Before Our reign, the great variety of lawsuits gave to the Roman legislators constant occasion for new enactments, but We have regulated every part of the legislation of the Empire, and have almost entirely amended it, in some instances by refusing the demands of applicants, and in others by judicial decisions; and We have drawn up many laws for Our subjects. An emergency has induced us to publish this one.
  (1) Gregoria presented a petition to Us setting forth that she had formerly had a husband who died and left her two children, a boy and a girl; and as the boy was particularly attached to her, she thought that it was proper not to leave him without some recompense, but in doing so she did not wish to exceed the bounds of moderation. Therefore as she had not yet been married a second time, she gave him her ante-nuptial donation, but he did not survive her, and died before his mother married again; so that the ancient law, as well as Ours, called both the daughter and the mother to the succession of the deceased minor. No question would have arisen had the mother remained a widow, but she married a second husband who was entitled to the entire usufruct of the ante-nuptial donation, while she had given it in such a way that she could enjoy the use of the same, and that the ownership would vest in her son. The daughter, however, demanded the entire ownership of the donation, not merely as the heir of her brother, but by virtue of what her father had given her mother, alleging that, as the latter had contracted a second marriage, she was not worthy of any confidence, and that on no ground whatever was she entitled to the ownership of the donation. Her mother, on the other hand, declared that the ante-nuptial donation was not at all in dispute, for the property of which it was composed had already been united with that of her son, and, as it were, formed a part of his estate, and not of the donation which no longer existed, and that she was entitled to six-twelfths of the ownership and the usufruct. Nor was this the only question involved in this matter, for the daughter claimed the estate of her brother as against her mother, although the latter demanded half of it, a share to which, where there is only one surviving sister, We have called the daughter along with her mother. The daughter, however, in order to obtain the entire estate of her brother, and strongly relying upon former constitutions asserted: "That if my mother had not married a second time, she could justly claim the estate of her son, but as she had married another husband, she was entirely deprived of the property which her son had obtained from his father's estate, for the reason that if her son had died after the second marriage his estate, no matter from what source it was obtained, would have passed to me, and I would have become the owner of the same by virtue of the two constitutions which have laid down a rule of this kind." The mother, however, replied: "That these constitutions were cruel, and unworthy of the clemency of Our age." However, availing herself of the Constitution promulgated by Us, she alleged that: "This Constitution could not be subordinated to the former ones, and that mothers who have not yet contracted a second marriage are called to the succession along with their surviving children, and are by no means excluded where they have married again," and also, "that this case was an unusual one, in that she had bestowed a gift upon her son by means of exercising her choice, and should be considered rather to have acquired the donation a second time than by this means merely to have made an unreasonable profit." We, after having examined the matter thoroughly, and having taken into consideration the question of selections and inheritances of this kind, have considered it necessary to enact a special law with reference to these matters, by means of which this controversy may be terminated.

  Therefore, in order not to leave the question of choice confused and undetermined, We have seen fit to establish the following order, namely: "Whenever a mother is married a second time, the ownership of the ante-nuptial donation shall be vested in all the children, and the mother shall not be permitted to select any of them, and exclude the others, as she injures all of them at once by her second marriage. Wherefore, in the present case, the entire ownership of the antenuptial donation shall pass to the daughter, and the mother shall retain the use of the same for her lifetime; and, in accordance with Our Constitution (if the mother should die first), the entire ante-nuptial donation shall belong to the daughter; but if the daughter should die first, the mother shall be entitled to the benefit of it by virtue of the agreement relating to children who are not living; the remainder of the estate shall pass to the daughter; and when she dies, it will be transmitted to her heirs who are called to the succession by law.

  There is a question which often arises, and has not yet legally been decided, and we dispose of it by the present law, in order that the greatest advantage may be obtained. Where a mother who has not yet contracted a second marriage gives, or alienates in any other way, a portion of an ante-nuptial donation, or any article included in it, or all of it, not to her son, but to some stranger, and then marries a second husband, it is clear that the alienation remains in abeyance on account of the second marriage; for if there are any surviving children, what has been done will be absolutely void, as the law bestows the ownership of the ante-nuptial donation upon the children, without taking into account anything which their mother may have done to their injury. If, however, all the children of the mother should die, the transaction will stand, not in its entirety, but so far as the share of the ante-nuptial donation is concerned, according to the agreement entered into, where the children did not survive; and this We have been the first to introduce, and have recently inserted it into the laws. Hence the contract will be valid in some respects and void in others; that is to say, it will be valid so far as the share which belongs to the mother by virtue of the agreement made with reference to the death of the children is concerned, but it will be void with reference to what is transmitted to the heirs of the son, so that if the mother alone should succeed her son, then the entire contract will stand.
  (1) For the reason that the disabilities of second marriage are common to both the man and the woman, the man who marries a second time will run the risk of losing the dowry, just as the woman will forfeit the ante-nuptial donation in case she marries a second time. This law which treats of choice, alienation, and pecuniary profit shall be applicable to persons of both sexes.

  Therefore, as the subject of the estates of children, concerning which doubts have been raised, remains to be discussed, We have thought it necessary to dispose of and decide the present question by means of a general law, and for the future, to put an end to all disputes which may arise. And We order that, where any male or female child has made a will, his or her property, exclusive of that composing the ante-nuptial donation, shall go to the appointed heirs in accordance with law, and that in this instance the mother shall not be disqualified from being appointed an heir by her son; but, on the other hand, she is conceded the right to contest the will, if her son should have passed her over or disinherited her without a cause. If, however, he should die intestate, and should have children of his own, his estate shall go to them with the exception of the share to which his mother is entitled; but if he should have no children, his mother shall be called to the succession along with his brothers (in accordance with what has already been decreed by Us), and she shall obtain her share of the estate, whether she intends to marry a second time or not. We do not prescribe severe penalties against women who marry a second time, nor do We reduce them to bitter necessity — which is Unworthy of Our reign — through the fear of lawful nuptials (even though they may be contracted a second time) of abstaining from such a marriage, and descending to forbidden unions, and perhaps even to the corruption of slaves, and, as they are not permitted to live chastely, to illegally indulge in debauchery. Hence We hereby declare invalid the Constitution that We inserted in the Fifth Book of the Code, which treats of the estates of children whom mothers, before contracting second marriages, have seen die; nor the one in the Sixth Book of the same work which appears under the title "Tertullian," and treats of women who have lost their children before contracting a second marriage; but the mother, along with the brothers of the deceased child, shall, by all means, be called to the succession, and shall unquestionably be entitled to her share; nor shall her claims be affected in the slightest degree by reason of her second marriage, and she shall obtain whatever, through consideration of the present case, has caused the enactment of this law, and shall succeed to the estate along with her daughter, and, thus succeeding, shall incontrovertibly be entitled to her share, without any prejudice to her rights due to the expectation of a second marriage, but she shall, with her daughter, be the absolute owner of the estate. Hence the opinion which is best, as well as most praiseworthy and deserving of citation, is that wives should conduct themselves in such an honorable manner that, having once been married, they will preserve inviolate the pledge made to their dying husbands, so that We may consider a woman of this kind worthy of Our respect and not differing greatly from a virgin. But where a woman does not consent to this (when perhaps she is young and cannot restrain herself), or resist the passions of nature, she should not be molested on this account, nor should she be forbidden the benefits of the common laws; but she can honorably contract a second marriage, and abstain from every kind of licentiousness, and she shall enjoy the succession of her children. For just as We do not deprive fathers who marry a second time of the estates of their children — nor is there any law whatever which makes such a provision — so We do not deprive mothers of the estates of their children when they marry a second time, even though their children may die either before or after the second marriage. Otherwise, by the absurdity of the law, even though all the children should die first, without leaving either children or grandchildren of their own, the restriction will continue to exist, and their mother will not succeed them, even if they die without issue; but she will be inhumanly excluded from the succession, and she will have suffered in vain in having brought them forth and reared them, as well as be subjected to punishment because of the contraction of a lawful marriage; and heirs in a distant degree of cognation may succeed to their estates while their mother will be unreasonably excluded. Thus she herself will be entitled to inherit from her children, and so this indulgent and merciful law joins the mothers with their offspring. Therefore, combining the different sections of this law We order that it shall be obeyed, as We class the mother (according to what We have previously stated) with the father, so far as the ante-nuptial donation is concerned; and We hereby order that she shall be subjected to the same penalties in this respect as the father is with reference to the dowry, and that both the father and mother shall, without any hesitation, be entitled to the estates of their children in accordance with their respective claims. Hence mothers shall be entitled to whatever the fathers have, whether they contract a second marriage or not; and a mother shall be called to the succession of her son whether she has already contracted a second marriage, or does so afterwards.
  (1) A woman who marries a second time shall enjoy an antenuptial donation, not as the heir of her son, but on the ground that the donation is only a profit bestowed by the law, and not a part of the estate of her child; but it shall still retain the nature of an ante-nuptial donation. This rule shall also apply to women who now, being widows, have succeeded to the estates of their own children, and have not yet contracted a second marriage, although they may afterwards do so. What has been decreed in this instance shall prevail for all time.

  We think that it is proper to make an addition to the former provisions relating to ante-nuptial donations, where the woman marries a second time. For these laws give a woman who contracts a second marriage the choice of accepting the ante-nuptial donation in accordance with the marriage contract, provided she gives security to her children; or if she is unwilling, or refuses to give such security, the property composing the ante-nuptial donation shall remain in the hands of her children, who shall pay interest on the same to their mother at the rate of four per cent. We, being induced by the number of questions which have arisen on this point, and having found minors subject to risk when the antenuptial donation consists of money, some of them, having no resources, being compelled to sell the entire estates of their fathers in order to discharge the debt of the ante-nuptial donation; and, as this donation should certainly go to them in conformity with law, We have deemed it necessary to provide that, when anyone bestows movable property as an ante-nuptial donation, the mother shall have the use of the same, and shall accept and not reject it; but she cannot collect interest from her children at the above-mentioned rate, and she must take good care of the property, as the law directs, just as the owners themselves would do, and she can retain it in accordance with the ancient laws, during the lifetime of her children, or, if all of them should die, she must observe this present law, and the remainder of the donation shall be preserved for the benefit of her children's heirs. If, however, the entire ante-nuptial donation should consist of money or other personal property, the mother will be entitled to interest at the rate of four per cent, if she furnishes the security already provided for; but she cannot collect the money itself from her children unless the estate of her husband is ample and includes gold, silver, clothing, or anything else which has been allotted to the mother. For, in this instance, We give the mother the choice of either taking the property and furnishing security, or of receiving what We have declared to be a reasonable rate of interest in accordance with former laws as well as the present one. Where the estate consists of both real and personal property, and the ante-nuptial donation is composed partly of money and partly of land, the land shall, by all means, remain under the control of the mother, in order that she may obtain support therefrom; but the personal property shall be disposed of, as We have previously prescribed where the entire ante-nuptial donation consists of chattels.

  We think that it is necessary to plainly establish by law a point which has perhaps already been too harshly decided, and which rarely comes into court for determination; so that the rule may commonly be observed in practice and judgments, in accordance with the public welfare. Where persons are married, and written provision is made for dowries and ante-nuptial donations, and the husband bestows the ante-nuptial donation, and the wife agrees in writing to give a dowry, either to be furnished by herself, by her father, or by some stranger, and it afterwards appears that the dowry was not given to the husband at the time of the marriage, but that he paid all the expenses of the same, and that the marriage was dissolved by his death, it is absolutely unjust — where the dowry was not given to the husband for the wife — that she should receive the ante-nuptial donation. If, however, she did not give the entire dowry, she can take a proportionate share of the donation, after having furnished a corresponding amount of the dowry. As We love equity and justice, and desire them to be observed in all things, and especially in those relating to marriage, for which reason, where a woman has given nothing at all as dowry, she shall receive nothing; and she who has given less than she promised, shall only receive a share proportionate to what she gave. The advantage of the present law is that it decides many cases which are frequently in doubt, and which are now determined in a way appropriate to legislation.
  We desire it to be observed in the case to which it has given rise, as well as in all pending litigation and any which may hereafter take place.

  Hence Your Highness must hasten to carry into effect what We have decreed, and publish everywhere by proclamation, in every city, the contents of this Our ordinance, so that all persons may be informed of what We have prescribed.