Dictionary of Greek and Roman antiquities. Ed. by William Smith. Illustrated by numerous engravings on wood.

DONATIO PROPTER NUPTIAS., DONATIVUM. 435
missum in the absence of these conditions. No power of disposition over the property included in
person could make a donatio mortis causa, who the donatie.
could not make a testament. The death of the The opinions of modern jurists are much divided
donee before the death of the donor was ipso jure as to the notions, purpose, and law of the donatio
a revocation of the donatio. It would appear as if propter nuptias. The term donatio propter nuptias
the law about such donations was not free from is used, by Bracton (ii. c. 39); and the law, as
difficulty. They were finally assimilated to legacies there stated, is apparently formed upon a Roman
by Justinian, though this lead been done in some original.
particulars before his time. Still they differed in (Cod. 5. tit. 3; Nov. 22. c. 20; 97. c. 1, 2; 98.
some respects from legacies; for instance, such a c. 1, 2; Mackeldey, Lehlrbu~cl, &c. ~ 528, 12th
donation could take effect though there was no ed.; Thibaut, System, &c. ~ 742, 9th ed.; Ortoperson to take the hereditas. A filius familias lan, Explicatioz Historique des Instituts, &c., vol. i.
might with his father's consent make a donatio p. 479.) [G. L.]
mortis causa of his PeculiLmn Profectitium. DONATIO'NES INTER VIRUM ET
The English law of donationes mortis causa is UXO'REM. During marriage neither husband
first stated by Bracton (ii. c. 26) in the very words nor wife could, as a general rule, make a gift of
of the Digest (39. tit. 6. s. 2, &c,); and the pre- anything to one another. The.reason for this rule
sent law is expounded by Lord Hardwicke (Ward was said to be the preservation of the marriage
v:. Turner, 2 Vez. 431); but what he there states relation in its purity, as anil agreement subsisting by
to be the English law is not exactly the law affection, and not maintained by purchase or by
as stated in Bracton.. The rules of donationes gift from one party to the other.. Donationes of
mortis causa in Enzglish law are now pretty well this kind were, however, valid when there were
fixed by various recent decisions. Tradition or certain considerations, as mortis causa, divortii
delivery is considered one essential of such a gift, cause, servi manumittendi gratia. By certain imand the death of the donor in the life: of the donee perial constitutions, a woman could make gifts to
is another essential. The gift is not an absolute her husband in order to, qualify him for certain
gift, but a gift made in contemplation of death, honours. This was a gift "ad processus viri"
and it is revocable. (Dig. 39. tit. 6; C od. 8. tit. (Dig. 24. tit. 1. s. 41; Juv. Sat. i. 39; and the
57; Inst.. 2. tit. 7; Savigny. S5ystezm, &c. iv. 276; note of Heinrich). The wife had the means of
Zeitscrio/filUr G'esc/. Recdztswssse.sccliaft,xii. p. 400, doing this, because when there was no conventio
Ueber L. Seiat 42. pr.; D.e moen. ca. don.; Thibaut, in manum (Gains, iiL 98), a wife retained all her
System, &c. ~ 495, &c. 9th ed.) [G. L.] rights of property wvhich she did not surrender on
DONA'TIO PROPTER NU'PTIAS. The her marriage [Dos], and she might during the
meaning of this term is explained in the Institu- marriage hold property quite distinct from her
tiones (2. tit. 7, ~ 3). It was originally called husband. It was a consequence of this rule as to
Donatio. ante nuptias, because it could not take gifts between husband and wife, that every legal
place after the marriage; but when it was made form by which the gift was affected to be transferred,
legal to increase the donatio after marriage, and as mancipatio, cessio, anld traditio, conveyed: no
even to constitute it altogether after marriage, the ownership; stipulationes were not binding,. and
more comprehensive term dona.tio propte- nlptias acceptilationes were no release. A difficulty might
was used. If a dos had, been given by the wife, remaina as to. usucapion; but the. law provid'ed for
or on the part of the wi;fe. and the husband by this also. If a woman received from a. third perthe terms of the contract- was entitled to it, or to son the property of her husband, and; neither the
a part of it in case of the vwi.fe's death, it was neces- third person nor she nor her husband. knew that
sary that the husband, or sinme person on the part it was the. husband's. property, she- might: acquire
of the husband, should give or secure something to the ownership by usucapion. If- both the giver
the wife which she should have in the event of and the husband knew at the time of the gift
the husband's death:, this was a donatio propter that it was the husband's - opertyv,,and. the wife
nuptias. Justinian's legislation required that the did not know, it mihbt alo. beeome- her property
donatie must be ecqual to what was secured to the by usucapion; but notkif she knew, for in that case
husband in case of the wife's death, and that it the bona fides whibvias essential to the commencemust be increased if the dos was increased during ment of possession i was wanting. If,. before the
the marriage. The husband had the management ownership was acqtire,hby usu.capion, the husband
of the property given as doenatio. Such part of it and wife discovered tht it- was the hsband's,
as consisted of things immoveable he could not though the husband did not. choose to claim it,
alienate or pledge even with the consent of his there was no usucapion for this would have been
wife, unless she ratified her consent after two years, a mere evasion of the law.. If, before the.ownerIf the husband became impoverished during the ship was acquired by ususcapiop, the, wife. alone
marriage, the wife was entitled to the profits of discovered that it was the husband's property, this
the douatio for her support; and it was not liable would not destroy her right to, acquire the prow
to the demands of the creditors. If the marriage perty by usucapion. This, at least, is Savigfiy's,was dissolved by the death of the wife, the bus- ingenious explanation of the passage in Digest
band was entitled to the donatio; unless some 24. tit. 1. s. 44. The strictness of the. law as to
third person, who had made the donatio, was en- these donations was relaxed in the, tine,of $eptinuius
titled to have it by the terms of the agreement. Severus, and they were made valid if the donor
If the husband died, the event had happened with died first, and did not revoke his gift before death.
reference to which the donatio. was made; the wife There were also some exceptions as So the general
had the ususfructus of the donatio, and- the pro, rule, (Dig. 24. tit. 1; Cod. 5, tit. 16 i Savigny,
perty of it belonged to the children of the marriage Zeiesolrift, &c. i. p. 270; Mac].eldey, ~4rut)ch,
if there were any: if there were no children, the &c,. ~ a31, 12th ed.) [G. L.
wife obtained by the death of the husband full DONATI'VUM. [GCoNowIAaIuM.'
F l''