The Same, On Sabinus, Book XXXVI. Grandsons, after the death of their paternal grandfather, usually come under the control of his son, that is, of their own father. In like manner, great-grandchildren and other descendants also come under the control of a son, if he is living, and remains in the family; or under that of an ascendant who precedes them in authority. This is also the law not only concerning natural children but also with reference to those who have been adopted.

Ulpianus, On Sabinus, Book XXXVI. When anyone loans money, and agrees that he will only bring suit against the debtor for the amount that he is able to pay, is such a contract valid? The better opinion is that this contract is valid, as there is nothing improper for anyone to consent to be sued for an amount which his means permit.

Ulpianus, On Sabinus, Book XXXVI. If the guardians of a girl send a notice of the termination of a betrothal, I do not think that this will be sufficient to destroy the expectation of marriage, any more than it would be sufficient, of itself, to establish it; unless all this is done with the consent of the girl.

Ulpianus, On Sabinus, Book XXXVI. When this is done, the land or the personal property becomes dotal.

Ulpianus, On Sabinus, Book XXXVI. Where a father promises a dowry for his daughter, and bequeaths it, if he leaves it to her husband should it be considered whether the legacy is valid or not? I do not think that it is valid, for when a debtor bequeaths to a creditor what he owes him, the legacy is void. If, however, he makes the bequest to his daughter, the legacy is valid, for the dowry was due to the husband on account of the promise, and the legacy is due to the daughter. If the daughter should prove that the testator intended to double the legacy, she will be entitled to both, the dowry which her husband has a right to collect and the legacy on account of the bequest. But if the testator intended that she should have one or the other of these, and the woman claims the legacy, and is met by an exception on the ground of bad faith, the heir will not be compelled to pay her the legacy, unless she indemnified him, on this account against her husband bringing an action based on the promise made. Where, however, the husband institutes proceedings, it will not be necessary for her to indemnify the heir, but where the woman brings an action after him, she can be barred by an exception because the dowry has already been paid.

The Same, On Sabinus, Book XXXVI. Ad Dig. 24,1,33 pr.Windscheid: Lehrbuch des Pandektenrechts, 7. Aufl. 1891, Bd. II, § 509, Note 35.Where a husband agrees to pay his wife a certain sum annually, she cannot bring an action on the stipulation during the marriage. But, if while the marriage is still in existence, the husband should die, I think that, because the donation has reference to an annual payment, the stipulation can be enforced under the Decree of the Senate. 1On the other hand, where a wife makes an agreement with her husband to pay him a certain sum every year, this can be refunded to her, and she can bring an action to recover what remains. I think that she can also bring a personal action for the amount to which her husband is enriched; because the annual allowance which a husband pays to his wife is not as important as that which a wife pays to her husband, for this is inconsistent, and contrary to the nature of the sex. 2Ad Dig. 24,1,33,2Windscheid: Lehrbuch des Pandektenrechts, 7. Aufl. 1891, Bd. II, § 509, Note 35.If the husband stipulated with his wife for annual payments, and the woman should die during marriage, it must be said that the donation will become valid under the Address.

Ulpianus, On Sabinus, Book XXXVI. It is established that the husband can have judgment rendered against him for the amount which he is able to pay, but this privilege cannot be granted to his heir;

Ulpianus, On Sabinus, Book XXXVI. The case is different where a defender appears, for it is held that he properly defends the husband if he merely gives to the wife the amount which she could have recovered if she had brought suit against her husband himself. 1Ad Dig. 24,3,14,1Windscheid: Lehrbuch des Pandektenrechts, 7. Aufl. 1891, Bd. II, § 268, Note 10.Pomponius very properly asks, in the Sixteenth Book On Sabinus, where a husband had made an agreement with his wife that judgment should not be rendered against him to the extent of his resources, but for the entire amount; whether such an agreement should be observed. He denies that it should be observed. This opinion seems to me to be correct, for it is better to hold that such an agreement was made contrary to good morals, as it is apparent that it was entered into in violation of the respect which a woman should show to her husband.

Ulpianus, On Sabinus, Book XXXVI. But if a woman obtains a divorce, and issue is joined in an action on dowry, and she returns to her husband, the marriage having been re-established, the action will be terminated, and everything will remain in its former condition.

Ulpianus, On Sabinus, Book XXXIX. Expenses are either necessary, useful, or incurred for purposes of pleasure. 1Those expenses are called necessary which are made through necessity. Where, however, no necessity exists, they come under another head. 2With reference to necessary expenses, it must be remembered that they only decrease the dowry when they are incurred on account of it. When, however, they are not incurred with reference to the dowry, they cannot be taken out of it. 3Labeo says that dikes built in the sea or river come under the head of necessary expenses. Where a mill or a granary, which is required, is built, it should be included among necessary expenses. Hence Falcinius says that if the husband should rebuild a house which was useful to his wife, and which was falling into ruin; or if he should replant an olive-orchard, where the trees had blown down; or if he should enter into a stipulation providing against the occurrence of threatened injury:

Ulpianus, On Sabinus, Book XXXVI. Or if he should plant vines, or takes care of trees or nurseries for the benefit of the land, he will be held to have incurred necessary expenses. 1Generally speaking, we make a distinction, and in fact there is much difference where expenses are incurred to the permanent advantage of the land, and where this is done only for the present time, or on account of the crop for the present year. In the latter instance, the expenses ought to be set off against the crop, but where they have not been incurred temporarily, they should be reckoned among those that are necessary.

Ulpianus, On Sabinus, Book XXXVI. Where it is stated that necessary expenses diminish the dowry, this (as Pomponius says) must be understood to mean not that the property itself is actually diminished, as for instance, land or any other dotal property, for it is absurd to hold that any diminution of the same can occur on account of money expended; but it signifies that the said property ceases to become dotal either wholly, or in part. Hence the husband will remain in possession of it until his claim is satisfied, for no diminution of the same is effected, by operation of law, but merely a diminution of the dowry takes place. When, therefore, shall we admit that a diminution of the dowry occurs by operation of law? This will be the case where the dowry consists of other property than money, for it is reasonable to admit that a diminution of money can take place. Hence, if certain property, after being appraised, is given by way of dowry, the dowry will be diminished by operation of law to the amount of the necessary expenses incurred. This is said to be applicable to expenses incurred with reference to the dowry itself, but if they are made with reference to other matters they do not diminish the dowry. 1Where the wife pays such necessary expenses, can we say that the dowry is increased, or should it be held to remain unimpaired? Where the dowry consists of money, I have no doubt that it should be held to have increased. 2Where the entire dowry is paid without any account having been taken of expenses, it must be considered whether the amount which it is customary to set off against necessary expenses can be recovered by a personal action. Marcellus holds that there is ground for such action, and although many authorities deny that this is the case, still, on account of equity, the opinion of Marcellus should be upheld. 3Useful expenses are those which the husband incurs for the benefit of the property, and which improve the property of the wife, that is to say, her dowry.

Ulpianus, On Sabinus, Book XXXVI. Expenses for the purpose of pleasure are those which the husband incurs to that end, and which are an ornament to the property. Such expenses do not diminish the dowry by operation of law, as those which are useful do, nevertheless, they can be demanded.

Ulpianus, On Sabinus, Book XXXVI. The husband is permitted to demand from his wife expenses incurred for pleasure, if she does not permit him to remove what caused them. For, if the wife desires to retain such improvements, she should refund the amount expended by her husband; or if she does not wish to retain them, she should permit him to remove them, provided they admit of separation. If, however, they cannot be separated, they should be left; for the husband is not allowed to take away any ornaments which he has added to the property, unless by doing so he can make them his own.

Ulpianus, On Sabinus, Book XXXVI. Aristo, however, says with reference to expenses incurred for pleasure, that the husband cannot demand them, even if they have been made with the consent of his wife. 1Sabinus very properly holds that gifts which are prohibited between husband and wife also extend to expenses incurred on account of the dowry.

Ulpianus, On Sabinus, Book XXXVI. A wife is entitled to an action against her husband for the recovery of property fraudulently appropriated, and she can set off the claim in her action against that made by the husband, where he brings suit for the same cause.

Ulpianus, On Sabinus, Book XXXVI. If an estate is not yet entered upon, and the appointment of a guardian is expected under the will disposing of it, the better opinion is that another guardian can be appointed, just as if there was none, nor any expectation of one. 1In testamentary guardianship, the last will of the testator is observed, and if he has appointed several guardians, we accept the last one mentioned. 2Where a man had a son, and a grandson by him, and appointed a guardian for the grandson, there may be a question whether an appointment under such circumstances will not be valid; for example, if one supposes that the son died during the lifetime of his father, and for this reason the grandson will become the heir to his grandfather during the lifetime of the latter. It must be positively held that such a guardianship is confirmed by the Lex Junia Velleia. Pomponius stated in the Sixteenth Book on Sabinus that the appointment of such a guardian is valid. For as the will is valid, the appointment of the guardian made therein will consequently also be valid; that is to say, where the grandson is either appointed heir, or expressly disinherited. 3Where an insane person is appointed a guardian by will, Proculus thinks that the appointment is properly made, if it is stated that he shall act when he ceases to be insane. If, however, he is appointed unconditionally, Proculus denies that the appointment is valid. What Pomponius says is more correct, that is, that the appointment was held to have been properly made, and that the guardian can act when he recovers his reason. 4A slave belonging to another can be appointed a guardian, where it is stated that he shall act if he becomes free. And even if the slave should be appointed without any condition, the acquisition of his freedom is held to be a condition upon which his appointment depends. Where, however, a slave belonging to another is appointed, anyone, however, can maintain that, by doing so, the testator has bequeathed him his freedom by means of a trust. For what difference does it make whether he appoints his own slave, or that of another, since, in the interest of the ward, and in consideration of the public welfare, the freedom of him who is appointed guardian is assumed? Therefore, it can be maintained that freedom through a trust has been conferred upon the slave, unless it is perfectly clear that this was not the intention of the testator.

Ulpianus, On Sabinus, Book XXXVI. Where a son under paternal control died while in the army, after having appointed as his heir his son, who had not yet reached the age of puberty, and also appointed a substitute as well as guardians for him while under the control of his grandfather, the Divine Brothers stated in a Rescript that the substitution was valid, but that the appointment of the guardians was not, for the reason that a soldier in disposing of his estate can make any substitution that he desires, but he cannot do anything injuriously affecting the rights of another.

Ulpianus, On Sabinus, Book XXXVI. The Divine Pius stated in a Rescript that those who were sued on account of a display of liberality could only have judgment rendered against them for an amount which they were able to pay.

Ulpianus, On Sabinus, Book XXXVI. Consent and not cohabitation constitutes marriage.