The Same, Opinions, Book V. Where a father appoints a guardian for a son who has arrived at puberty, or appoints a curator for one who has not yet done so, the Prætor should confirm him without any inquiry.

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.

Papinianus, Opinions, Book V. After the death of an insane person an action to enforce a judgment will not be granted against a curator who administered his affairs, any more than against a guardian; provided that, after his office has been relinquished it is established that no renewal was made by his consent and the obligation transferred to either the curator or the guardian. 1Ad Dig. 26,9,5,1Windscheid: Lehrbuch des Pandektenrechts, 7. Aufl. 1891, Bd. II, § 482, Note 8.A guardian who binds himself to pay a sum of money for which judgment was rendered against the father of his ward, can legally refuse to do so, if an action is brought against him after the termination of his guardianship. It was decided that the same rule will not apply to the case where a guardian borrowed money in his own name, and with it paid a judgment for his ward, unless the creditor made the contract in order that the money might be used for the satisfaction of the judgment.

The Same, Opinions, Book V. After a guardianship has ceased to exist, the investigation of a suspected guardian is also at an end, even though the guardianship was the first to terminate.

Papinianus, Opinions, Book V. Where a guardian applies for confirmation, and before the day of the decree obtains some privilege granting exemption, he cannot legally withdraw the petition which he has already filed. 1Where property is left by a parent to guardians by way of remuneration for their good faith, it has been held that it can be retained by the heirs, even though they are strangers, after the said guardians have been excused. This, however, will not apply to a son whom Ms father has appointed co-heir with, and guardian to his minor brother; since the son is entitled to the bequest of the father on account of his relationship, and not as guardian. 2Where a guardian has been exiled for a certain time, he cannot allege this as an excuse, but a curator should be appointed in his stead during the time of his exile.

Papinianus, Opinions, Book V. Our Noble and Illustrious Emperors decided that persons learned in the law, who had undertaken the administration of guardianship, should be excused where they have become members of the Imperial Council, since they must always be in their presence, and the honor paid to them will not be limited either by time or place. 1Where the native of a province fixes his residence at Rome, his curator, appointed by a decree of the Governor and the Prætor, shall undertake the administration of his property in both places. It has been held that he shall not be considered as administering two curatorships, because it is evident that two estates should not be held to be vested in the same person. 2He who enjoys the benefit of exemption cannot be compelled to undertake the curatorship of his brother. 3A patron appointed by his will certain of his freedmen as guardians of another freedman, who had not yet arrived at puberty. Although it may be established that these parties are solvent, they can, nevertheless, in accordance with public law, be excused from being confirmed by a decree.

Papinianus, Opinions, Book V. A husband must not be appointed the curator of his wife when she is of unsound mind.

Papinianus, Opinions, Book V. Where a son who was under his father’s control has been passed over, no manumissions or legacies granted by the will are valid, if the son who was passed over does not claim his share of the estate from his brothers. If, however, he refuses to accept any of his father’s estate, although, in accordance with the strict interpretation of the law, the will may be considered void, still, the wishes of the testator will be complied with on the principles of justice and equity.

The Same, Opinions, Book V. Where prætorian possession of the estate contrary to the provisions of the will is given to an emancipated son, who has been passed over, the other son, that is the appointed heir, who has also obtained prætorian possession, or who, having been content with what he acquires under the Civil Law, does not apply for prætorian possession, he will not be entitled to any preferred legacy which may have been left to him.

The Same, Opinions, Book V. An emancipated son obtained prætorian possession of the estate of his intestate father. The grandson by the said son, who remained in the family, will be entitled to half of the estate, together with the benefit of collation. If the same grandson should afterwards obtain prætorian possession of the estate of his intestate father, he will be obliged to place his property in the mass of the estate by way of collation with his brother, who was born after the emancipation of his father.

Papinianus, Opinions, Book V. An emancipated son, who could have obtained prætorian possession contrary to the provisions of the will, acquired possession of the estate of his father, under the Edict, on the ground of intestacy. A daughter also, who remained under parental control, having been appointed heir along with a brother of the same family, repeated the error of her emancipated brother, and obtained possession under the Edict on the ground of intestacy. She will not be obliged to contribute her dowry by way of collation for the benefit of her brother, who was appointed heir; as the prætorian possession which she claimed was of no force or effect, and she will retain her entire share of the estate under the will of her father; that is to say, each of the three children will have a third, and it will be presumed that the prætorian possession of the estate contrary to the provisions of the will, designated unde liberi, was demanded. 1Ad Dig. 37,7,5,1Windscheid: Lehrbuch des Pandektenrechts, 7. Aufl. 1891, Bd. III, § 610, Note 22.A daughter, who was obliged to contribute her dowry after the dissolution of her marriage, delayed doing so. She will be obliged to pay interest on the dowry in accordance with the judgment of a good citizen, since her emancipated brother must also place his income in collation, and she has received the income of her share.

The Same, Opinions, Book V. A freedman who has been released from the obligation to render services, and hence has acquired full testamentary capacity, shall, nevertheless, be compelled to treat his patron with respect. The case is different with reference to furnishing support, where the necessities of the patron are assumed for the purpose of annoying the freedman.

Papinianus, Opinions, Book V. Where freedom is granted by will, in fraud of creditors, although the first creditors may be satisfied, the grants of freedom are void, so far as the others are concerned.

Papinianus, Opinions, Book V. If a father consents for his son to become a decurion, and after his death his son obtains the office, his co-heirs cannot be held responsible for his maladministration, if the father left his son, the decurion, sufficient means to discharge his liabilities.