Tryphoninus, Disputations, Book XIII. It must be held that a woman comes within the scope of the constitution, when she does not ask that guardians legally appointed for minor children by a will or codicil of their father, shall be confirmed by a magisterial decree. 1Where, however, several suitable guardians have been appointed, and one of them either dies or is excused, and the mother does not apply for the appointment of another in his stead, because the number of those remaining is sufficient for the administration of the guardianship; this, indeed, comes within the scope of the constitution, but she will be excused where the spirit of the same is considered. 2Where a guardian is accused on account of being suspected, and a decree has been rendered that other guardians shall be associated with him, the mother should make the application for this to be done, and if she does not do so, she will be liable under the said constitution. 3Such a mother shall be excluded from claiming any of the property of her children who may die intestate. Where, however, her husband charged his son with a trust, and his mother does not ask for the appointment of a guardian, the condition being if he should die without children or if he should die intestate; she does not forfeit the right to claim under the trust, because this is derived from the act of another party. 4Where, however, a mother does not allege that a guardian is suspicious, she does not incur liability to punishment according to either the letter or the spirit of the constitution, because to arrive at such a conclusion and opinion is the province of a masculine mind; and a mother can even ignore the offences of a guardian, for it is sufficient for her to have applied for the appointment of one who, after investigation by the Prætor, seemed to be suitable, and therefore her judgment is not sufficient to enable her to select a guardian, but an inquiry must be undertaken even if she should have appointed a guardian for her children by will for the administration of her entire estate.

Tryphoninus, Disputes, Book XIII. Where the guardian himself frames and brings forward excuses, and his discharge by the Prætor is prevented by delay caused by contradiction, his grounds for excuse can be legally established.

The Same, Disputations, Book III. “I appoint Titius the guardian of my children as long as he is not absent on business for the State.” Titius administers the guardianship conferred by will, and afterwards departs on business for the State, and ceases to discharge these duties. Shall he be excused on account of his absence on public business, just as if a new guardianship is now conferred upon him? Or should he not be excused because the will preceded his absence in the service of the government, and the guardianship has already been partially administered by him? But what if, in the meantime, children enough should be born to him for him to claim another right to be discharged? The better opinion is that this is but a single guardianship, and therefore he is not entitled to be excused; and that an action of guardianship cannot be brought against him on account of the former time of his administration. 1Where, however, the following clause appeared in the will: “I appoint Titius guardian, and, as long as he is absent in the service of the government, he shall not be guardian, but after he returns, he shall be.” Let us see what must be held with reference to his absence on account of public business, or in support of any other excuse which may afterwards arise. Another question, however, comes first in order, that is to say, whether testamentary guardians who have been appointed on a certain day, or under some condition, must offer their excuses before the expiration of the time, or the fulfillment of the condition; and especially whether the term of fifty days in which they are required to state their reasons for being excused, begins to run at once. It is true that a party does not become a guardian before the expiration of the time, as he cannot perform its duties before the estate has been entered upon. Therefore, for the reason that the guardianship has been administered in accordance with the terms of the same will, and the guardian has been excused because he was about to be absent on public business; having returned, he instantly becomes concerned with the administration of the guardianship previously undertaken, even though this should be within a year. In this instance, however, he ceases to be guardian under the same will, and hence can be excused from a second guardianship. 2Where a curator is appointed by the Prætor for an insane person or one who is dumb, or for an unborn child, he can be excused on the ground of the number of his children. 3We should only understand guardians as being appointed at Rome who are named either by the Prefect of the City, or by the Prætor, or in a will executed at Rome, or in houses adjoining the City. 4Where a freedman is prevented by bodily or mental illness from transacting business, so that he cannot attend to his own affairs, the necessity of the case must be considered, in order to prevent the duties of guardianship which cannot be performed from being imposed upon the freedman, to the inconvenience and disadvantage of the ward.

Ad Dig. 27,10,16Windscheid: Lehrbuch des Pandektenrechts, 7. Aufl. 1891, Bd. II, § 446, Note 9.Tryphoninus, Disputations, Book XIII. Where a father by his will appoints a curator for his son who is insane, even though he may be over twenty-five years of age, the Prætor should confirm him in accordance with the wishes of his father; for the right to appoint a curator of this description is vested in the Prætor, as is stated in a Rescript of the Divine Marcus. 1The result of this is that where a father designates a curator for his son, who is a spendthrift, the Prætor should respect his wishes, and appoint the same curator. There is some doubt as to whether this rule is applicable to all cases; for where the father did not make any provision by will, should the Prætor forbid the said son to manage his property, especially where this spendthrift himself has children? 2The father has, nevertheless, another way by which to provide for his grandchildren, where he appoints them his heirs, and disinherits his sons; for he can bequeath to them a certain portion of his estate which will be sufficient for the support of his sons, stating the necessity and the reason which have impelled him to take this step; or if he has no grandchildren under his control, because they were born after the son was emancipated, he can appoint them his heirs, on the condition that they shall be emancipated by their spendthrift father. 3But what if the spendthrift father should not give his consent to their emancipation? The will of the testator must, by all means be observed, in order that the magistrate may not think that he whom the father, after proper reflection, considered a spendthrift, is a man of good business capacity in spite of his failing.