Ulpianus, On Sabinus, Book XIX. Where an agreement has been made that the dowry shall remain in the hands of the husband, no matter in what way the marriage may be dissolved, provided there are any children, Papinianus stated to Junianus, the Prætor, that in case the marriage was terminated by the death of the husband, it must be held that no agreement had taken place for the retention of the dowry, and that, under such circumstances, an agreement which was prejudicial to the dowry, should not be observed when the death of the husband takes place.

Ulpianus, On Sabinus, Book XIX. If I bequeath to my creditor what I owe him, I being protected against the debt by an exception, the legacy will be valid; for the reason that a release of the exception is held to have been made. This corresponds to what Aristo says, namely, that if my debtor bequeaths to me what is due from him to me in a prætorian action, the legacy will be valid; for the reason that a civil action is granted me instead of an honorary one. 1Marcellus holds, in the Twenty-eighth Book, that if you should bequeath to me what you owe me under a stipulation, the legacy will be valid, and the bequest will not be diminished on account of the Falcidian Law.

Ulpianus, On Sabinus, Book XIX. A provision as follows: “Let my heir pay the money which I have bequeathed, and for the payment of which I have not set a time, at the end of one, two, and three years,” this will not refer to all articles which may be bequeathed, but only to such as can be weighed, counted, or measured. 1And it only applies to those legacies for which time of payment has not been fixed; hence if the legacy was absolutely bequeathed, its time of payment will be prolonged by this addition. 2What if a hundred aurei in cash should be bequeathed to me, shall payment be made on stated days, or all at once? Servius and Labeo say that the legacy is due at once, in cash. Therefore, although this addition may be superfluous, so far as the force and effect of the legacy is concerned, still, it will apply in such a way as to make the legacy due immediately. 3But if the legacy should be left payable by the year or by the month, this provision will not apply, because this legacy has a beginning and an end. 4Where, however, a legacy is bequeathed under a condition, it can be said that the payment of the same at intervals will not be applicable, because the condition is considered uncertain. 5In accordance with this, Trebatius thinks that if a bequest is made to a person to be paid when he is twenty years of age, the provision above-mentioned, as commonly interpreted, does not apply. 6Again, this provision is not applicable where money is left which is in the testator’s chest, or wine which is in his warehouse; because we have stated that it is not operative where any certain kind of property is bequeathed. 7Gallus Aquilius, Ofilius, and Trebatius have given it as their opinion that this rule not only applies to legacies previously made, but also to all those mentioned in the will, which is true.

Ulpianus, On Sabinus, Book XIX. Where a dowry is bequeathed, it is certain that everything is included in it which is embraced in the dotal action. 1Therefore, where an agreement has been made between husband and wife, that, if the marriage should be dissolved by the death of the husband, and a son should be born, the dowry shall remain in the hands of the heir of the husband, and the latter, at his death, shall bequeath the dowry, the agreement will not stand, because the dowry was bequeathed. It should, however, be executed if the dowry was not bequeathed; for the established rule that the condition of the dowry cannot become worse through the intervention of children becomes applicable whenever the woman dies during marriage, or a divorce takes place. 2It is true that there is the advantage of payment where a dowry is bequeathed, as otherwise it would only be payable annually. 3There is also the advantage that, according to the Decree of the Senate, no demand can be made for property donated, provided the testator did not change his mind. 4Moreover, expenses which have been incurred diminish the dowry to that extent by operation of law, and what we have said concerning this does not refer to separate articles, but to the entire dowry. 5Ad Dig. 33,4,1,5Windscheid: Lehrbuch des Pandektenrechts, 7. Aufl. 1891, Bd. III, § 658, Note 3.The bequest of a dowry includes also the dotal action, so that if the husband, while living, restored it to his wife, as is permitted in certain cases, the legacy will be annulled. 6But if slaves, whose value had not been appraised, should be included in the dowry, and they should be dead, the legacy of the dowry, so far as they are concerned, will be void. 7If the wife promised a dowry, but did not give it, and the husband, at his death, should leave it as a preferred legacy to his wife; she will be entitled to nothing more than a release from liability. For if anyone should make a bequest as follows: “I bequeath a hundred aurei, which I have in my chest,” or “Which So-and-So has deposited with me;” and there should be no such sum, it is established that nothing will be due, because the property in question was not in existence. 8If anyone should bequeath the Titian Estate to his wife, as follows, “Since the said land has come into my hands through her;” the land will undoubtedly be due; for where anything is added for the purpose of pointing out something which has already been designated, it is superfluous. 9Celsus in the Twentieth Book of the Digest says that if a father-in-law bequeaths her dowry to his daughter-in-law, and he intends to leave a right of action with reference to the dowry, the legacy will be of no force or effect, as she is already married; but if he wished her to receive the money which she brought as dowry, he says that the legacy will be valid. When, however, she has received her dowry, the husband will, nevertheless, have the right to claim it by means of a prætorian action, whether an heir has been appointed in a suit for partition, or not. I think that, as the father-in-law did not intend his heir to pay the dowry twice, if the woman should bring an action under the will, she should furnish him security to defend the heir against the husband. Therefore, the husband also should furnish security to defend him against his wife, if he should be the first to institute proceedings. 10Ad Dig. 33,4,1,10Windscheid: Lehrbuch des Pandektenrechts, 7. Aufl. 1891, Bd. II, § 484, Note 20.On the other hand, it is stated by Julianus in the Thirty-seventh Book, that if a father-in-law should bequeath the dowry of his daughter-in-law to his disinherited son, while she cannot bring the dotal action against her disinherited husband, he himself can claim the dowry, on the ground of a legacy; but he cannot obtain it unless he furnishes security to defend the heir against the woman. He makes this difference between the person to whom the dowry is bequeathed, and a freedman liberated by the will, and to whom his peculium was bequeathed; for he says that the heir cannot be sued on account of the peculium for the reason that it is no longer in his possession, but the dotal action can, nevertheless, be brought against him, even though he has ceased to have control of the dowry. 11Julianus also asks, where the father-in-law bequeathed the dowry to the husband, and it has been paid to the wife, whether the legacy of the husband will be extinguished. He says that it will be extinguished, because there is nothing more which the heir can pay to the husband. 12He also asks, in case the dowry should be bequeathed to someone else who is charged to return it to the woman, whether the Falcidian Law will apply to the legacy. He says that it will apply, but that she can by the dotal action recover any deficiency which the trust may have suffered on this account. I ask whether the benefit of payment should be taken into consideration in this legacy, as if the dowry had been paid directly to the wife herself. I think that this ought to be done. 13Julianus also asks, if a dowry is bequeathed to a wife, and she is asked to pay it to another, whether the Falcidian Law will apply, and he says that it will not, as the trust is invalid. He thinks, however, that where anything, in addition, is bequeathed to the wife, the residue of the trust should be discharged and therefore what is paid her will be subject to the operation of the Falcidian Law. Where, however, the husband is appointed heir to a portion of the father-in-law’s estate, and the dowry is bequeathed by the latter as a preferred legacy, the bequest of the dowry will be subject to the Falcidian Law, for the reason that, as the marriage still exists, the dowry is considered not to be due to the woman. But whatever has been deducted through the operation of the Falcidian Law can be recovered by the husband in an action for partition, just as he could recover the entire dowry if it had not been bequeathed to his wife. 14Mela says that if a tract of land forming part of the dowry has been especially bequeathed, and after the dowry has been bequeathed in general terms, the land will be due not twice, but only once. 15Mela adds, in the same place, that where land forming a part of a dowry has been leased by the husband for a certain time, the wife cannot obtain it under the bequest, unless she furnishes security to permit the tenant to enjoy it, provided she herself receives the rent.

Paulus, On Sabinus, Book XIX. Where, however, a legacy is left to someone to vest at the time when he shall have children, and he dies leaving his wife pregnant, he will transmit the legacy to his heir.

The Same, On Sabinus, Book XIX. If a bequest is made to anyone to take effect at the time of the death of the heir, the legacy is conditional, so that if the legatee should die during the lifetime of the heir, he will not transmit his right to his own heir. If, however, the bequest should be made to the legatee to take effect at the time of his own death, it is certain that the legacy will pass to his heir.

The Same, On Sabinus, Book XIX. Neratius says, that when freedom is granted to a slave as follows, “If I should have no child at the time of my death, let Stichus be free,” he will be prevented from obtaining his freedom in case a posthumous child is born. But, while the birth is in anticipation, shall we say that the slave remains in servitude; or shall we hold that he will become a freedman by retroactive effect, if no child should be born? I think that the latter opinion should be adopted.

Ulpianus, On Sabinus, Book XIX. He who enters into a stipulation for payment before the next kalends is in the same position as one who stipulates for payment on the kalends.

Ulpianus, On Sabinus, Book XIX. It was decreed and established by the Emperor Severus that, under no circumstances, should anyone be required to show when he obtained the property denounced to the Treasury, but that the informer should prove what he alleges.

Ulpianus, On Sabinus, Book XIX. He is not considered to have acquired anything whose claim is barred by an exception.