1Pomponius, 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.

2Ulpianus, 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.

3The 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.

4The 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.

5Paulus, 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.

6Papinianus, 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.

7The 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?

8Paulus, 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.