Qui petant tutores vel curatores et ubi petantur
(Concerning Those Who May Demand Guardians or Curators, and Where This Can Be Done.)
1 Modestinus libro septimo differentiarum. Matris sollicitudo in petendis filio tutoribus, non etiam curatoribus observatur, nisi quo casu impuberi curator petendus est.
1 Modestinus, Differences, Book VII. The petition of a mother for the appointment of a guardian for her children, but not for the appointment of a curator for them, shall be considered; unless where the appointment of a curator is requested for a child under the age of puberty.
2 Idem libro primo excusationum. Ἐὰν οἱ ἀφήλικες μὴ ἔχωσι τοὺς ἐκ τῶν νόμων κηδεμόνας, ἐὰν μὲν ἐπιτρόπων δέωνται διὰ τὴν ἡλικίαν, δύνανται αἰτῆσαι αὐτοῖς ἐπιτρόπουσ κατασταθῆναι οἵ τε συγγενεῖς καὶ οἱ κατ’ ἐπιγαμίαν οἰκεῖοι γονέων ἀρρένων τε καὶ θηλειῶν· δύνανται καὶ φίλοι τῶν γονέων καὶ τροφεῖς αὐτῶν τῶν παίδων τοῦτο αἰτῆσαι. 1Οἱ μὲν οὖν ἄλλοι ἐκ προαιρέσεως αἰτοῦσιν ἐπιτρόπουσ· εἰσὶ δέ τινες οἷς ἐπάναγκές ἐστιν αἰτεῖν ἐπιτρόπους, οἷον μήτηρ καὶ ἀπελεύθεροι· ἐκ τούτων γὰρ αἳ μὲν ζημιοῦνται, οἳ δὲ καὶ κολάζονται, ἐὰν μὴ αἰτήσωσι τοὺς ἐκ τῶν νόμων κηδεμόνας. ἡ μὲν γὰρ μήτηρ ἐξελαύνεται τῆς τοῦ παιδὸς νομίμου κληρονομίας, ὡς οὖσα ἀναξία λαβεῖν κλῆρον νόμιμον, μὴ φροντίσασα αὐτῷ κατασταθῆναι ἐπίτροπον. καὶ οὐ μόνον ἐὰν μὴ αἰτήσῃ, ἀλλὰ καί, ὃν ἂν αἰτήσῃ, ὁσίας χάριν αἰτήσῃ τὸν ἀφεθῆναι δυνάμενον, εἶτα ἀφεθέντος αὐτοῦ ἢ καὶ ἀποβληθέντος ἄλλον μὴ αἰτήσῃ πάλιν, ἢ ἐξεπίτηδες κακοὺς αἰτήσῃ. ἀπελεύθεροι δὲ ἐκ τούτων τῶν αἰτιῶν κατηγορηθέντες ἐπὶ τοῦ ἡγουμένου κολάζονται ἐπιστρεφῶς, ἐὰν φαίνωνται ἢ δι’ ἀμέλειαν ἢ διὰ κακίαν μὴ ᾐτηκότες. 2Τὰ δὲ περὶ τῆς μητρὸς προειρημένα δηλοῦται ἐν ἐπιστολῇ Σεβήρου, ἧς τὰ ῥήματα ὑποτέτακται. ‘Divus Severus Cuspio Rufino. omnem me rationem adhibere subveniendis pupillis, cum ad curam publicam pertineat, liquere omnibus volo. et ideo quae mater vel non petierit tutores idoneos filiis suis vel prioribus excusatis reiectisve non confestim aliorum nomina dederit, ius non habeat vindicandorum sibi bonorum intestatorum filiorum’. 3Ἐὰν μέντοι τις ἢ δανειστὴς ἢ λεγατάριος ἢ ἂλλην ἀναγκαίαν ἔχῃ πρὸς τὸν ὀρφανὸν σύστασιν, αὐτὸς μὲν οὐκ αἰτήσει ἐπίτροπον τῷ ὀρφανῷ, ἀλλὰ τοὺς αἰτεῖν δυναμένους ἀξιώσει αἰτῆσαι, ἢ ἐὰν οὗτοι ἀποκνήσωσι, τότε προσελθὼν τῷ ἡγουμένῳ αὐτὸ τοῦτο ἐρεῖ, ἵνα κατασταθέντος ἐπιτρόπου νομίμου ἡ πρὸς τὸν ὀρφανὸν γένηται σύστασις. 4Ταῦτα μὲν περὶ ἐπιτρόπων· κουράτορας δὲ ἑαυτοῖς αἰτήσουσιν οἱ ἀφήλικες, ἐὰν μὲν παρῶσι, δι’ ἑαυτῶν· ἐὰν δὲ ἀποδημῇ τις αὐτῶν, αἰτήσει διὰ φροντιστοῦ. 5Εἰ δὲ ἄλλος αἰτῆσαι κουράτορα δύναται τῷ ἀφήλικι, ἐζητήθη. καὶ Οὐλπιανὸς ὁ κράτιστος οὕτως γράφει, ὡς δέον ἄλλον αὐτῷ μὴ αἰτεῖν, ἀλλὰ αὐτὸν ἑαυτῷ, et apud Paulum libro nono responsorum ita relatum est curatorem ignorante nec mandante pupilla non recte ei a tutore petitum videri periculumque eorum, quae curator non iure datus gessit, non sine ratione eum qui petit cogendum agnoscere. et alia parte eiusdem libri ita respondit, si matris iudicium princeps secutus curatores filiae eius dedit, periculum administrationis eorum eam respicere debere. 6Οἱ ὁπωσοῦν ἀφεθέντες δι’ excusationos τῆς ἐπιτροπῆς ἀνάγκην οὐκ ἔχουσιν αἰτεῖν τοῖς ὀρφανοῖς ἐπίτροπον, ὥς φησι Σεβήρου καὶ Ἀντωνίνου διάταξις.
2 The Same, Excuses, Book I. Where minors have no one who can legally act for them as defenders, and they require guardians on account of their age, they can request that their next of kin, or those who are connected with them by affinity, or members of the family of their male or female relatives, be appointed their guardians, and the friends of their parents and the teachers of the children themselves can ask that this be done. 1Therefore, strangers can voluntarily ask for the appointment of guardians, but there are certain persons who are required to apply for this to be done; as, for instance, the mother and freedmen, for the former would suffer loss, and the latter be liable to punishment, if they should not request the appointment of those who can act as defenders under the law. For the mother would be excluded from the lawful succession of her son because, having neglected to have a guardian appointed for him, she would be considered unworthy to legally inherit his estate. And not only would this be the case if she did not request the appointment at all, or if, merely to satisfy the requirements of the law, she should ask the appointment of one who is liable to be discharged, and afterwards he should be discharged or removed; and she did not then ask for the appointment of another, or intentionally sought the appointment of persons of bad character. Moreover, freedmen who on this account are accused before the Governor can be punished, if it should appear that, either through negligence or malice, they did not request the appointment of a guardian. 2What has just been stated with reference to a mother is set forth in an Epistle of the Divine Severus, the terms of which are as follows: “The Divine Severus to Cuspius Rufinus. I desire all persons to know that I pay special attention to the relief of wards, as this is a matter which relates to the public welfare. And, therefore, where a mother does not apply for the appointment of suitable guardians for her children, or where those who have been previously appointed have been excused or rejected, and she does not immediately ask for the appointment of others; she shall not be entitled to claim the property of any of her children who may die intestate.” 3Where anyone, for instance, a creditor or a legatee, or any other person, finds it necessary to institute proceedings against a minor, he himself cannot ask that a guardian be appointed for said minor; but he can make the request of those who can apply for such an appointment, and if they neglect to do so, he can then appear before the Governor and state the facts to him, so that the legal requirements having been observed, he can proceed against the aforesaid minor. 4So much with reference to guardians. Minors can themselves apply for the appointment of curators, if they are present; but if any of them should be absent, he can make the application by means of an attorney. 5The question arises whether another party can apply for the appointment of a curator for a minor. The distinguished Ulpianus states that another cannot make such an application, but that the minor himself must make it. And it is stated by Paulus in the Ninth Book of Opinions, that the appointment of a curator cannot legally be requested by a guardian, where a female ward is ignorant of the fact, or does not direct this to be done; and that he who makes such an application shall very properly be compelled to be responsible for the business transacted by the illegally appointed curator. In another part of the same book, he gives it as his opinion that, if the Emperor, on the application of a mother, should appoint a guardian for her daughter, she must assume the responsibility for his administration of the curatorship. 6Those who are discharged from guardianship, on account of any excuse whatsoever, are not required to apply for another guardian for their wards; as is stated in the Constitution of Severus and Antoninus.
3 Paulus libro decimo responsorum. Decreto decurionum et ipsum magistratum curatorem dari potuisse respondi.
3 Paulus, Opinions, Book X. I gave it as my opinion that the magistrate himself can be appointed by a resolution of the Decurions.
4 Tryphoninus libro tertio decimo disputationum. Credendum est et eam matrem constitutione contineri, quae a patre non legitime tutores testamento vel codicillis datos filiis impuberibus non postulavit decreto confirmari. 1Sin autem idoneis datis tutoribus pluribus unus eorum vel decessit vel temporalem excusationem accepit, mater, quae propterea in loco illius alium non petit, quia numerus reliquorum administrationi tutelae sufficiebat, incidit quidem in verba constitutionis, sed sententia excusatur. 2Sed si suspecto tutore pupilli accusato decretum erit ei adiungi alios, mater eos quoque petere debet et, si non petit, incidet in sententiam constitutionis. 3Haec autem mater ab omni quidem bonorum vindicatione intestatorum filiorum repellitur. si vero maritus ei fideicommissum a filio reliquerit, cui mulier non petit tutorem, ‘si sine liberis decesserit’, vel sub hac ipsa condicione ‘si intestatus mortuus erit’, fideicommissi petitio, quae ex alieno iudicio descendit, non est perempta. 4Quae autem suspectum tutorem non fecit, nec verbis nec sententia constitutionis in poenam incidit, quod eiusmodi facta diiudicare et aestimare virilis animi est et potest etiam delicta ignorare mater, satisque est eam petisse talem, qui inquisitione per praetorem habita idoneus apparuit. et ideo nec iudicium eius sufficit ad eligendos tutores, sed inquisitio fit, etiamsi maxime in bona propria liberis suis testamento tutores dederit.
4 Tryphoninus, Disputations, Book XIII. It must be held that a woman comes within the scope of the constitution, when she does not ask that guardians legally appointed for minor children by a will or codicil of their father, shall be confirmed by a magisterial decree. 1Where, however, several suitable guardians have been appointed, and one of them either dies or is excused, and the mother does not apply for the appointment of another in his stead, because the number of those remaining is sufficient for the administration of the guardianship; this, indeed, comes within the scope of the constitution, but she will be excused where the spirit of the same is considered. 2Where a guardian is accused on account of being suspected, and a decree has been rendered that other guardians shall be associated with him, the mother should make the application for this to be done, and if she does not do so, she will be liable under the said constitution. 3Such a mother shall be excluded from claiming any of the property of her children who may die intestate. Where, however, her husband charged his son with a trust, and his mother does not ask for the appointment of a guardian, the condition being if he should die without children or if he should die intestate; she does not forfeit the right to claim under the trust, because this is derived from the act of another party. 4Where, however, a mother does not allege that a guardian is suspicious, she does not incur liability to punishment according to either the letter or the spirit of the constitution, because to arrive at such a conclusion and opinion is the province of a masculine mind; and a mother can even ignore the offences of a guardian, for it is sufficient for her to have applied for the appointment of one who, after investigation by the Prætor, seemed to be suitable, and therefore her judgment is not sufficient to enable her to select a guardian, but an inquiry must be undertaken even if she should have appointed a guardian for her children by will for the administration of her entire estate.