De fideiussoribus et nominatoribus et heredibus tutorum et curatorum
(Concerning the sureties of guardians and curators and those who have offered them, and the heirs of the former.)
1 Pomponius libro septimo decimo ad Sabinum. Quamvis heres tutoris tutor non est, tamen ea quae per defunctum inchoata sunt per heredem, si legitimae aetatis et masculus sit, explicari debent: in quibus dolus eius admitti potest. 1Quod penes tutorem fuit, heres quoque eius reddere debet: quod apud pupillum is reliquerit si heres capit, non quidem crimine caret, sed extra tutelam est et utili actione hoc reddere compellitur.
1 Pomponius, On Sabinus, Book XVII. Although the heir of a guardian does not succeed to his position, the business of deceased which remains unfinished must be settled by the heir, if he is a male and of lawful age, and under such circumstances he can commit fraud. 1The heir must deliver to the ward whatever was in the hands of the guardian. If the heir should take anything left by the deceased in the hands of the ward, he will not be free from criminal liability; for this has nothing to do with guardianship, and he can be compelled by a prætorian action to surrender it.
2 Ulpianus libro trigesimo nono ad Sabinum. Postulare tutorem videtur et qui per alium postulat: item nominare et qui per alium hoc idem facit.
2 Ulpianus, On Sabinus, Book XXXIX. An application for a guardian is held to have been made even when this is done through another; and the same rule applies to the appointment of one, for he who makes it through the agency of another does the same thing.
3 Idem libro trigesimo quinto ad edictum. Etiam fideiussorem et heredes fideiussoris ad rationem eandem usurarum revocandos esse constat, ad quam et tutor revocatur.
3 The Same, On the Edict, Book XXXV. It has been established that both the surety and his heirs shall be compelled to pay the same amount of interest as is required of the guardian himself.
4 Idem libro trigesimo sexto ad edictum. Cum ostendimus heredem quoque tutelae iudicio posse conveniri, videndum, an etiam proprius eius dolus vel propria administratio veniat in iudicium. et exstat Servii sententia existimantis, si post mortem tutoris heres eius negotia pupilli gerere perseveraverit aut in arca tutoris pupilli pecuniam invenerit et consumpserit vel eam pecuniam quam tutor stipulatus fuerat exegerit, tutelae iudicio eum teneri suo nomine: nam cum permittatur adversus heredem ex proprio dolo iurari in litem, apparet eum iudicio tutelae teneri ex dolo proprio. 1Neglegentia plane propria heredi non imputabitur. 2Usuras quoque eius pecuniae, quam pupillarem agitavit, praestare debet heres tutoris: quantas autem et cuius temporis usuras praestare debeat, ex bono et aequo constitui ab iudice oportet. 3Fideiussores a tutoribus nominati si praesentes fuerunt et non contradixerunt et nomina sua referri in acta publica passi sunt, aequum est perinde teneri, atque si iure legitimo stipulatio interposita fuisset. eadem causa videtur adfirmatorum, qui scilicet cum idoneos esse tutores adfirmaverint, fideiussorum vicem sustinent.
4 The Same, On the Edict, Book XXXVI. As we have shown that an heir also can be sued in an action on guardianship, it should be considered whether fraud committed by the heir himself can be included in the case, or merely the manner in which he has administered his trust. An opinion of Servius is extant, in which he held that if the heir continued to transact the business of the ward after the death of the guardian, or had spent the money of the ward which he found in the chest of the guardian; or had collected money which the guardian had contracted for, he could be held liable in his own name in an action on guardianship; for since it is permitted for an oath to be taken against the heir with reference to the value of property which has been lost by him through his own fraudulent acts, it is evident that he can be held liable in an action on guardianship for bad faith on his part. 1It is evident that an heir will not be responsible for his own negligence. 2The heir of a guardian must pay interest on the money of the ward which he has invested, and the judge shall decide according to the principles of right and justice as to the amount of the interest, and the time for which it must be paid. 3Where sureties who have been named by guardians present themselves and are not opposed, and their names are permitted to be inscribed on the public records, it is just that they shall be held liable to the same extent as if a stipulation had legally been entered into. The same rule appears to apply to those who vouch for guardians, that is to say those who declare that they are solvent, for they occupy the place of sureties.
5 Paulus libro trigesimo octavo ad edictum. Si cum fideiussoribus tutoris ex stipulatione rem salvam fore agetur, easdem reputationes habebunt, quas tutor.
5 Paulus, On the Edict, Book XXXVIII. If suit based on the stipulation that the property of the ward shall be secure is brought against the sureties of a guardian, they have a right to take the same measures for their defence that a guardian has.
6 Papinianus libro secundo responsorum. Pupillus contra tutores eorumque fideiussores iudicem accepit: iudice defuncto, priusquam ad eum iretur, contra solos fideiussores alter iudex datus est. officio cognoscentis conveniet, si tutores solvendo sint et administratio non dispar, sed communis fuit, portionum virilium admittere rationem ex persona tutorum.
6 Papinianus, Opinions, Book II. A ward brought suit against his guardians and their sureties. The judge having cognizance of the case died before it came before him to be heard, and another judge was appointed against the sureties alone. It is the duty of the judge having jurisdiction to hold the guardians personally responsible for the larger part of the judgment, where they are solvent, and the administration of the trust was not separate, but in common.
7 Idem libro tertio responsorum. Si fideiussores, qui rem salvam fore pupillo caverant, tutorem adulescens ut ante conveniret petierant atque ideo stipulanti promiserunt se reddituros quod ab eo servari non potuisset: placuit inter eos, qui solvendo essent, actionem residui dividi, quod onus fideiussorum susceptum videretur: nam et si mandato plurium pecunia credatur, aeque dividitur actio: si enim quod datum pro alio solvitur, cur species actionis aequitatem divisionis excludit?
7 The Same, Opinions, Book III. When sureties, who bound themselves to see that the property of the ward remained secure, ask that the latter shall bring an action against his guardian, before having recourse to them, and they promise that if he does so they will indemnify him for what he cannot recover from the guardian, it is held that an action to recover the balance shall be divided among the sureties who are solvent; because the obligation is held to have been assumed by them, as where money is loaned under the direction of several persons, the action is equally divided among them. For where what has been given by one is used for the release of another, why should the particular nature of an action exclude an equitable division?
8 Paulus libro nono responsorum. Heredes eius, qui non iure tutor vel curator datus administrationi se non immiscuit, dolum et culpam praestare non debere. 1Paulus respondit tale iudicium in heredem tutoris transferri oportere, quale defunctus suscepit. hoc eo pertinet, ut non excusetur heres, si dicat se instrumenta tutelaria non invenisse: nam cum ex omnibus bona fide iudiciis propter dolum defuncti heres teneatur, idem puto observandum et in tutelae actione. sed constitutionibus subventum est ignorantiae heredum. hoc tamen tunc observandum est, cum post mortem tutoris heres conveniatur, non si lite contestata tutor decesserit: nam litis contestatione et poenales actiones transmittuntur ab utraque parte et temporales perpetuantur.
8 Paulus, Opinions, Book IX. The heirs of a person who was not regularly appointed a guardian or a curator, and did not undertake the administration of the trust, shall be liable for neither bad faith nor negligence. 1Paulus is of the opinion that an action of this kind should be brought against the heir of a guardian, just as the deceased would have been subjected to it. This is applicable to the extent that the heir will not be excused if he alleges that he had not found the documents relating to the guardianship; for as the heir in all bona fide actions is liable for the bad faith of the deceased, I think that the same rule should be observed in an action on guardianship. Relief, however, is granted by the Imperial Constitutions on account of the ignorance of heirs. This rule must also be observed when an heir is sued after the death of the guardian, but not where he died after issue had been joined; for by joinder of issue penal actions are transmitted for and against the heirs of both parties, and rights of action ordinarily extinguished by time are perpetuated.