CASE 81: A Wife Dies

Tituli ex Corpore Ulpiani 6.4-5

(4) Mortua in matrimonio muliere dos a patre profecta ad patrem revertitur, quintis in singulos liberos in infinitum relictis penes virum.

(Excerpts from Ulpian’s Writings)

(4)     When a wife dies during marriage, a dowry that came from her father returns to her father, but her husband keeps one-fifth for each child no matter how many. If the father is no longer alive, it (all) stays with the husband. (5) An “ad­ventitious” dowry (adventicia dos) always stays with the husband unless the giver stipulated that it be returned to him; this form of dowry has the technical name “retained” (recepticia).

1.      Profectitious versus Adventitious. Reread Case 30. Though the vocabulary is unfamiliar, the basic distinction here is not difficult. (1) In the typical case, a profectitious dowry deriving from the wife's father or paternal grandfather (whether or not she was still in his power) is given special treatment in that the giver can reclaim it when the marriage ends through the wife's death; the husband can, however, deduct a fifth for each (surviving?) child (with possi­ble deductions as well for other things; see below). (2) In all other cases, in­cluding when the wife gave her own dowry, the dowry is adventitious, and the wife's death results in the entire dowry remaining with the husband, un­less the giver had expressly arranged for its return.

2.      Why the Distinction? These are the rules. Much harder to explain is the rea­son for them. The default rule, as it appears (although this could be varied by agreement: Tit. Ulp. 6.5), is that the husband keeps the dowry when the mar­riage ends through his wife's death. First of all, why should this be true? Sec­ond, if the exception from the default rule in favor of the wife's present or for­mer pater familias can be explained as an effort to encourage dowry giving within the household, what is the significance of the husband's deductions for their children? The most important problem here is to determine what legal or social functions the dowry is serving, or being made to serve, beyond its somewhat feeble role in providing the wife with maintenance during the mar­riage.

3.      Uxoricide. Do the rules in this Case apply if a husband murders his wife? Most emphatically not! See Pomponius, D. 24.3.10.1: “It is not fair that the husband should expect to profit from the dowry through his crime.” And so too, it should be said, for the reverse situation. This is not a trivial issue; in some parts of the modern world where dowry is still common, husbands have allegedly killed their wives, or vice versa, to gain control of the dowry.

4.      And If the Husband Dies First? Here the default rule is the exact reverse: in principle, the entire dowry returns to the wife (or to her paterfamilias) when the marriage ends through the husbands death. The claim lies against the husbands heir, who can make many of the normal retentions from the dowry but not that for immorality on the part of the wife (Paul, D.

5.      Reclaiming the Dowry. It is important to note that even where the husband is obliged, at the end of marriage, to surrender the dowry, the dowry property does not automatically revert from his ownership. Instead, in the typical case, the couple had to reach agreement on his voluntary surrender of the dowry; and if this failed, then the wife had to sue for it. The relevant lawsuit is called “the action on a wife's property” (actio rei uxoriae). The model formula for this action—the instructions to the iudex in the case—has been reconstructed as follows: “If it appears that the defendant ought to return the dowry or a part of it to the plaintiff, let the iudex condemn the defendant to pay the plaintiff the portion of it that is better and fairer; if this does not appear, let him ab­solve him.” Of particular importance is the phrase “better and fairer” (aequius melius), meaning that it is found to be “better and fairer” that the wife receive this portion rather than that her husband keep it. The jurists describe this ac­tion as a bona fides trial: in arriving at a judgment, the iudex can take into ac­count all legitimate claims and counterclaims of the two parties (Gaius, Inst. 4.62-63). Such an open-ended format provides the legal basis for granting the various retentions discussed in the following Cases and also for many other rules governing how husbands administered dowries. In suing for recovery of dowry, an ex-wife enjoys privileged status over other unsecured creditors of her husband or of his estate; see Ulpian and Paul, D. 42.5.17.1-19 pr.

6.      “What He Can Provide.” Husbands often found it difficult to return dowries, presumably because they had a hard time laying their hands on so much cap­ital.