ut ipse aleret filiam suam eiusque omnes: idem homo rusticanus genero scripsit quasi usuras praeteritas ex dotis promissione: quaesitum est, cum ipse filiam suam exhibuerit et maritus nullam impensam fecerit, an ex chirographo ex stipulatu agenti genero exceptio obstare debeat.
[SCAEUOLA in the twenty-seventh book of Digests.] A father had promised a dowry for his daughter and had agreed that he himself would support his daughter and all her household. The same man, an uneducated rustic, wrote to his son-in-law, as if for past interest due from the promise of the dowry. The question arose whether, since the father himself had maintained his daughter and the husband had incurred no expense, an exception ought to bar the son-in-law when suing on the stipulation based on the written document.
respondit, si, ut proponatur, pater, cum exhiberet, per errorem promisisset, locum fore doli mali exceptioni.
He replied that if, as proposed, the father, while maintaining her, had made the promise through error, there would be room for the exception of fraud.
§44.4.17.1Auus nepotibus ex filia legauit singulis centena et adiecit haec uerba: 'Ignoscite, nam potueram uobis amplius relinquere, nisi me Fronto pater uester male accepisset, cui dederam mutua quindecim, quae ab eo recipere non potui: postremo hostes, qui mihi fere omnem substantiam abstulerunt'. quaesitum est, an, si aui heres ab his nepotibus patris sui heredibus petat quindecim, contra uoluntatem defuncti facere uideatur et doli mali exceptione summoueatur.
A grandfather bequeathed to each of his grandchildren by his daughter one hundred thousand sesterces, and added these words: "Forgive me, for I could have left you more, if your father Fronto had not treated me badly, to whom I had given fifteen thousand as a loan, which I could not recover from him; and finally, the enemy, who took away almost all my property." The question arose whether, if the grandfather's heir should demand the fifteen thousand from these grandchildren as heirs of their father, he would seem to act contrary to the will of the deceased and should be barred by the exception of fraud.
respondit exceptionem obstaturam.
He replied that the exception would block the claim.
§44.4.17.2Ex quadrante heres scriptus a coherede ex dodrante instituto emit portionem certa quantitate, ex qua aliquam summam in nominibus ex kalendario uti daret, stipulanti spopondit: defuncto uenditore hereditatis falsum testamentum Septicius accusare coepit et hereditatem ab emptore petit et ne quid ex ea minueret, impetrauit: quaesitum est, cognitione falsi pendente an heredes ex stipulatu petentes doli exceptione summouentur.
An heir appointed to a quarter share bought the portion of his co-heir appointed to a three-quarters share for a certain price, and promised by stipulation to the other party that he would pay a certain sum from the debts listed in the ledger out of that price. After the seller of the inheritance died, Septicius began to accuse the testament of being a forgery, claimed the inheritance from the buyer, and obtained an order that the buyer should not diminish anything from it. The question arose whether, while the inquiry into the forgery was pending, the heirs of the seller suing on the stipulation should be barred by the exception of fraud.
respondit heredes uenditoris, si ante euentum cognitionis pergant petere, exceptione doli mali posse summoueri.
He replied that the heirs of the seller, if they proceed to demand before the outcome of the inquiry, can be barred by the exception of fraud.
§44.4.17.3Marito et filio communi ex parte dimidia scriptis heredibus filiam suam ex priore matrimonio ita heredem instituit: 'Maeuia filia mea ex sex unciis heres mihi esto, si cum coheredibus tuis parem rationem feceris pro mea portione in diem mortis meae eius actus, qui pendet ex tutela tua, quam Titius pater meus, auus tuus administrauit'. quaesitum est, an, quia sub condicione instituta filia esset, si omitteret hereditatem, uti saluam tutelae actionem haberet, legata sibi a matre data consequi possit.
Having appointed her husband and their common son as heirs to a half share, she appointed her daughter from a prior marriage as heir in these words: "Let Maevia my daughter be my heir for six ounces, if you render a fair account to your co-heirs, for my share up to the day of my death, of that administration which depends on your guardianship, which Titius my father, your grandfather, administered." The question arose whether, since the daughter was appointed under a condition, if she should reject the inheritance in order to keep her action on guardianship intact, she could obtain the legacies bequeathed to her by her mother.
respondit secundum ea quae proponerentur eam, de qua quaereretur, contra uoluntatem petere et ideo exceptionem doli obstaturam.
He replied that, according to the facts proposed, she about whom the question was raised would be suing contrary to the intention of the testatrix, and therefore the exception of fraud would block her claim.