Corpus iurisprudentiae Romanae

1 Ulpianus, On the Edict, Book XXXV. A guardian can be compelled by extraordinary proceedings to carry on and administer the guardianship. 1From this the guardian may ascertain that, if he delays to exercise his functions after he has been appointed, he does so at his own risk. For it was decided by the Divine Marcus that where a party knows that he has been appointed a guardian, and does not, within the time prescribed by law, offer a reasonable excuse, if he has one, he will be responsible for his failure to act. 2It is sufficient for a guardian to completely defend his ward, whether he undertakes to do this himself, or under the instructions of the latter. Guardians should not be compelled to give security in order to conduct the defence of their wards. They are, therefore, permitted to institute proceedings themselves, whether they prefer to do so on their own responsibility, or to produce their wards in court; but they can only proceed themselves in cases where their wards are infants, or are absent; but where they have passed their seventh year, and are present, they can be authorized to act by their guardians. 3In the case of minors, those who bring actions against them can either summon the minor himself to court, for the purpose of suing him with the consent of his curator; or they can proceed against the curator himself to the end that he may conduct the case. Where, however, the minor is absent, proceedings must, in every instance, be instituted against his curator. 4In the discharge of their duty, however, the right to bring personal actions against the debtors of wards or of minors should not be refused to either guardians or curators, nor should they be denied the right to give their consent to the former to bring such actions.

2 The Same, On the Edict, Book IX. If the guardian should gain the suit, or should lose it, the action to enforce the judgment should be granted in favor of, or against the ward; and this is especially the case where the guardian did not appear voluntarily in court, or where he could not authorize his ward to act, either on account of the absence of the latter, or because of his youth; and this rule the Divine Pius stated in a Rescript. It is also set forth in many rescripts that an action to enforce the judgment should always be granted against the ward, where the guardian has lost the case, unless the ward rejected the estate of his father; for then it has been repeatedly laid down in rescripts that this cannot be done, either against the guardian or the ward, and that the property of the guardian cannot be taken in execution. 1Marcellus goes still farther in the Twentieth Book of the Digest, and says that if the guardian gives security, and the ward subsequently rejects the estate, relief must also be granted his sureties. Where, however, the ward does not reject the estate, relief must be granted the sureties to the same extent as to the guardian himself, especially if he has given security on account of the absence or infancy of his ward.

3 The Same, On the Edict, Book XXXV. Where several curators have been appointed, Pomponius states in the Sixty-eighth Book on the Edict that even what has been done by any one of them should be ratified. For in the case of the curators of an insane person, the Prætor can grant the administration of the curatorship to one of them, to avoid the loss of any advantage to the person who is insane, and he will ratify any transaction of his which is not fraudulent. 1Where a grandfather, or a father of the person under his control, designates by will which of the guardians shall administer the guardianship, the Prætor held that the latter should do so. And it is reasonable that the wishes of a parent should be considered, who have merely consulted the best interests of his son. The Prætor follows the same rule with reference to those whom a parent has designated in his will, and he himself confirms them in their office; so that if a parent should mention the person whom he wishes to administer the guardianship, he alone shall administer it. 2Therefore, the other guardians will not administer the guardianship, but they will be what we commonly call “honorary guardians”. But let no one think that no responsibility attaches to them, for it is established that suit can be brought against them also after the property of the administering guardian has been exhausted; for they have been appointed to act as the observers and supervisors of his acts, and they will be liable if they do not denounce him as suspicious, when, at any time, they perceive that he is conducting himself improperly. Therefore, they must assiduously exact an accounting from him, and carefully pay attention to the manner in which he conducts himself, and if there is money to be deposited, they must see that this is done, for the purpose of purchasing land. Those persons deceive themselves, who think that honorary guardians are not in any respect responsible, for they are liable in accordance with what we have above stated. 3Although the Prætor may state that he will certainly confer the guardianship upon the party designated by the testator, still, he sometimes avoids doing so, as, for instance, where the father has acted without proper consideration; or where he was a minor under twenty-five years of age; or where, at the time he made the appointment, the guardian appeared to be a man of good and thrifty habits, but was afterwards guilty of bad conduct, of which the testator was ignorant; or where the trust was conferred upon a party on account of his prosperous circumstances, and he was afterwards deprived of his property. 4Then, where the father only appointed one guardian, sometimes curators are associated with him. For our Emperor, together with his father, stated in a Rescript that, where anyone appoints as guardians his two freedmen, one for the administration of property in Italy, and the other for the administration of property in Africa, curators should be associated with them; the wishes of the father were not complied with. 5What has been stated with reference to guardians should also be observed in the case of curators whom the father appointed by will, and who should be confirmed by the Prætor. 6Therefore it is apparent that the Prætor should be careful to avoid having the guardianship administered by several persons; for although the father may not have designated any certain individual to administer it, still, the Prætor must provide that this be done by one person alone. For, indeed, it is more easy for a single guardian both to bring actions and defend them, and that the administration of the guardianship be not distributed among several individuals. 7Where a guardian has not been selected by the testator, or where he is unwilling to act, then he shall administer the trust who shall be appointed by the majority of the guardians. The Prætor must therefore order them to assemble, and if they do not do so, or, having assembled, do not come to any conclusion; after proper investigation, he himself shall determine who shall administer the guardianship. 8It is clear that if the guardians do not accept the decision of the Prætor, but all of them desire to administer the guardianship, because they have no confidence in the person who has been selected, and are not willing that a stranger should be substituted at their risk; it must be held that the Prætor can permit all of them to administer the trust. 9Moreover, if the guardians desire to divide the guardianship among themselves, they shall be heard, in order that the administration of the same may be distributed among them.

4 The Same, On the Edict, Book IX. This can be done either in shares, or by districts. Where it is divided in this manner, any one of them can be barred by an exception having reference to the share, or the district in which he does not administer the guardianship.

5 The Same, On the Edict, Book XXXV. There is only ground for the deposit of money, (if it can be collected), where it is available for the purchase of land; for if the guardianship can be readily proved to be of so little pecuniary importance that land cannot be purchased for the ward with the money collected, the deposit need not be made. Therefore, let us consider what should be the value of the property subject to guardianship to justify a deposit. And, when the reason for the deposit is stated to be to purchase land for the wards, it is evident that this should not be held to have reference to insignificant sums of money. The amount cannot be stated in general terms, since it is more easy, where proper cause is shown, for an investigation to be made in individual instances. For the power of asking sometimes for the deposit of even small amounts should not be taken away, if the guardians appear to be liable to suspicion. 1A guardian is held to have exercised his functions where he has acted in any manner which at all concerns his ward, even though it should be unimportant; and, in this instance, the interference of those who are accustomed to compel guardians to administer their trusts is not required. 2Where, after a guardian has once acted, he ceases to discharge his duties, he can be proceeded against as being suspicious. 3When anyone directs the guardianship to be administered in his behalf, and this is done by the party who has been directed to do so, there will be ground for an action on guardianship; for he himself is considered to have administered it who administers it by another. Where he to whom the direction was given does not act, the guardian can be sued by means of a prætorian action. 4Where the debtor of a father administers the guardianship of the son, he will be liable to an action on guardianship, even on account of what he owed the father. 5If a guardian should not notify his ward, who had arrived at puberty, to apply for curators for himself (as he who has administered a guardianship is ordered to do by the Sacred Constitutions), will he be liable to an action on guardianship? I think the better opinion is that the action on guardianship will be sufficient, as the necessity to give notice is a part of the duty attaching to the guardianship, even though it may be given after puberty. 6If, after the minor has reached his twenty-fifth year, accounts have not been rendered, nor the documents relative to an action already begun have been produced, it concerns the good faith and probity of the curators to proceed with the action instituted by their advice. Therefore, if they fail to attend to these things which are required of them, I think that the better opinion is, that a suit based on voluntary agency will be sufficient, even though the time of the curatorship has expired; provided no account of this matter has been rendered. 7Julianus proposes the following in the Twenty-first Book of the Digest. A certain man, at his death, appointed guardians for his children, and added: “And I desire that they be not required to render an account.” Julianus says that these guardians should be held liable, unless they had shown good faith in the administration of their trust, although it was stated in the will that they should not be accountable; nor, as Julianus says, should anyone be prosecuted on this ground because of the trust. And this opinion is correct, for no one can by means of provisions of this description release another from the application of the public law, or change the form established in ancient times. Anyone, however, can bequeath to another, or leave him by means of a trust, an indemnification for some wrong which he has suffered on account of guardianship. 8Papinianus stated the following case in the Fifth Book of Opinions. A father directed the guardianship of his children to be administered by the advice of their mother, and, with this end in view, released the guardians. The duty of the guardians will not, for this reason, in any way be lessened, but it is proper for good citizens to adopt the beneficial counsel of the mother, although neither the release of the guardians, nor the wishes of the father, nor the intervention of the mother, will, in any way, diminish their responsibility. 9Guardians are permitted to disregard the directions of the father to a certain extent; as, where the latter provided that none of his property should be sold, or that none of his slaves or his clothing, or his houses, or any of his effects, which were perishable, should be disposed of; they can take no account of this wish of the father. 10The guardian is hereby notified that the responsibility of the trust will attach to him from the time that he knows that he is a guardian. It is sufficient if he has obtained the information in any way whatsoever, and it is not necessary for him to be notified in the presence of witnesses; for, if he has learned the fact from any source whatever outside of the will, there is no doubt that the responsibility will attach to him.

6 The Same, On the Edict, Book XXXVI. The ward, however, must prove that the guardian was aware of his appointment.

7 The Same, On the Edict, Book XXXV. The guardian who does not make out a schedule of the property, commonly called an inventory, is considered to have acted fraudulently, unless some necessary and just cause can be alleged for his not doing so. Therefore, if anyone fraudulently fails to make an inventory, he is in a position to be liable to indemnify the ward for his entire interest in the matter, which can be ascertained by an oath taken in court. Hence the guardian should not transact any business before the inventory has been made, unless there is something which cannot admit of even slight delay. 1Where a guardian is guilty of delay in the sale of perishable property, he does this at his own risk, for he should at once perform the duties of his office. But what if he says that he was waiting for his fellow-guardians, who have either failed to appear, or wished to excuse themselves; should he be excused? He will not be readily excused, for he should perform his duties, not indeed precipitately, but without any unnecessary delay. 2An action on guardianship will lie against guardians, if they have made an injurious contract; for instance, if, through corruption or favor, they have purchased property which was not in good condition. But what if they had not acted dishonestly, or shown undue favor, but merely did not select property which was in good condition? One could very properly say, in this instance, that they ought only to be responsible for gross negligence. 3If, after the deposit of the money, guardians should neglect to purchase real estate, they begin to be liable for interest. For, although they must be compelled by the Prætor to make the purchase; still, if they fail to do so, they should be forced to pay interest on account of the delay, unless they are not responsible for the failure to purchase the property. 4Guardians must pay legal interest on money belonging to their wards which they convert to their own use, but only in case it is clearly established that they have employed it for their own purposes. But where a guardian did not lend the money at interest, or did not deposit it, he is not held to have converted it to his own use. The Divine Severus promulgated a decree to this effect, hence it must be proved that the guardian converted the money to his own use. 5We do not consider that a guardian has converted money to his own use who, being the debtor of the father of his ward, did not afterwards make payment to him; for he will be liable in this case for the same interest which he promised to pay to the father. 6Where a guardian lends the money of his ward at interest in his own name, he can only be compelled to pay the interest which he himself collected, if the ward is willing to assume the risk of other loans. 7Where it was necessary to deposit money for the purchase of land, and this took place, interest will not run. Where, however, this was not done, and no direction was given to make the deposit, then only the interest due on money belonging to the ward must be paid, but if such direction was given, and the ward neglects to follow it, it should be considered what rate of interest will be payable. The Prætors are accustomed to warn guardians that if the deposit is not made, or if it is made after the time prescribed, lawful interest can be collected. Therefore, if this warning has been given, the judge having jurisdiction of the case, at any time, must follow the decree of the Prætor. 8The Prætors are accustomed to give the same warning with reference to those guardians who deny that they have anything in their hands for the support of their wards; so that, if it should be established that they did have anything, higher interest may be paid; and it is clear that the judge must pursue this course in addition to the infliction of another penalty. 9The guardian must pay interest on all sums of money remaining in his hands. 10It should be understood what the interest is which is designated “pupillar”. It appears that this rate of interest is the legal one which the guardian must pay on money which he has converted to his own use; but where he denies that there is any money in his hands, and the Prætor renders a decision against him, he must pay the legal interest; or where he has been guilty of delay in depositing the money and the Prætor has rendered a decision against him for legal interest. But where he denies that any money of the ward is in his hands, and he imposes the necessity of borrowing money at legal interest upon the ward for the purpose of meeting his expenses, the guardian will be liable for legal interest. The same rule applies where he collects legal interest from the debtors of the ward. He will also be liable for interest for other reasons, according to the custom of the province; that is, for either five per cent, or four per cent, or for any lower rate, if this is the practice in the province. 11Interest is not exacted from guardians immediately, but its collection or investment should be required after a certain time, that is to say, two months. It is customary to observe this rule in an action on guardianship. This delay or indulgence should not be granted to those who convert the money of wards or minors to their own use. 12Where a guardian or a curator retains for his own use interest which he has collected, he should be liable for the said interest, for it certainly makes very little difference whether he misappropriates either the principal or the interest of his ward. 13The heirs of a curator will be liable for the interest of money deposited in a chest, until they make application for the appointment of another curator in the place of the deceased. 14Where a guardian has judgment rendered against him on account of the acts of his fellow-guardian, the question arises whether he shall also be required to pay interest. It is established, as is stated in many rescripts, and as Papinianus holds in the Twelfth Book of Questions, that he must be also required to pay interest, if he has failed to denounce his fellow-guardian as suspicious. And, indeed, he should be compelled to pay the interest to which he is liable on account of his administration. 15It should be noted that a guardian owes interest on money remaining in his hands after the termination of his office, until the day on which he relinquished the guardianship.

8 The Same, On the Edict, Book XXIII. Where the ward, whose guardianship is being administered, brings an action on guardianship, it must be said that he should sometimes wait for a certain date for the payment of money loaned; for instance, if he lent money in the name of the ward, and the day for collecting the same has not yet arrived. It is evident that this only has reference to money which the guardian could, and should have lent, but if he should not have lent it the ward will not be required to wait.

9 The Same, On the Edict, Book XXXVI. Whenever a guardian lends money belonging to a ward at interest, a stipulation should be entered into in the following manner: the ward, or one of his slaves, should stipulate for the payment of the money. Where, however, the ward is not of an age to be able to stipulate, and has no slave, then the guardian under whose control he is should make the stipulation. In this instance, Julianus very properly states than an equitable action should be granted to the ward. If, however, the latter should be absent, there is no doubt that the guardian can stipulate in his name. 1Where the head of a family gives to his son, as guardian, a person for whom he has become security, it is the duty of the guardian to pay the debt to his creditor when the day of payment arrives; therefore, if he fails to do so, and his ward, having passed his minority, should pay the debt on account of the security given by his father, he can proceed against his guardian, not only by an action of mandate, but also by one on guardianship; for the guardian is responsible for non-payment of the debt. If, however, the guardian only became indebted after the expiration of a certain time, it is held by some authorities that this does not come within the scope of an action on guardianship, provided the day of payment did not arrive until after the termination of the trust. But if the day arrives during the existence of the guardianship, they hold that undoubtedly it will be embraced in the action. I am of the opinion that both these decisions are correct, where the guardian is in a fair way to become insolvent, but if he should be solvent, it will not come within the scope of the action of guardianship. Nor should anyone think that this will be of no effect; for if it should be said that it is included in the action, and there is ground for the claim to be preferred, the sureties will be liable if an undertaking has been given for the preservation of the property. 2Moreover, if the guardian should be liable to a suit which will be barred by lapse of time, it must be said that there is ground for the claim being included in the action on guardianship, in order that the action may become perpetual. 3And, generally speaking, with reference to what a guardian is liable for to his ward as against a third party, he is also liable as against himself, where he owes the debt, and perhaps even more so; for he cannot make others pay against whom he has no right of action, but he can do this where he himself is concerned. 4Where a guardian owes money to the father of his ward at a higher rate of interest than the pupillar rate; it must be considered whether he is liable to him for anything. And, indeed, if he has paid the principal, he is not liable for anything, for he was able to pay and not burden himself with interest; but if he did not make payment of the principal, he can be compelled to pay the interest which he should exact from himself. 5Just as the guardian should pay what he owes, so also he can collect from the ward what is due to him, if he is the creditor of the father of the former; for he can pay himself, provided there was any money in his hands with which to do so; and if the interest due to him should be at a higher rate, the ward will be discharged from liability for it, because the guardian could have paid himself, just as he could, and should have paid others. 6It is not necessary, in case he is sued, for him to pay after judgment is rendered; and therefore if the case of the ward is not well founded, he should notify him of the fact. Hence the Emperor Antoninus and his father prohibited guardians from rendering a ward liable for expenses, if they set up a useless defence, where suit was brought by a creditor; for guardians are not forbidden to acknowledge a bona fide claim. 7Not only can a guardian pay himself, but he can also make a record of money loaned to himself, as Marcellus states in the Eighth Book of the Digest; and he can render himself liable for money borrowed from his ward, by stating in his register that it was lent to himself. 8It is established that where a guardian is appointed with reference to the increase of an estate (as, for instance, on account of a subsequent accession to the estate of his mother, or with reference to any other augmentation), it is not customary for him to administer the property belonging to the former guardianship. If, however, he has failed to denounce the first guardian as suspicious, or to require security from him, he shall be punished. 9On the other hand, however, where a guardian or a curator is merely appointed for a minor, he will be responsible for any increase of the property which may afterwards take place, although it is customary for a curator to be appointed to have charge of the increase; which is not done for the reason that the said increase has no connection with the care of what has already been acquired, for so far as this is concerned, the general interest of the ward should also be taken into consideration. Therefore, where a new curator is appointed, the responsibility is shared with the guardian, or if one is not appointed, the former appointee is necessarily held liable for the proper administration of the trust.

10 The Same, On the Edict, Book XLIX. Generally speaking, a ward is not held to have been properly protected when there is not done in his name what any good head of a household would do. Therefore, if a guardian neglects to make payment of a debt, or does not discharge his duty in the defence of a legal action, or in a stipulation, he is not considered to have properly protected his ward.

11 The Same, On the Edict, Book XXXIII. The Divine Pius stated in a Rescript with reference to a ward whose guardian was judicially decided to be a slave, that the owner of the latter was not entitled to the privilege of deducting what was due to him from property which the slave had purchased with the money of the ward. This rule also should be observed in the case of a curator.

12 Paulus, On the Edict, Book XXXVIII. Where several guardians administer a guardianship, an action in the name of a ward cannot be granted to any of them against his fellow-guardians. 1According to the Rescripts of Trajan and Hadrian, the transaction of all business by a guardian in good faith should be ratified. Therefore, a ward cannot bring an action to recover property which has been legally sold by his guardian, for it should not be to the advantage of a ward if the administration of the property should not be approved, for under such circumstances no one would purchase anything. Nor does it make any difference whether the guardian is solvent or not, for if the transaction was a bona fide one, it should be approved; but if it was fraudulent, the transfer will not be valid. 2It would be too much to grant permission to a guardian to pay expenses out of the property of his ward, on the ground of preserving the reputation of the latter, where he could not honorably pay such expenses out of his own property. 3As a guardian is appointed not only to care for the property of his ward, but also to exercise supervision of his morals, he should, in the first place, pay his instructors not the smallest salaries that he can, but in proportion to the value of the estate, and the rank of the ward; and he should furnish support for his slaves and freedmen, and sometimes for those of strangers, if this will be to the advantage of the ward. He can send the customary presents to his parents and relatives, but he cannot give a dowry to a sister who is the issue of another father, even though she otherwise would not be able to marry; for while this may be done honorably, it nevertheless is a display of liberality which should depend upon the will of the ward. 4Where a guardian was unable to lend money belonging to his ward, because there was no one to whom he could lend it, the ward must bear the loss of the interest.

13 Gaius, On the Provincial Edict, Book XII. A guardian should apportion the number of slaves who are to be in attendance upon his ward, in accordance with the rank and means of the latter. 1A guardian should not be heard when he alleges that he has not invested the money of the ward because he could not find a suitable place to do so, if it is proved that he has invested his own money profitably during that time. 2In the payment of legacies and the discharge of trusts, the guardian should be careful not to pay anyone to whom nothing is due. Nor should he give marriage gifts to the mother or sister of his ward. It is another thing, however, for the guardian to furnish the mother or sister of his ward with the necessaries of life, where they are unable to support themselves, for this should be ratified; as there is much difference where money is spent for this purpose, and where expense is incurred for presents or legacies.

14 Paulus, Abridgments, Book VIII. One guardian is responsible for the acts of another if he could and should have denounced him as suspicious, and sometimes if he could have compelled him to give security; but if one who is solvent should suddenly lose his property, no blame can attach to his colleague.

15 The Same, Opinions, Book II. Where a person who is appointed a guardian does not bring suit against those whom he ascertains to be the debtors of his wards, and on this account their solvency is affected; or if he does not invest the money belonging to his ward within six months after his appointment, he himself may be sued for the money due, as well as for the interest on that which he did not invest.

16 The Same, On Sabinus, Book VI. When, in an action on guardianship, the question arises what loans made by the guardian for the ward should be acknowledged; Marcellus thinks that if the guardian lent money belonging to his ward, and stipulated in his name, the claims which are considered to be good will belong to the ward, and those which are bad and improperly contracted will belong to the guardian. It is, however, held to be the better opinion for the guardian to leave the choice to the minor, in order that the latter may either accept or reject all which was done by the guardian with reference to the claims, so that it will be the same as if the guardian had transacted the business for himself. This rule also applies where the guardian lent money in the name of his ward.

17 Pomponius, On Sabinus, Book XVII. Where a guardian is ordered to administer the guardianship by someone who has authority to do so, and he fails to comply with the order, he should indemnify his ward from that date, and not from the time when he was appointed guardian.

18 Ulpianus, Digest, Book XXI. Where a guardian has transacted the business of his ward, even though he may not have authorized him to act in any matter, there is no doubt that he will be liable to an action on guardianship; for what can prevent such a disposition being made of the estate of the ward, that it will not be necessary for any business to be transacted in which the authority of the guardian should be interposed? 1Where there are two guardians, and an action is brought against one of them, the other will not be released from liability.

19 Ulpianus, Opinions, Book I. A curator is not compelled to render an account of his acts to his associate, but where he does not share the administration with him, or does not discharge his trust in good faith, he can be denounced as suspicious.

20 The Same, Concerning the Office of Proconsul. A guardian, or a curator whose appeal has been pronounced to be unreasonable, or where it has not been accepted, will be liable from the time when he should have undertaken the administration of his office.

21 Marcellus, Opinions. Lucius Titius appointed Gaius Seius, who was under paternal control, the guardian of his son by will. Gaius Seius administered the guardianship with the knowledge and consent of the father. I ask whether, after the death of Gaius Seius, an action on guardianship will lie against his father, and if this be true, for what amount. Marcellus answered that, according to the facts stated, the father will be liable to an action de peculio, as well as to one for property employed for his benefit; and that, in this instance, it does not appear that the knowledge and consent of the father will have the effect of rendering him liable for the entire amount, unless a fellow-guardian or some other party desiring to render him suspected, should appear and assume the risk.

22 Paulus, On the Edict, Book III. A guardian can renew an obligation for the benefit of his ward, and can bring a case into court, but donations made by him do not prejudice the ward.

23 Ulpianus, On the Edict, Book IX. It is generally conceded that a guardian need not give security that the ward will ratify his act, for the reason that he himself has a right to bring the matter into court. But what if it should be doubted whether he was a guardian, or would continue to be such, or whether the business had been entrusted to him? It is just that his adversary should not be deceived. The same rule applies in the case of a curator, as Julianus has stated.

24 Paulus, On the Edict, Book IX. It is customary for an agent to be appointed at the risk of the guardian, by a decree of the Prætor, whenever the business of the guardianship is widely distributed, or where the rank, the age, or the health of the guardian demands it. Where, however, the ward is not yet able to speak for himself, and appoint an attorney, or where he is absent, then an agent must necessarily be appointed. 1Where the guardianship has been entrusted at the same time to the administration of two guardians, either by a parent, fellow-guardians, or magistrates, it should be understood that one of them will be allowed to act, because two cannot do so at the same time.

25 Ulpianus, On the Edict, Book XIII. When a minor, with the aid of his curators, files a claim against his guardians, for a smaller amount than he was entitled to, and, for this reason he then sues his curators, and judgment is rendered against them for the amount of the interest which he had in not having the guardians condemned through the negligence of the curators; cannot restitution be obtained from the said guardians? Papinianus says, in the Second Book of Opinions, that restitution can still be made. Hence, if the curators have not yet paid the judgment, and they take an appeal, they can be met by an exception on the ground of fraud, to compel them to assign their rights of action against the guardians. But what should be done if the curators have already paid the judgment? This will be an advantage to the guardians, since, in this instance, the minor will lose nothing, as he will appear to be more solicitous for gain than for the reparation of his injury; unless, indeed, he is ready to assign his rights of action to his curators.

26 Paulus, On the Edict, Book XXIV. Proceedings can be instituted against a curator, and one occupying the place of a guardian, even during the continuance of his administration.

27 The Same, On Plautius, Book VII. A guardian who is administering his trust should be considered as occupying the place of an owner, with reference to whatever concerns the interests of his ward.

28 Marcellus, Digest, Book VIII. A guardian, who is summoned to court, gives security in the usual form. If, in the meantime, the boy arrives at puberty, he cannot be compelled to conduct the case. 1A guardian who has relinquished the administration of the affairs of his ward, after the latter has reached the age of puberty, is not liable for interest on money in his hands which he has already tendered. However, it seems more just to me that he should not be compelled to pay interest if he was not responsible for failure to surrender the guardianship, when it was demanded of him. (Ulpianus says that it is not sufficient for him to have tendered the money, unless he deposited it, sealed up, in some safe place.)

29 The Same, Digest, Book VIII. This is especially true in the case of the heir of a guardian, for it would be extremely unjust that anyone who has passed the age of twenty, or who is older, should take it into his head to claim what is due to him under the guardianship, and also to demand interest.

30 The Same, Digest, Book XXI. The principal duty of a guardian is not to leave his ward without protection.

31 Modestinus, Excuses, Book I. “The Divine Severus and Antoninus, Emperors, to Sergius Julianus: The rule under which individual guardians are sometimes liable in full, to the extent that each one has administered the guardianship, only applies before the age of puberty is reached, and is not available if the administration continues after that time.”

32 The Same, Opinions, Book VI. A guardian died without leaving an heir. I ask when a curator was appointed for his ward, and no inventory, nor any other document has been produced by the surety, whether the said surety can be sued on the stipulation, for the amount of the interest of the ward? Modestinus answered that the surety may be sued for the same amount for which an action can be brought against the guardian. 1Modestinus was of the opinion that the guardian would in no way be responsible where he was not guilty of negligence, if the ward should suffer any injury because receipts for taxes paid were not found. 2Modestinus held that a guardian should render an account to his ward for any income which he could have collected in good faith from land belonging to her. 3He also stated that if a guardian collected less from a slave placed in charge of land, than he should have collected in good faith, he could, for this reason, retain as much of the peculium of said slave as he was liable for to the female ward, and that this would be an advantage to the said guardian; provided he had not entrusted the management of the property to a wasteful slave. 4A minor, with the consent of his curator, sold a tract of land to Titius, and afterwards, having ascertained that he had been cheated, obtained complete restitution, and was ordered to be placed in possession of the property. I ask, since he did not profit by the said sale, and it was not proved that any advantage had been obtained by him with reference to his property, whether the price should not be returned to the purchaser? Modestinus answered that as the price of the land sold by the curator did not add to his pecuniary resources, and nothing had been decided with reference to it at the time when restitution was ordered by the court, the purchaser would present his claim in vain. 5He also gave it as his opinion that the minor should not be obliged to account for any expenses incurred by the purchaser for the sake of ornament; but if the improvements could be detached from the building in such a way that it could be left in its former condition (that is, as it was before the sale), the purchaser must be allowed to remove them. 6Lucius Titius was the co-heir and curator of his sister, and as he was a resident of a district in which it was customary for the owners of land, and not the lessees, to sustain the burdens of taxation, as well as temporary contributions, he, having followed this practice and custom, which had always been observed, paid the taxes for the common and undivided estate. I ask whether, when his accounts were rendered by the curator, objection could be taken to them that he did not incur said expenses legally, so far as the share of his sister was concerned. Modestinus answered that the curator had a right to render an account to the minor for what was complained of, because she herself would have been compelled to make the said payment if she had been managing her own affairs. 7Two guardians, after having made a sale of property belonging to their ward, divided the money among themselves; and, after this division, one of them was sent into exile during the existence of the guardianship. The question arose whether, if the exile appointed an agent, his fellow-guardian could make a demand on him for his share of the money belonging to the ward. Modestinus answered that: “If the question was whether, in case a guardian is exiled, his fellow-guardian can bring an action on guardianship; I am of the opinion that he can do so.”

33 Callistratus, Concerning Investigations, Book IV. The same diligence is required of the guardians and the curators of minors with reference to the administration of their affairs, as the head of the family should conscientiously exercise in the transaction of his own business. 1The duties of a guardian terminate with the appointment of a curator; and therefore all matters which have been begun are entrusted for completion to the curator. This the Divine Marcus, together with his son Commodus, stated in a Rescript. 2The heirs of wards have the same right to choose against what guardians they may prefer to proceed, just as those whose guardianship is being administered can do. 3It is stated in the Imperial Constitutions that an account shall be rendered of any expenses incurred in good faith during the administration of the guardianship, but, not such as the guardians have incurred for themselves; unless a certain compensation was fixed by the party who appointed them.

34 Julius Aquilia, Opinions. The slave of wards should be interrogated for the information of the court, and the promotion of the interest of the wards.

35 Papinianus, Questions, Book II. A guardian or a curator is compelled to accept from a former guardian or curator, any credits which he may not think to be good, but he is not obliged to assume the risk of their collection.

36 The Same, Questions, Book III. Guardianship is divided among guardians. Equity which has introduced the mere right of compensation does not cease to be applicable on account of the office and personality of the guardian who brings an action; for the division of the guardianship is not a matter of law, but one of jurisdiction, and establishes the measure of administration, but it applies only to guardians themselves, and should not be an obstacle to parties who desire to institute proceedings against a ward.

37 The Same, Questions, Book XI. Sabinus and Cassius hold that a guardian, who is administering the guardianship, becomes liable for his individual acts at different times, just as in various instances he is liable. 1In accordance with this opinion, where a slave is appointed to sell the property, or to collect the debts of his master, and after becoming free, he continues in the same employment; a suit based on voluntary agency can legally be brought against him on account of past transactions; even though he could not be held liable during the time he was in slavery (at least with respect to such matters as were connected with those that he transacted after obtaining his freedom), for it is held in the case of a ward, that he can bring an action on guardianship on account of any business which has been done after he arrived at puberty, where the recent acts are connected with the former ones, and that they cannot be divided so as to be placed in separate accounts. 2Hence the question arises which is usually discussed with reference to a son under paternal control for whom a guardian has been appointed by will, and he having been emancipated after the termination of the guardianship, the guardian continues to administer his office. It follows, from the opinion of Sabinus and Cassius, that the said son can be sued for the entire amount which relates to the business transacted after his emancipation; but so far as what took place before this time is concerned, whether he was not deprived of his peculium, or whether he was deprived of it, he will only be liable for the amount which he is able to pay. If the ward should prefer to bring an action de peculio against his father, based on the former administration (for the available year will be computed from the time when the guardianship began), in order that the father may not be taken advantage of by the computation of the entire period, only the time during which the son under paternal control administered the guardianship will be included.

38 The Same, Questions, Book XII. Where there are several guardians, who did not administer the guardianship, and all of them are solvent; will the ward have the right to select which one he will sue, because no administration of the trust has taken place; or should all the guardians share the responsibility in common, as being debtors for the same sum of money? The latter opinion is the more reasonable one. 1If some of the said guardians are not solvent, the others will undoubtedly be liable; nor is this unjust, since, through his contumacy, each one of them becomes responsible for the entire loss sustained by the ward. 2Wherefore, the question arose whether the ward is obliged to assign all his rights of action to the guardian, whom alone he has sued, or, at least, a part of them? But, as the contumacy of each one should be punished, with what propriety can this be demanded?

39 The Same, Opinions, Book V. Guardians who, after the determination of the guardianship, continue, through mistake, to retain the management of its affairs, will not be compelled to be responsible for any claims which were good after the ward arrived at puberty, as they cannot bring an action to collect them. 1A curator appointed by will by a father, through mistake, busied himself with the affairs of a minor. Afterwards, other guardians having been appointed by the Prætor, the former will not incur any liability, if he did not transact any business after their appointment. 2A testamentary guardian, illegally appointed, transacted the affairs of the minor in compliance with the wishes of his father. The mistake having been discovered, the best course to be pursued will be to have another guardian appointed by the Prætor, to avoid the condemnation of the former on the ground of fraud or negligence, if he should abandon the administration which he had already begun. The same rule does not apply where anyone voluntarily undertakes the management of another’s business, because it is entirely proper for the interests of the owner to be attended to by the exertions of a friend in any single transaction. 3An heir was appointed without a substitute, and before he entered upon the estate, which he was obliged to deliver to a minor, died. As the estate was situated in Italy, and the appointed heir died in a province, the guardians charged with the administration of property within the province should, in my opinion, be condemned on the ground of negligence, if, being aware of the terms of the will, they failed to look after the interests of the minor; for if the trust had been discharged in the province, the rights of the heir would have been protected, and the management of the estate would have devolved upon those who had undertaken the administration of the guardianship in Italy. 4The right of action against a guardian must not be denied a creditor who made a contract with the guardian himself, where the latter caused his ward to reject the estate; even though the guardian may have used the money for the benefit of the minor. 5The curators of a minor gave security to one another with reference to their common liability, and delivered reciprocal pledges for that purpose. If they should be solvent at the time when they are discharged from office, the security given will have no further effect, and it will be evident that the pledges will be released. 6A party who was appointed guardian appealed against his own appointment. His heir, having subsequently defeated the latter, will be responsible for any losses previously sustained, for the reason that it is held to be a slight degree of negligence to, in violation of law, refuse to accept the office of guardian, after anyone has been directed to assume it. 7Guardians who have the care of property situated in a province, and are transacting business connected with the appeal of minors in a city, should apply for the appointment of curators for the property of the said minors in Italy, as this is their duty. If they do not do so, before they return to the province, the court should render judgment against them on account of their fraud or negligence in this respect. 8A paternal uncle was appointed the testamentary guardian of his brother’s son, while he resided in Italy, and he assumed responsibility for the administration of the property in Italy, as well as of that in the province, and he then transferred the money obtained from sales of property at Rome into the province, and placed it to the credit of the ward. If another guardian should be substituted for him at Rome, he cannot be compelled to undertake the administration of this money, which does not belong to the assets of his guardianship. 9Where curators or guardians, improperly appointed by will, who have not been confirmed by a decree of the Prætor, transact business; they will be compelled to assume responsibility for one another for any losses which may take place, since they voluntarily assumed the office without the support of the law; and any one of them who is solvent should apply to the Prætor for a decree appointing curators or guardians. 10Where guardians who are solvent die, their heirs will not be liable for one another on account of anything which did not take place during the existence of the guardianship. 11It is established that an equitable action can be granted against a guardian who refuses to discharge the duties of his office, after others, who have discharged them have been sued. Still, if the loss sustained on account of the guardianship is not attributable to those who transacted the business, but occurred through the negligence of all; then the responsibility will equally attach to all, without considering any order of substitution. 12Certain guardians, after their ward had arrived at puberty, because of their familiarity with the facts of the case prosecuted an appeal which had been begun by order of the Consuls. If they should not be able to obtain the execution of the judgment, they will not be liable for negligence. 13Where a ward is unable to enjoy the benefit of restitution, his claim based on the alleged negligence of his guardian can be released by agreement; and this is not held to be a gift, but a business transaction. 14Where the loss of certain claims bearing a high rate of interest, and which were obtained by a father, is imputed to the negligence of guardians, a female ward will be compelled to assign her rights of action to them; but she can retain, without any compensation, all interest which may have been collected during the term of the guardianship. 15Where a minor, having sued his guardians, was unable to collect from them all that was due to him, he will be entitled to a right of action for the entire amount against the curators who, through negligence, did not transfer the guardianship to themselves; nor will the right be held to have been extinguished by the judgment on guardianship, for the reason that the ward has a cause of action against those holding another office. 16A guardian who refuses to bring suit in the name of his ward against the heir of a former guardian, who was solvent, will be held responsible for any loss; just as where one neglects to denounce as suspicious his fellow-guardian who has become insolvent. 17Execution of a judgment on the guardianship should, therefore, not be postponed for the reason that the same guardian is administering, at the same time, the guardianship of the brother and co-heir of the ward. 18The amount of the peculium of a slave who is acting as an agent, and whom a minor manumitted and retained, or could have retained after he had begun the administration of his affairs, must be accounted for by the curator when his statement is filed in court.

40 The Same, Opinions, Book VI. A centurion appointed a curator for his son who was a minor, but his appointment was not confirmed by a decree of the Prætor. If the curator did not transact any business, he cannot be held responsible for either contumacy or negligence; for the privilege of soldiers does not extend to wrongs committed against another, and ignorance with reference to others is not pardonable where the last wills are concerned, except in the case of the property of soldiers. The guardianship of children is, in fact, governed by the right of paternal control, and not by the advantage attaching to military service.

41 The Same, Opinions, Book VIII. Where a ward, who has more than one guardian, forbids one of them, who is insolvent, to render an account; this does not act as a release of the others with reference to what he, fraudulently, may have collected, or contracted for during the guardianship, and his fellow-guardians who neglected to denounce him as suspicious can legally be sued on the ground of negligence; for a testamentary guardian is not liable for negligence from which he was released by the will.

42 The Same, Definitions, Book I. A judge decided that one guardian out of several was liable for the entire amount. He who was the subject of the decree can act as attorney with reference to his own affairs, but he will not be entitled to the privilege of a ward, since this is not conferred even upon the heir of a ward, and relief is given, not to the case, but to the person of the ward, who is deserving of a special favor.

43 Paulus, Questions, Book VII. A guardian is released from liability where a claim becomes uncollected after the death of the ward. 1A man who was the curator of his brother’s daughter promised to give forty aurei by way of dowry to her husband. I ask whether he would be entitled to relief, if afterwards debts of the ward should be discovered, and the promised dowry found to be in excess of the amount of her estate; as it was set forth in the document that So-and-So, uncle and curator, promised a certain amount to the stipulator? The difficulty results from the fact that the curator did not expect to give the dowry out of his own property, but made the promise at a time when he believed the means of the ward to be sufficient for it to be dispensed with. Moreover, it can be considered whether, if the curator made the promise while aware that her property was not sufficient, he should be held to have donated the amount; or, as he acted fraudulently, whether he is entitled to relief. I answered that I do not think that, since the curator, going outside of his duty, voluntarily rendered himself liable, relief should be granted him by the Prætor, any more than if he had promised to pay money to the creditor of the girl. But if the party who is the subject of the discussion promised the dowry, not with the intention of making a gift of it, but merely as a matter of business, he could hold the woman liable; and it might be said that she would be bound during the continuance of the marriage, while she has the dowry, as is the case in the contribution of property; and she would certainly be liable after divorce, whether the dowry had been paid, or whether the claim for it still existed; because, in this instance, the result would be his release from liability for the same. But if the woman is unable to reimburse her curator for what he promised to give, by way of dowry, in excess of the assets of her estate, the curator can be released from liability for the amount in excess, by means of an exception; and the woman should give a bond to her husband for this amount, so that if she becomes wealthier during marriage, she can pay the remainder of the dowry to her husband.

44 The Same, Questions, Book XIII. Those who accept claims which have been approved by former curators or guardians, assume liability for their payment. 1Where a ward receives the account of his guardian after he arrives at puberty, and, having sued him for a balance, accepts interest, he does not lose his right to any property of his guardian which may have been sold, for the Prætor should preserve this right for him.

45 The Same, Questions, Book XIV. Where a ward, after arriving at puberty, discharged one of his guardians, he will be guilty of a dishonorable act if he attempts to call the other to account for the acts of the former whom he discharged. We say that the same rule applies in the case of two magistrates who are colleagues, and the government brings suit against one of them. I have reference, in this instance, to a case where two magistrates are jointly liable, as the principle is not always applicable, for if both of them are solvent, there is no ground for a choice in instituting proceedings. A party who is released by lapse of time is not like one who has nothing, because he has the means of opposing the party bringing suit on the claim.

46 The Same, Opinions, Book IX. Lucius Titius, the curator of Gaius Seius, during the time of his curatorship, leased the Cornelian Estate to Sempronius, who failed to pay the rent. The minor, having attained his majority, appointed the former lessee, Sempronius, his agent. I ask if because he acted as agent the minor is considered to have assumed the entire debt, and therefore released his curator. Paulus answered that, for the reason that the party, after having attained his majority, desired to have his former tenant act as his agent, he should not be considered to have released him from liability for the balance due on his rent. 1The State, by order to the Governor, took possession of the property of Sempronius, who, on account of a promise, had become a debtor of his native city and the magistrates of the latter appointed three curators, who are called by the Greeks epimelytai, and who afterwards on their own responsibility, and without the consent of the municipality, divided among themselves the administration of the property of Sempronius. One of them became insolvent, and the others who were solvent, relinquished the administration of the trust at the same time. Afterwards, the heir of Sempronius, who was a minor, and who had rejected the estate, obtained from the Emperor the restitution of his father’s property. I ask whether the minor should be indemnified out of the property of the curators who were solvent, since individual responsibility for the curatorship had been imposed upon them by the magistrates. Paulus answered that if it should be decided that an action might be granted the ward against the curators, he must sue the magistrates for the share of the curator who was not solvent, as the administration of guardians is one thing, and that of those who have charge of the business of the government is another. 2A guardian who has lent the money of his ward, even though he does so in his own name, is not held to have acted in opposition to the constitutions which forbid the money of a ward to be converted to the use of a guardian. 3The question arose whether a guardian should be compelled to pay interest on the money of his ward, which he had used after the termination of his guardianship until the day judgment was rendered against him. Paulus answered that after his administration was at an end, the interest should be computed in the same way as in a judgment on guardianship. 4Paulus also gave it as his opinion that where a surety was given by a guardian for the preservation of the property of his ward, he would not be liable for any acts performed by the guardian after the ward arrived at puberty, which were not due to necessity, but to choice. 5A guardian having been sued in an action on guardianship, produced his account, and judgment being rendered against him, he made payment in accordance with its terms; and afterwards, when the ward desired to collect money due from certain debtors of his father, whose names did not appear in the book of accounts, receipts of the guardian were produced by the said debtors. The question arose whether an action would lie in his favor against the guardian, or against the debtors. Paulus answered that if the debtors had paid the guardian during the time he was administering the trust, they would be released from liability to the ward by operation of law; but if an action was brought against the guardian, the ward could also bring one on guardianship against him, and avail himself of a reply on the ground of fraud, in opposition to an exception based upon a previous decision of the case. 6Where two testamentary guardians were appointed for a ward, and one of them died, upon the application of the mother of the ward another was appointed in his stead by the magistrates, under the direction of the Governor of the province, and from the latter guardian the magistrate exacted security for the preservation of the estate. The testamentary guardian denounced the other, subsequently appointed, as being suspicious. The question then arose as to what extent he could be held liable. Paulus answered that the testamentary guardian should be sued for the share of the property which he had administered; and that, with reference to the share of his fellow-guardian, proceedings should first be instituted against those who had become his sureties, and afterwards against the magistrates who appointed him. Then, if the ward was unable to obtain all to which he was entitled, an investigation should be made of the conduct of the other guardian, for the purpose of ascertaining whether he should be declared suspicious, especially as he was said to have accused the second guardian of acting suspiciously. Under other circumstances, however, where magistrates appoint several guardians, a ward has no recourse against them, before the property of all the guardians has been exhausted. In the case stated, where one guardian has been appointed by the magistrates, it is not held to be advisable that the testamentary guardian who accused the other of being suspicious should be sued before his colleague; hence each should be considered as having been appointed guardian for the administration of half the estate. 7Guardians are permitted to collect money due from the debtors of their wards, in order that they may be legally discharged; but they cannot present them with their claims, nor make any arrangement with them for the purpose of diminishing them. Therefore, where a debtor pays a smaller sum to a guardian than is due, he can be sued by the ward for the balance.

47 Scævola, Opinions, Book II. A certain man appointed Titius and Mævius guardians, and added the following provision: “I wish and I request that everything be done with the advice of my brother Mævius, and that anything which is done without it be void”. Titius alone collected the debts from the debtors; were the latter released from liability? I answered that if the testator committed the entire administration to Mævius, payment was not legally made. 1“Marina and Januaria shall fix an amount which will be sufficient for the daily expenses of my son.” I ask whether the guardians should be satisfied with the judgment of these two women. I answered that the amount of the expense should be established by the judgment of some good citizen. 2Guardians appointed for the administration of an estate in Italy found at Rome certain obligations of debtors resident in the province, for the payment of the money at Rome, or anywhere else that it might be demanded. As the debtors were not in Italy, nor any of their lands situated therein, I ask whether the collection of these claims was a part of the duty of the guardians of the estate in Italy. I answered that if the contract had been made in the province they were not concerned in it; but that it was part of their duty not to permit those entrusted with the administration of the estate in the province to remain in ignorance of the existence of said claims. 3Where a testamentary guardian, appointed by a mother, considering himself to be a genuine guardian, sold both the maternal and the paternal estates of the ward and died insolvent, the question arose whether the ward could bring an action for the recovery of the property. I answered that if the property still belonged to the ward, it could be recovered by him. 4The prefect of a legion inserted the following provision into his will: “I wish it to be left to the discretion of the guardians of my son to determine whether only one per cent interest per annum shall be paid on the money belonging to my estate, in order to prevent it from being dissipated”. I ask, if it should be ascertained that the money was lent at interest by the said guardians, whether they would only be liable in an action on guardianship for the interest at one per cent, or for the rate for which they had stipulated. I answered that if they chose to pay the amount of interest in accordance with the will of the deceased, and had not lent the money at interest in the name of the ward, they would merely be liable for the amount mentioned by the testator. 5Lucius Titius borrowed money from a guardian, and gave him in pledge property to which he was entitled by inheritance, and three years afterwards, the ward, whose guardianship was being administered, having arrived at puberty, the estate of the deceased was confiscated, because his heir did not avenge his death. The question arose whether the ward could refuse to consider the above-mentioned claim. I answered that, according to the facts stated, liability for the said claim did not attach to the guardian. 6One of two brothers, associated in the partnership of property and business, having died, left his son his heir; and the uncle of the latter, who was his guardian, after having sold all the merchandise belonging to the firm, purchased it himself, and conducted the business in his own name. The question arose whether he would be obliged to make good to the ward his share of the profits of the business, or merely the interest on the money. I answered that, in accordance with the facts stated, he must pay the ward interest, and would not be obliged to give him a share of the profits. 7The guardian of an estate in Italy, having been sued by a provincial creditor, paid him in the place where the ward had property. The question arose whether he could include this in an action on guardianship. I answered that there was nothing in the facts stated to prevent him from doing so.

48 Hermogenianus, Epitomes of Law, Book I. There is a great difference between the curator of property without an owner, and of an unborn child, and the curator of an insane person, a spendthrift, or a ward, since with reference to the latter it is evident that there is an actual administration; but to the first two merely the custody and sale of property which is liable to be deteriorated is entrusted.

49 Paulus, Opinions, Book II. Where a guardian is not in a condition to make reparation for injury by his obstinacy in not placing the money of his ward at interest, or because of his failure to purchase land, he shall be punished with unusual severity.

50 Hermogenianus, Epitomes of Law, Book II. Where the property of a ward is lost through an attack of robbers, or where a banker, to whom money was entrusted by the guardian at a time when he was in high repute, cannot repay all of it, the guardian will not be held liable for anything under these circumstances.

51 Venuleius, Stipulations, Book VI. Where two or more guardians are administering a guardianship, the stipulation of the surety of each one will render him liable for the entire amount. But if the guardianship is divided among them by districts, which is generally done, and one of them attends to the business in the city, and the other to that outside of it, then the stipulation will bind, or will not bind either surety, according to the liability of either principal; for although they are all guardians, and are administering the guardianship, still, if either of them is sued with reference to property which is outside of his district, or is brought into court, the stipulation will not bind him unless the administration of the guardianship has been entirely entrusted to him. Where the administration of the entire trust has not been committed to a guardian, the effect is the same as if it had not been given to him with reference to the property which is in question.

52 Neratius, Opinions, Book I. A curator not only should give a dowry for a minor, but should also pay the expenses incurred by the marriage.

53 Paulus, Decrees, Book II. Æmilius Dexter neglected to require security from guardians appointed during the time of his magistracy, and some of them having been excused, Dexter himself was appointed guardian by other magistrates who succeeded him. After his appointment, an action was brought against him for the entire amount, for two reasons; first, because he had appointed guardians at the time when he was a magistrate; and second, because he did not require security from them. On the other hand, it was said that although security was not required, still, the guardians were solvent at the time when the guardianship was terminated, and that the negligence of the curators should not be a source of injury to guardians. It was held that if the guardians were solvent at the time when the guardianship came to an end, even if security was not required, the responsibility will attach to the curators, otherwise, it will attach to the guardians and magistrates; that is to say, that he will be responsible who did not denounce his colleague as suspected, or did not require security when, on the expiration of the trust the guardian was found to be insolvent.

54 Tryphoninus, Disputations, Book II. I do not think that a guardian should be liable for a higher rate of interest, who has borrowed money belonging to his ward from his fellow-guardian and has given security, and promised a rate of interest which other debtors usually pay to wards, because he did not appropriate the money to his own use, and did not secretly or prodigally squander said money as if it was his own, and if the loan had not been made to him at this rate by his fellow-guardian, he could have obtained it elsewhere. It makes a great deal of difference where a guardian publicly and openly renders himself a debtor to his ward, just as any stranger would do; and where, under the pretext of administering the guardianship for the benefit of his ward, he secretly profits by the money of the latter.

55 The Same, Disputations, Book XLII. Three guardians were appointed for a ward; one of them administered the guardianship, and became insolvent; the second committed it to the charge of Titius, who transacted some of the business; and the third did not, in any way, concern himself with the administration. The question arose, to what extent was each of them liable. As a common responsibility attaches to guardians in the administration of their trust, all of them would be liable for the entire amount. It is clear that if money belonging to the ward was distributed among them, each will not be liable for a larger sum than he received. 1Where, however, the guardians themselves have stolen the property of the ward, let us consider whether each one of them will be liable for the entire amount, in the action for double damages established by the Law of the Twelve Tables. And, even though one of them may have paid double the value of the property, still the others will also be liable; for where there are several thieves who have stolen the same article, the others are not released from the penalty for the reason that it has been exacted from one of them. Guardians, however, on account of their having been entrusted with the administration, are rather held to have acted perfidiously than to have taken the property without the consent of the owner. Finally, no one can say that one guardian is liable for double damages in an action of this kind, and, as it were, by means of a species of action for recovery also be compelled either to surrender the property itself, or to pay its value. 2Therefore, a guardian is not only considered to have administered the guardianship, where he directed another to do so for him; but also where he took security from his fellow-guardian for the preservation of the estate, and then entrusted to him the administration of the entire guardianship. Nor can he defend himself by means of the constitution which directs that the party who administered the trust shall be sued first. 3Moreover, where no one has attended to a part of the business of the administration, he who has administered other affairs pertaining to it will not be liable for what has been neglected, but responsibility for all will attach to the guardians in common. Responsibility for other things which he did not attend to cannot, however, be required of one alone, unless they are of such a character that, after having been begun, they should have been finished by him, or where they have been so connected with those of which he had charge that they should not have been separated from them. 4But when it is said that guardians are responsible where a fellow-guardian becomes insolvent, or was not solvent at the time of his appointment, let us see how this should be understood; that is to say, whether it will be sufficient if the resources of their fellow-guardian were not diminished to any extent from the time of his appointment, but the amount of his paternal estate remained the same? Or, even though nothing happened subsequently which would manifestly cause a diminution of the estate, should a guardian, nevertheless, investigate the property of his fellow-guardian? This, however, should receive another construction dependent upon the standing of the person, and the time which had elapsed since the execution of the will; for where the party is a notorious spendthrift, or one whose property has been sold, he should not be permitted by his fellow-guardian to administer the trust, even though, having taken the Prætor unawares, the latter appointed him by a decree, and his father had ignored any accident which may have happened to him after the execution of the will, or intended to change his will, but did not do so.

56 Scævola, Digest, Book IV. A guardian sold property and animals belonging to his ward, but retained and kept in his possession some of the animals, for the reason that the purchasers did not pay for them; and he entered the price as paid in the accounts of the guardian. Other animals were produced by these, and the guardian having died, his heir administered the same guardianship, and kept the animals in his possession for several years. The question arose whether the minor, whose guardianship was the subject of administration, could legally claim the said animals after he was fourteen years old? The answer was that, according to the facts stated, the ward could not claim them.

57 The Same, Digest, Book X. The written obligations of certain debtors having been destroyed by fire, can the guardians sue the said debtors for the payment of the money on account of the obligations having been mentioned in the inventory; or can they compel them to renew them, even where they have done this under similar circumstances with other debtors, but have neglected to do so with reference to those of the ward, and if they have injured the latter in any way, on account of this failure to act, can proceedings be taken against them in an action on guardianship? The answer was that, if it should be proved that the guardians have failed to act through fraud or negligence, they will be responsible to the ward on this account. 1A ward, with the authority of his guardians, purchased a tract of land from a party who had been banished, and whose property had been confiscated by a decree of the Governor, and he having obtained permission of the Emperor to appeal, the judge declined to entertain the appeal, and it having been pronounced ill-founded he was deprived of the land. The question arose, could the ward recover the price of the land from his guardians in an action on guardianship. The answer was that if they knowingly made the purchase from one who was in such a condition as to be liable to the former decree, they could be held responsible in an action on guardianship.

58 The Same, Digest, Book XI. A certain man transacted his business through the agency of Pamphilus and Diphilus, his former slaves, and afterwards his freedmen, and by his will appointed them guardians of his son, providing that the business should be carried on in the same way that it had been done during his lifetime; and the said guardians administered the trust, not only during the minority of the son of their patron, but also after he had arrived at puberty. Diphilus rendered his account together with a statement of the profits of the business; Pamphilus, however, thought that it was not necessary to present an account of the profits, but merely to calculate the amount of interest ordinarily recovered in an action on guardianship. The question arose whether Pamphilus should have rendered his account in the same way as Diphilus, in order to comply with the intention of the testator. The answer was that he should have done so. Claudius Tryphoninus says that he should have done this in order not to obtain any pecuniary advantage from the guardianship. 1One of two guardians having died before his ward had arrived at puberty, the other, having brought an action against his heir in the name of the ward, recovered with interest all that had come into the hands of the deceased guardian from the guardianship. The question arose whether, in an action on guardianship which was brought by the ward after arriving at puberty, interest should be paid merely upon that portion of the money which had come into the hands of the deceased guardian by means of the guardianship, from the beginning; or whether interest on the principal as well as on the interest which had accumulated in the hands of the survivor, after the death of the former, should also be paid, and transferred with the principal. The answer was that if the guardian had used the money for his own benefit, interest on the entire amount should be paid; but if the money remained in the accounts to the credit of the ward, that only should be paid which he collected, or could have collected in good faith, and having been able to lend it at interest, neglected to do so; because if the guardian had received the principal and interest from any other debtor, all would, or should, constitute principal in his hands. 2In a case where the will appeared to have been broken, the testamentary guardians ceased to act in the administration of the trust, and a guardian for the ward was appointed by the Governor. The guardians appointed by will were, however, ordered to administer the guardianship conjointly with the one who was selected by the Governor to act in this capacity. The question arose whether the same testamentary guardians would be liable during the time which preceded the appointment of the other guardian, from the day when the will was opened, or from the date when they were ordered to take part in the administration. The answer was that they were in no way liable for acts performed during the time preceding the said appointment. 3A father having appointed his son, who was a minor, his heir, bequeathed two thousand aurei to his disinherited daughter, and appointed the same guardians for both of them. The question arose whether the guardians of the female ward would be liable in an action on guardianship for interest on the amount from the day on which the said two thousand aurei could have been separated from the other assets of the estate if they neglected to invest it. The answer was that they would be liable. 4The question arose whether the interest on money belonging to a ward which is due from guardians should be reckoned as principal when transferred to a curator, and whether the curator would be liable for interest on the entire amount. The answer was that all the money which comes into the hands of curators is subject to the same rule because all of it becomes principal.

59 The Same, Digest, Book XXVII. Where the estate of a father was burdened with debts, and the property appeared to be in such a condition that a female ward ought to refuse to accept the succession; one of the guardians made an agreement with several creditors that they would be satisfied with a certain amount of what was due them, which they received. The curators of the girl, after her arrival at puberty, made the same arrangement with certain creditors, who also received the money. The question arose whether, if one of the guardians happened to be a creditor or the father of the ward, and paid himself the entire amount due him with interest out of the ward’s property, he could be compelled by the curators of the minor to contribute in the same proportion as the other creditors had done. The answer was, that a guardian who had induced others to diminish their claims, should be satisfied with the same percentage of his.

60 Pomponius, Epistles, Book VIII. Where the heir of a guardian has concluded a transaction which was commenced by the latter, he will be liable to an action on guardianship on this account.

61 The Same, Epistles, Book XX. It is stated by Aristo that, where a ward loses possession of any part of an estate through the fault of his guardian, there is no doubt that he will be liable for the amount in an action on the estate, if security has been given to the ward. Moreover, security is held to have been given, even if the guardian is solvent, so that the ward can recover from him the amount for which judgment is rendered against him in an action. Where, however, the guardian is not solvent, it should be considered whether the damage will be sustained by the ward or by the claimant of the estate; hence it must be held to be just as if the property was lost by accident, and just as if the ward himself who is free from blame had diminished, destroyed, or lost any property belonging to the estate. The inquiry can also be made with reference to a possessor who is insane, where any of the property is lost on account of his insanity. What is your opinion on this point? Pomponius says, “I think that the opinion of Aristo is correct. But why are you in doubt as to who should suffer the loss, if the guardian should prove insolvent; for as it can very properly be said that the ward can only be compelled to transfer the rights of action which he has against the guardian to the vendor of the property, so also the heir or the possessor of the estate, if through no fault of his (for instance, if he should be forcibly ejected from land belonging to the estate, or a slave forming part of it should be wounded by anyone without the fault of the possessor), he would only be obliged to assign the rights of action to which he was entitled on this ground. It must be said that the same rule will apply where any loss takes place through the negligence or fraud of the guardian of an insane person, just as in the case where a guardian or a curator entered into a stipulation, or sold property belonging to an estate. I also think that it should be admitted that anything which happens through the insanity of anyone, should remain unpunished; just as if it had been caused by some accident, and without the act of the party sued.”