Ubi pupillus educari vel morari debeat et de alimentis ei praestandis
(Where a ward should be brought up, or reside, and concerning the support which should be furnished him.)
1 Ulpianus libro trigesimo quarto ad edictum. Solet praetor frequentissime adiri, ut constituat, ubi filii vel alantur vel morentur, non tantum in postumis, verum omnino in pueris. 1Et solet ex persona, ex condicione et ex tempore statuere, ubi potius alendus sit: et nonnumquam a voluntate patris recedit praetor. denique cum quidam testamento suo cavisset, ut filius apud substitutum educetur, imperator Severus rescripsit praetorem aestimare debere praesentibus ceteris propinquis liberorum: id enim agere praetorem oportet, ut sine ulla maligna suspicione alatur partus et educetur. 2Quamvis autem praetor recusantem apud se educari non polliceatur se coacturum, attamen quaestionis est, an debeat etiam invitum cogere, ut puta libertum, parentem vel quem alium de adfinibus cognatisve. et magis est, ut interdum debeat id facere. 3Certe non male dicetur, si legatarius vel heres educationem recuset testamento sibi iniunctam, denegari ei actiones debere exemplo tutoris testamento dati: quod ita demum placuit, si idcirco sit relictum: ceterum si esset relicturus, etiamsi educationem recusaturum sciret, non denegabitur ei actio, et ita divus Severus saepissime statuit.
1 Ulpianus, On the Edict, Book XXXIV. The Prætor is frequently called upon to determine where children must be supported or reside, not only such as are posthumous, but all kinds of children. 1It is customary for him to decide, after taking into account the persons, their position, and the term of guardianship, where wards can be best supported, and sometimes the Prætor goes contrary to the will of the father. Hence, where a certain man provides in his will that his son should be reared by a party whom he had substituted, the Emperor Severus stated in a Rescript that the Prætor should determine in the presence of near relatives of the child whether this should be done; as the Prætor should act so that the ward may be supported and brought up by someone to whom no evil suspicion could attach. 2Although the Prætor does not promise that anyone who refuses to bring up a ward in his house shall be compelled to do so, still, the question arises whether, if he is unwilling, he can be compelled; as for instance, where a freedman, a parent, or any of the connections or relatives of the ward has been appointed. The better opinion is that sometimes this should be done. 3It is not improperly held that where a legatee or an heir refuses to bring up a ward, as he has been charged to do by will, he shall be refused rights of action; just as in the case of a testamentary guardian. This, however, only holds good where the bequest was made with this understanding, for if the testator knew at the time he made the bequest that the legatee would refuse to bring up the ward, the right of action will not be denied him. This rule was frequently stated by the Divine Severus.
2 Idem libro trigesimo sexto ad edictum. Officio iudicis, qui tutelae cognoscit, congruit reputationes tutoris non improbas admittere, ut puta si dicat impendisse in alimenta pupilli vel disciplinas. 1Modus autem, si quidem praetor arbitratus est, is servari debet, quem praetor statuit: si vero praetor non est aditus, pro modo facultatium pupilli debet arbitrio iudicis aestimari: nec enim permittendum est tutori tantum reputare quantum dedit, si plus aequo dedit. 2Hoc amplius et si praetor modum alimentis statuit, verumtamen ultra vires facultatium est quod decretum est nec suggessit praetori de statu facultatium, non debet ratio haberi alimentorum omnium, quia, si suggessisset, aut minuerentur iam decreta aut non tanta decernerentur. 3Sed si pater statuit alimenta liberis quos heredes scripserit, ea praestando tutor reputare poterit, nisi forte ultra vires facultatium statuerit: tunc enim imputabitur ei, cur non adito praetore desideravit alimenta minui.
2 The Same, On the Edict, Book XXXVI. It is the duty of the judge who has jurisdiction of the guardianship to allow expenses of the guardian, where they are not excessive; as, for instance, where he alleges that he incurred them for the maintenance or the instruction of the ward. 1The amount of the expenses allowed by the Prætor should be observed in accordance with his decree; but if he does not determine it, it should be decided by the judge in proportion to the means of the ward; for the guardian should not be permitted to present a claim for what he had expended, if this is more than what is just. 2And besides, even where the Prætor has prescribed the sum to be expended for support, and this is beyond the means of the ward, if the guardian did not advise the Prætor of the amount of property belonging to the ward, the account for the entire sum expended for his support should not be allowed; for the reason that if he had informed the Prætor, either the amount allowed would have been decreased, or so large a sum would not have been authorized by the decree. 3Where the father himself prescribed the amount to be expended for the maintenance of his children, whom he appointed his heirs at the time he did so, the guardian can render an account of it, unless the amount stated by the testator is beyond the means of the heirs; for then the guardian will be responsible for not having applied to the Prætor to have the allowance diminished.
3 Idem libro primo de omnibus tribunalibus. Ius alimentorum decernendorum pupillis praetori competit, ut ipse moderetur, quam summam tutores vel curatores ad alimenta pupillis vel adulescentibus praestare debeant. 1Modum autem patrimonii spectare debet, cum alimenta decernit: et debet statuere tam moderate, ut non universum reditum patrimonii in alimenta decernat, sed semper sit, ut aliquid ex reditu supersit. 2Ante oculos habere debet in decernendo et mancipia, quae pupillis deserviunt, et mercedes pupillorum et vestem et tectum pupilli: aetatem etiam contemplari, in qua constitutus est cui alimenta decernuntur. 3In amplis tamen patrimoniis positis non cumulus patrimonii, sed quod exhibitioni frugaliter sufficit modum alimentis dabit. 4Sed si non constat, quis modus facultatium sit, inter tutorem et eum, qui alimenta decerni desiderat, suscipere debet cognitionem nec temere alimenta decernere, ne in alterutram partem delinquat: prius tamen exigere debet, ut profiteatur tutor, quae sit penes se summa, et comminari graviores ei usuras infligi eius, quod supra professionem apud eum fuerit comprehensum. 5Idem ad instructionem quoque pupillorum vel adulescentium pupillarum vel earum, quae intra vicensimum annum constitutae sunt, solet decernere respectu facultatium et aetatis eorum qui instruuntur. 6Sed si egeni sint pupilli, de suo eos alere tutor non compellitur. et si forte post decreta alimenta ad egestatem fuerit pupillus perductus, deminui debent quae decreta sunt, quemadmodum solent augeri, si quid patrimonio accesserit.
3 The Same, On All Tribunals. The Prætor has the right to determine the amount to be allotted for the maintenance of wards; and he himself must apportion the sum which guardians or curators shall expend for the maintenance of wards or minors. 1When the Prætor renders his decision with reference to maintenance, he must take into consideration the value of the estate, and make the allowance with such a degree of moderation as not to permit the entire income of the estate to be expended for the support of the ward; but the allowance must always be made in such a way that a balance of the income will remain. 2In rendering his decision, he must bear in mind the slaves who are to serve the wards, the income of the latter, as well as the expenses of their clothing and lodging; and the age of those to whom maintenance is granted should also be taken into consideration. 3Still, in the case of large estates, not the entire value of the same, but what will be sufficient to enable the ward to live in an economical manner, should regulate the measure of the allowance. 4Where, however, the guardian, and he who desires an allowance for his support to be made do not agree as to the means of the latter, an inquiry should be instituted, and maintenance should not be rashly granted, lest injustice be done to one or the other of the parties. First, however, the Prætor should require the guardian to disclose how much is in his hands, and warn him that he will be compelled to pay a high rate of interest on all that is in excess of the sum mentioned in this statement. 5The Prætor is also accustomed to allow a certain sum for the education of male and female wards, or minors, who are under twenty years of age; this to be regulated by the amount of their means, and the age of those who are to receive instruction. 6Where, however, the wards are poor, the guardian is not compelled to support them out of his own property, and if a ward should be reduced to want after maintenance has been allowed him, the latter should be diminished, just as it is customary to increase it, when the estate has been enhanced in value.
4 Iulianus libro vicesimo primo digestorum. Qui filium heredem instituerat, filiae dotis nomine, cum in familia nupsisset, ducenta legaverat nec quicquam praeterea et tutorem eis Sempronium dedit: is a cognatis et a propinquis pupillae perductus ad magistratum iussus est alimenta pupillae et mercedes, ut liberalibus artibus institueretur, pupillae nomine praeceptoribus dare: pubes factus pupillus puberi iam factae sorori suae ducenta legati causa solvit. quaesitum est, an tutelae iudicio consequi possit, quod in alimenta pupillae et mercedes a tutore ex tutela praestitum sit. respondi: existimo, etsi citra magistratuum decretum tutor sororem pupilli sui aluerit et liberalibus artibus instituerit, cum haec aliter ei contingere non possent, nihil eo nomine tutelae iudicio pupillo aut substitutis pupilli praestare debere.
4 Julianus, Digest, Book XXI. A certain man appointed his son his heir, and left two hundred aurei to his daughter, by way of dowry, when she should marry; but left her nothing else, and appointed Sempronius guardian of the said children. The latter, having been summoned before a magistrate by the relatives and kinsmen of the female ward, was ordered to furnish maintenance to the said ward, as well as money, in order that she might be instructed in the liberal arts, this money to be paid to her teachers on account of the said ward. The male ward, having reached puberty, paid to his sister, who had already attained that age, two hundred aurei in discharge of the legacy. The question arose whether he could recover in an action on guardianship what had been expended for her support, and the amount disbursed by the guardian on account of the guardianship. I answered: I think that, although the guardian may have furnished maintenance for the sister of his ward without a decree of the magistrate, and also provided for her instruction in the liberal arts, as he was unable to do otherwise, he should not, in an action on guardianship, be obliged to pay anything on this ground either to his male ward or to anyone substituted for him.
5 Ulpianus libro tertio de officio proconsulis. Si disceptetur, ubi morari vel ubi educari pupillum oporteat, causa cognita id praesidem statuere oportebit. in causae cognitione evitandi sunt, qui pudicitiae impuberi possunt insidiari.
5 Ulpianus, On the Duties of Proconsul, Book III. Where a dispute arises as to where a ward should reside, or be brought up, a judicial inquiry having been instituted, the proper authority should decide the question. In an investigation of this kind those parties must be avoided who can take advantage of their position to violate the chastity of the minor.
6 Tryphoninus libro quarto decimo disputationum. Si absens sit tutor et alimenta pupillus desideret, si quidem neglegentia et nimia cessatio in administratione tutoris obiciatur, quae etiam ex hoc arguatur, quod per absentiam eius deserta derelictaque sunt pupilli negotia, evocatis adfinibus atque amicis tutoris praetor edicto proposito causa cognita etiam absente tutore vel removendum eum, qui dignus tali nota videbitur, decernet vel adiungendum curatorem: et ita qui datus erit, expediet alimenta pupillo. si vero necessaria absentia tutoris et inprovisa acciderit, forte quod subito ad cognitionem principalem profectus nec rei suae providere nec consulere pupillo potuerit et speratur redire et idoneus sit tutor nec expediat alium adiungi et pupillus alimenta de re sua postulet: recte constituetur ad hoc solum, ut ex re pupilli alimenta expediat.
6 Tryphoninus, Disputations, Book XIV. When a guardian is absent, and a ward applies for maintenance, and negligence and want of care are imputed to the former in the administration of his trust, and in support of this it is proved that, on account of his absence, the affairs of the ward have been neglected and abandoned, the relatives and friends of the guardian having been summoned, and a judicial inquiry instituted even in the absence of the guardian, the Prætor shall issue a decree that he who seems to be worthy of such a mark of ignominy shall be removed, or that a curator shall be joined with him; and he who is appointed must provide maintenance for the ward. When, however, the absence of the guardian was necessary, and happened through accident (for example, where he suddenly made a journey to be present at a judicial inquiry in behalf of the Emperor; and was unable to arrange for the care of his own property, or to attend to the interests of his ward), and his return is expected, and he is solvent, it is not expedient for another to be joined with him as curator; but if the ward demands maintenance out of his own property, a curator can legally be appointed for this sole purpose, namely, to provide support for the ward out of his own estate.