CASE 200: Legacy in Place of a Dowry
D. 33.4.6 (Labeo libro secundo Posteriorum a lavoleno Epitomatorum)
(pr.) Cum scriptum esset: “quae pecunia propter uxorem meam ad me venit quinquaginta, tantundem pro ea dote heres meus dato,” quamvis quadraginta dotis fuissent, tamen quinquaginta debere Alfenus Varus Servium respondisse scribit, quia proposita summa quinquaginta adiecta sit.
(1) Item ei, quae dotem nullam habebat, vir sic legaverat: “quanta pecunia dotis nomine” et reliqua, “pro ea quinquaginta heres dato.” deberi ei legatum Ofilius Cascellius, item et Servii auditores rettulerunt: perinde habendum esse ac si servus alicui mortuus aut pro eo centum legata essent. quod verum est, quia his verbis non dos ipsa, sed pro dote pecunia legata videtur.(Labeo in the second book of his Posthumous Works as Epitomized by Javolenus) (pr.) The terms (of a will) said: “As to the 50 (thousand sesterces) in cash that came to me on account of my wife, let my heir give (her) the same amount in place of this dowry.” Although the (actual) dowry amounted to 40, nevertheless Alfenus Varus records Servius’s response that he (the heir) owes 50, since the amount intended was set at 50.
(1) Likewise, if a woman had no dowry and her husband made a legacy to her in the following manner: “As much money as is in the dowry account, etc., in place of that let my heir give 50,” Ofilius, Cascellius, and the students of Servius held that the legacy was due to her, the same rule being applied as when a legacy was made of a slave who (subsequently) died or of 100 in place of him. This view is correct because by these words it is not the dowry itself but money in place of a dowry that was legated.
1. Pro Dote.
The husband might frame a legacy in terms of a monetary amount instead of the actual items of property in the dowry. This device possessed all the advantages of the legatum dotis over the actio rei uxoriae. In addition, the usual expenses associated with the dowry were not deducted from its value (compare Cases 84-88). Nor was the value lowered by loss of an item such as the death of a slave. Finally, the amount did not have to be linked to the actual value of the dowry. Indeed, as this Case shows, where the testator provided a cash estimate (see Justinian, Inst. 2.20.15), there did not have to be an actual dowry at all. Why is this so? Where the legacy exceeds the actual dowry, should the excess still be regarded as a debt?2. The Amount Intended. Servius holds that if the amount stipulated in the legacy exceeds the value of a dowry, it is valid, because, in the hypothetical case given, “the amount intended was set at 50.” Does this refer to the intention of the testator? Why should this intent be decisive? Would it matter if the amount intended was less than the value of the dowry?
3. Old and New Reasoning. How convincing is the analogy to the situation where the legacy is of a slave (worth 50, say) or of 100, where the slave dies before the legacy is conveyed? Is Labeo's justification, that the wording indicates the legacy was not of the actual dowry, any better? For instance, could the wife theoretically claim both the legacy and her dowry?
D. 32.100.2 (lavolenus libro secundo ex Posterioribus Labeonis)
“Uxori meae vestem, mundum muliebrem, ornamenta omnia, aurum argentum quod eius causa factum paratumque esset omne do lego.” Trebatius haec verba “quod eius causa factum paratumque est,” ad aurum et argentum dumtaxat referri putat, Proculus ad omnia, quod et verum est.
(Javolenus in the second book from the Posthumous Works of Labeo)
“To my wife, I give and legate the clothing, women’s toiletries, all the jewelry, gold and silver, that has been made and acquired for her, all of it.” Trebatius believes that the words “that has been made and acquired for her” refer only to the gold and silver; Proculus (believes they refer) to everything, which is also the correct view.
1. Testator’s Intent.
Which of the two opinions, that of Trebatius or that of Proculus, is better supported by the text of the will given in this passage? Are the jurists deciding intent on the basis of the wording, or do they rely instead on what they take to be common usage in such legacies? Does the ban on gifts to spouses (Cases 61-65) help explain the ruling here?2. Categorical Bequests. The jurists elaborated complex categories for the individual rubrics of clothing, lady's personal-hygiene items, and jewelry named in such bequests to wives. “Clothing,” for instance, was defined not only in terms of fabric or material but also by its purpose and use (Ulpian and Paul, D. 34.2.23-25). Does this building of categories suggest that social convention was decisive in construing an individual testators intent? Note that Paul (D. 34.2.26) distinguishes clothing from jewelry on the basis of custom, even though some clothing is used for ornament rather than covering the body, and some jewelry for covering the body rather than ornament. Suppose a testator specified an item as jewelry that most people would consider to be an article of clothing. What would be the result at law? See also Case 58.
3.face="Times New Roman"> Who Wears Women’s Clothing? Pomponius (D. 34.2.33) discusses the following problem: A testator, who was “accustomed to wear certain clothing that is also appropriate to women,” legates to someone “my womens clothing”; does the legacy include the women's clothing he kept for his own use? According to Ulpian (D. 34.2.23.2), womens clothing was defined as that which a male could not wear “without incurring criticism”; and we can safely assume that the testator, in his personal life, violated that criterion. The issue in Pomponius's problem is this: should the words of the will be interpreted in their plain meaning, or should evidence for the specific intention of the testator be examined? Pomponius concludes: “the legacy is what the testator meant, not what is actually male or female.” This ought to mean that evidence of a testator’s specific intent is relevant to interpreting a will. Is this result a good one? Note that if, during his life, the testator had promised by contract to convey to someone “all my womens clothing,” his own ball gowns would have been included (Pomponius, D. 45.1.110.1). Inconsistent?