CASE 202: Things Acquired for a Wife
D. 34.2.10 (Pomponius libro quinto ad Quintum Mucium)
Quintus Mucius ait: si pater familias uxori vas aut vestimentum aut quippam aliud ita legavit “quod eius causa emptum paratumve esset,” id videtur legasse, quod magis illius quam communis usus causa paratum esset.
Pomponius: sed hoc verum est non solum, si ipsius viri et uxoris communis usus, sed etiam si liberorum eius aut alterius alicuius communis usus fuerit: id enim videtur demonstrasse, quod proprio usui uxoris comparatum sit. sed quod Quintus Mucius demonstrat “vas aut vestimentum aut quid aliud,” efficit, ut falsa sint quae subiecimus: multum enim interest, generaliter an specialiter legentur haec. nam si generaliter, veluti ita “quae uxoris causa comparata sunt,” vera est illius definitio: si vero ita scriptum fuerit “vestem illam purpuram,” ut certa demonstraret, licet adiectum sit “quae eius causa empta paratave essent,” licet neque empta neque parata neque in usum ei data sint, legatum omnimodo valet, quia certo corpore legato demonstratio falsa posita non peremit legatum. veluti si ita sit scriptum, “Stichum, quem ex venditione Titii emi”: nam si neque emit aut ex alia venditione emit, legatum nihilo minus valet. plane si ita legatum fuerit “vas, aut vestimenta, aut quae uxoris causa parata sunt,” tunc aeque erit vera Quinti Muci sententia: quo casu sciendum est, etiam si alienae res hae fuerint, quas putavit testator suas esse, heredem teneri, ut eas det.(Pomponius in the fifth book on Quintus Mucius)
Quintus Mucius says: If a pater familias legates to his wife a vessel or clothing or anything else in the following way: “what has been bought or acquired for my wife,” he appears to have legated that which was acquired more for her than for common use.
Pomponius (adds): This is the case not only where the use has been common to the husband himself and his wife but also where the use has been common to their children or any other person, for he seems to have indicated (with this phrase) that which was acquired for the particular use of the wife.
However, as Quintus Mucius suggests: (the wording) “a vessel or clothing or something else” casts doubt on our argument; for it makes a great deal of difference whether these things are legated generically or specifically. For if given generically, as for example, “the things that have been acquired for my wife,” his holding is correct.
If, to be sure, the wording was “that purple clothing” so as to indicate particular objects, even though the phrase was added “which have been bought or acquired for her,” the legacy will be absolutely valid even if these had been neither bought nor acquired nor given to her to use; for when a certain item has been given as a legacy, an ancillary erroneous identification does not invalidate it. For example, if the wording was “Stichus, whom I purchased at Titius’s sale,” the legacy is still valid if he (the testator) had either not bought him at all or bought him at another sale.
Clearly, if a legacy were framed as follows: “the vessel or garments or what has been acquired for my wife,” then Quintus Mucius’s opinion will be just as correct. In this case it must be made known that even if these things were someone else’s property, which the testator (falsely) thought were his, the heir is obligated to give them.
1. Acquired Objects and Sex. The jurists construe “things acquired for a wife” as a broad category embracing clothing, jewelry, and other objects purchased for a wife (Ulpian, D. 32.45). Does this suggest a core definition that encompasses things only a woman would use? What about a litter, a sedan chair, or the slaves that would carry the wife in one of these? See Ulpian, D. 32.49 pr. (yes). Might things intended for use by men be included in such a legacy if the husband had in fact given them to his wife for her use? See Ulpian, D. 32.49.1 (yes).
2.face="Times New Roman"> Mucius’s Holding.
What precise distinction does Quintus Mucius draw in the first part of this case? Does he mean that the inclusion in the legacy depends in the final analysis on its exclusive use by the wife, rather than on the nature of the object itself? Ulpian elsewhere says (D. 32.49.2) that if an object was used by husband and wife in common, but he had made a practice of lending it, so to speak, for her use, it is included in the category of things acquired for a wife. Is this consistent with Mucius’s holding?3. Generic versus Specific. Quintus Mucius points out that his holding applies only when the legacy has been made generically through a phrase such as “the things acquired for my wife,” but not when specific items are named. Why is this so? Pomponius adds that if the legacy reads “the vessel or garments or things that have been acquired for my wife,” the same principle holds. Why? Is the latter wording easier to rule on than the wording “the things acquired for my wife”?
4. Generic and/or Specific. Does it matter whether the testator places “and” between a list of specific legated items and the catchall category “what has been acquired for my wife” or leaves this out? See Paul. D. 32.46 (yes). What is the difference? Is this an application of the plain-meaning rule?
5. Mistake. What rule does Mucius apply if the testator specified certain items described as “acquired for my wife” when in fact one or more of these items was not so acquired? Is his rule consistent with his other holdings in this Case? Suppose the testator legated something he erroneously thought belonged to him? Does the Case suggest the heir must seek to acquire this for the legatee or, if it cannot be acquired, pay its value? (The answer is yes.)
6. Presumption of Innocence.
Consider the famous presumption of Quintus Mucius, as reported by Pomponius in Case 59. Does this seem to concern the inclusion of the items of disputed origin in a generic legacy of “things acquired for a wife”? Quintus Mucius evidently wants to avoid encouraging challenges to the will based on allegations about the wife's infidelity. Does this seem to privilege such property excessively?7. The Falcidian Exception. The lex Falcidia specifically exempted “things acquired for a wife” from the calculation of the quarta. Was such property perhaps regarded as informally “owed” to the wife, to be repaid in a manner analogous to that of the dowry?