A gift from husband to wife, or from wife to husband, was void (with some few exceptions). The transaction was the same as if nothing had been done. The Donatio mortis causft, or divortii caus8, in contemplation of death, or in consideration of divorce, was a valid gift.
There could be no dos (marriage portion), unless there was justum matrimonium. The term dos comprehended both what the wife brought to the husband on her own account, and what was given or contracted to be given by any other person, in consideration and for the purposes of the marriage. (' Dig.; 23. 3. 76.) When the dos came from the wife's father, it was called profecticia, but when from any other person, adrenticia. It was a general rule that the dos adrenticia remained with the husband, unless there was some agreement to the contrary, in which case it was called dos recepticia. What came into the husband's possession, not as dos, was included in the term Pa.rapherna (aapcioqva), or Paraphernalia, and did not become the property of the husband. All finds of property could be the ambject of dos. If they were things that could be estimated by number, weight, and measure (res fungibiles), the husband took them, subject to the liability in case of a dissolution of the marriage, of restoring things to the same number, weight, and measure. Things given as dos might be valued or not valued (mstimata and Intestimata); in case they were valued, the com plete ownership of them passed to the husband, inasmuch as the valuation was in the nature of a sale, and the husband could dispose of the things as he pleased, subject only to the liability of restoring their value, in case of a dissolution of the marriage. If the things were not valued, and any loss ensued, without the fault or culpable neglect of the husband, the loss fell on the wife. In the case of things
which were not fungibilea or not valued, the ownership during the marriage might be considered as in the husband, and as returning to the wife on the dissolution of the marriage. In such a case the husband could manage the wife's property as his own ; he enjoyed the profits of it during the marriage, and could sell it. With some ex ceptions, however, he could not sell or dispose of the wife's immove able property which was included In the dos (dotale praedium). (Gains, ii. § 63 ; Instit.,' ii., tit. 8.) The portion became the husband's on the solemnisation of the marriage, and he had the profits of it during the marriage. In the case of divorce the portion, or apart of it, according to circumstances, was restored. In case the wife died during the subsistence of a marriage, part returned to her father, and part remained to the children of the marriage, if any ; but it might, by the terms of the marriage contract, become the husband's, even if there were no children of the marriage. As to the portion of the wife, what ever might have been originally the rights of the husband over it by virtue of the marriage, it was in later times the subject of the express stipulations of the marriage settlement. The questions of law which arose ou the subject of the dos were numerous and sometimes difficult.
In enumerating the modes by which a man may acquire property per unirersitchem, Gains mentions marriage, by which a woman comes in manure riri, and he observes that all things pass to the husband. The meaning of this passage is perhaps not quite certain ; but it is partly explained by what has been already said.
(Dig. 23, tit. 3, `De Jure Dotium ; ' tit. 5, 'De Fundo dotali ; ' Ulpian, Fray., vi, De Dotibus; ' Thibaut, System des Pandekten-Rechts. See Lindley'e translation.)