De confirmando tutore vel curatore
(Concerning the confirmation of a guardian or a curator.)
1 Modestinus libro sexto excusationum. Ἵνα μηδὲ περὶ τῶν βεβαιωθῆναι δυναμένων ἐπιτρόπων παραλείψωμεν, βραχέα καὶ περὶ τούτων σκεψώμεθα. 1Εἰσί τινες οἱ διδόμενοι ὀρθῶς κατὰ διαθήκας ἐπίτροποι, τουτ’ ἔστι καὶ ὑφ’ ὧν ἐχρῆν καὶ οἷς ἐχρῆν καὶ ὃν τρόπον ἐχρῆν καὶ ὅπου ἐχρῆν. πατὴρ γὰρ υἱοῖς ἢ ἐκγόνοις, οὓς ἔχει ἐν ἐξουσίᾳ, ὀρθῶς δίδωσιν ἐπίτροπον ἀλλ’ ἐν διαθήκῃ. ἐὰν δὲ ᾖ πρόσωπον τοιοῦτον ὃ μὴ δύναται δοῦναι, οἷον μήτηρ ἢ πάτρων ἢ ἀλλότριός τις, ἢ πρόσωπον ᾧ μὴ δύναται δοῦναι, οἷον πατὴρ υἱῷ τῷ μὴ ὄντι ἐν ἐξουσίᾳ ἢ θυγατρί, ἢ ἐὰν εἴπῃ ‘παρακαλῶ ἐπιμέλεσθαι τῶν πραγμάτων’, ἢ ἐν κωδικίλλοις μὴ βεβαιωθεῖσι δῷ ἐπίτροπον ἢ κουράτορα, τότε τὸ ἐνδέον ἀναπληροῦσθαι ἐκ τῆς τοῦ ὑπατικοῦ ἐξουσίας αἱ διατάξεις συνεχώρησαν καὶ κατὰ τὴν γνώμην βεβαιοῦσθαι τοὺς ἐπιτρόπους. 2Καὶ ἐὰν μὲν πατὴρ ᾖ ὁ δεδωκώς, περαιτέρω οὐδὲν ὡς ἐπὶ τὸ πλεῖστον πολυπραγμονεῖ ὁ ἡγούμενος, ἀλλὰ ἁπλῶς αὐτὸν βεβαιοῖ· ἐὰν δὲ ἄλλος τις, τότε πολυπραγμονεῖ, τὸ πρόσωπον εἰ ἔστιν ἐπιτήδειον. 3Ἔτι εἰδέναι δεῖ ὅτι κουράτωρ κατὰ διαθήκας οὐδὲ ὑπὸ πατρὸς ὀρθῶς δίδοται, ἀλλὰ δοθεὶς εἴωθε βεβαιοῦσθαι ὑπὸ τοῦ ἡγουμένου.
1 Modestinus, Excuses, Book VI. In order that we may not leave anything having reference to the confirmation of guardians undiscussed, we will make a few observations on this subject. 1Certain guardians are properly appointed by will, that is to say, where this is done by those who have a right to do so and for those who must accept them, and in the manner and at the place where this should be done. A father can lawfully appoint a guardian for his children or his grandchildren who are under his control, but he must do this by will. Where, however, a person makes the appointment who cannot do so, as for instance, a mother, a patron, or a stranger, or where a guardian is appointed for anyone illegally; for example, when a father appoints a guardian for his son or daughter who is not under his control, or if he should say: “I request you to take charge of the affairs of my son”, or if he should appoint a guardian or curator by a codicil which is not confirmed by a will; in these instances, the Imperial Constitutions permit anything that may be lacking to be supplied by the consular authorities, and the guardians to be confirmed in accordance with the intention of the testator. 2And if, indeed, the father should appoint a guardian without making any complete and thorough investigation as to his character and qualifications, he shall be confirmed without ceremony. Where, however, anyone else appoints one, inquiry shall be made whether he is fit for the place. 3It is also necessary to know that, while a curator cannot legally be appointed by will, still, if he is appointed, it is customary for him to be confirmed.
2 Neratius libro tertio regularum. Mulier liberis non recte testamento tutorem dat: sed si dederit, decreto praetoris vel proconsulis ex inquisitione confirmabitur nec satisdabit pupillo rem salvam fore. 1Sed et si curator a matre testamento datus sit filiis eius, decreto confirmatur ex inquisitione.
2 Neratius, Rules, Book III. A woman cannot legally appoint a guardian by will, but if she should do so, he shall be confirmed by the decree of the Prætor or the Proconsul, after an examination has been made; and he shall not be required to give security to the ward for the preservation of his property. 1If a curator should be appointed by the will of a mother for her children, the appointment will be confirmed by a decree after an investigation has been made.
3 Iulianus libro vicesimo primo digestorum. Qui a patre tutor scriptus est aut non iusto testamento aut non ut lege praecipiebatur, confirmandus est ad tutelam gerendam perinde ac si ex testamento tutor esset, id est ut satisdatio ei remittatur.
3 Julianus, Digest, Book XXI. Where a guardian is appointed by a father in a will which is not regular, or which does not conform to the law, he must be confirmed for the purpose of administering the guardianship, just as if he had been appointed guardian under the will; that is to say, he will be excused from giving security.
4 Paulus libro singulari de excusationibus tutelarum. Tutelarum. si patronus vel quivis extraneus impuberi, quem heredem instituerit, tutorem dederit et extra ea nihil in bonis habeat pupillus, non male dicetur iudicium eius sequendum esse, qui et personam eius, quem tutorem esse voluerit, noverit et impuberem ita dilexit, ut eum heredem institueret.
4 Paulus, On the Excuses of Guardianship. When a patron or a stranger appoints a guardian for a minor whom he has named as his heir, and the ward has no other property; it is well to hold that his wishes should be carried out, as he was acquainted with the person whom he wished to be the guardian, and he was so much attached to the minor that he made him his heir.
5 Papinianus libro undecimo quaestionum. Tutores a patruo testamento datos iussit praetor magistratus confirmare: hi cautionem quoque accipere debuerunt nec voluntas eius, qui tutorem dare non potuit, neglegentiam magistratuum excusat. denique praetor non ante decretum interponere potest quam per inquisitionem idoneis pronuntiatis. unde sequitur, ut, si tutelae tempore solvendo non fuerunt, in id, quod de bonis eorum servari non possit, contra magistratus actio decernatur.
5 Papinianus, Questions, Book XI. The Prætor orders magistrates to confirm guardians appointed by the will of a paternal uncle. They should also take security, nor will the wishes of a party who could not appoint a guardian excuse the negligence of the magistrate. Finally, the Prætor cannot issue his decree before the guardians, by means of an examination, shall have been declared eligible. Whence it follows that if they should not be solvent at the time the guardianship was established, an action will be granted against the magistrates for the amount which cannot be made good out of the property of the guardians.
6 Idem libro quinto responsorum. Si filio puberi pater tutorem aut impuberi curatorem dederit, citra inquisitionem praetor eos confirmare debebit.
6 The Same, Opinions, Book V. Where a father appoints a guardian for a son who has arrived at puberty, or appoints a curator for one who has not yet done so, the Prætor should confirm him without any inquiry.
7 Hermogenianus libro secundo iuris epitomarum. Naturali filio, cui nihil relictum est, tutor frustra datur a patre nec sine inquisitione confirmatur. 1Si quaeratur, an ex inquisitione recte datus sit tutor, quattuor haec consideranda sunt: an hic dederit qui dare potuit, et ille acceperit cui fuerat dandus, et is datur cuius dandi facultas erat, et pro tribunali decretum interpositum.
7 Hermogenianus, Epitomes of Law, Book II. A guardian cannot legally be appointed by a father for his natural son, to whom nothing has been left, nor can he be confirmed without an investigation. 1Where the question is asked whether a guardian is legally appointed after an examination, the following four matters should be taken into consideration, namely: whether the party who made the appointment had a right to do so; whether he who was appointed has accepted; whether the power of appointing the other party was vested in him; and whether the decree of confirmation was rendered in court.
8 Tryphoninus libro quarto decimo disputationum. In confirmando tutore hoc praetor inquirere debet, an duraverit patris voluntas: quod in facili est, si proximo mortis tempore tutores non iure vel curatores scripserit pater. nam si ante annos, ut spatio medio potuerit facultatium dati non iure tutoris a patre fieri deminutio, vel morum ante celata vel ignorata emersit improbitas, aut inimicitiae cum patre exarserunt,
8 Tryphoninus, Disputations, Book XIV. In the case of confirmation of a guardian, the Prætor should ascertain whether the intention of the father continued to exist. This is readily done where the latter illegally appointed either guardians or curators, at the time of his death; for if he appointed them several years before, and, in the meantime, a diminution of the property of the parties illegally appointed by him has taken place, or their bad character previously concealed, or unknown, has been discovered, or where hostility against the father has arisen;
9 Paulus libro singulari de cognitionibus. vel cum fisco aliquem contractum damnosum miscuissent,
9 Paulus, Concerning Judicial Inquiries. Or where they have incurred some liability to the Treasury through a contract,
10 Tryphoninus libro quarto decimo disputationum. utilitatem pupillorum praetor sequitur, non scripturam testamenti vel codicillorum. nam patris voluntatem praetor ita accipere debet, si non fuit ignarus scilicet eorum, quae ipsa praetor de tutore comperta habet. quid denique si postea de eo, quem pater testamento codicillisve non iure dedit, scripsit tutorem esse nolle? nempe non sequitur primam voluntatem praetor, a qua pater discessit.
10 Tryphoninus, Disputations, Book XIV. The Prætor shall consult the interest of the wards, and not inflexibly adhere to the terms of the will or the codicil, as he should consider the intention of the father, where he was not ignorant of those things which the Prætor himself has learned concerning the guardians. Finally, what if, after the father has illegally appointed a guardian by a will or codicil, he should say that he was unwilling for him to act as guardian? Then, indeed, the Prætor should not carry out the first wishes of the father which he subsequently abandoned.
11 Scaevola libro vicesimo digestorum. Avia nepotibus curatorem dedit fideicommisso ei relicto: quaesitum est, an administrare curator compelli debeat. respondit curatorem quidem non esse, sed cum aliquid ei testamento datum esset, teneri eum ex fideicommisso, si non curam susciperet, nisi id quod ei datum esset nollet petere aut reddere esset paratus. 1Item quaesitum est, an iste curator satisdare nepotibus debeat. respondit quasi curatorem non debere, sed cum fideicommissum ab eo peti posset, fideicommissi nomine satisdare debere.
11 Scævola, Digest, Book XX. A grandmother appointed a curator for her grandchildren, after having bequeathed them certain property in trust. The question arose whether the curator could be compelled to act? The answer was, that he was not a lawful curator, but, as something was given him by will, he would be liable under the trust, even if he should not undertake the curatorship, unless he refused to accept what had been given him, or was ready to surrender it. 1The question also arose whether such a curator was obliged to give security to the grandchildren. I answered that he was not; but, as the surrender of the trust could be demanded of him, he should furnish security for its faithful administration.