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1. Modestinus, On Excuses, Book I.

Herennius Modestinus to Ignatius Dexter, Greeting. I have composed a book which I have entitled "The Excuses of Guardianship and Curatorship", which seems to me to be very useful, and which I send to you.

(1) I shall do all that is possible to make the learning of these matters clear, while translating the legal terms into the language of the Greeks, although I am aware that they are not readily adapted to translation.

(2) I shall also add to the narration of the matters to be discussed the identical phraseology of the enactments, where it is necessary, in order that, by the possession at the same time of the legal doctrines and the commentaries of the same, those requiring them may have the laws in all their integrity and utility.

(3) Therefore, in the first place, it should be stated what persons should not be appointed.

(4) Guardians shall not appoint freeborn guardians or curators for minors who are freedmen, unless there is an entire lack of freedmen in the place where the appointment is to be made; for a Rescript of the Divine Marcus directs that freedmen should alone be appointed guardians for emancipated wards, who are residents of the same locality. Where, however, another is appointed, the Divine Severus, mindful of the interest of minors, stated in a Rescript that the party would be liable under the guardianship, unless he could give reasons for not accepting it in compliance with the law.

(5) A husband cannot act as a guardian of his wife (as the Senate has decreed), and if he should be appointed he shall be discharged.

2. The Same, Excuses, Book II.

Persons who have attained the age of seventy years are excused from the duties of guardianship and curatorship. It is necessary, however, that they should have passed the age of seventy at the time of their appointment, either when the heir has entered upon the estate, or when a condition prescribed by law has been fulfilled, and not within the time established to render the excuse valid.

(1) Moreover, age is established either by the certificate of birth, or by other legal evidence.

(2) A large number of children is a good excuse for release from the duties of guardianship or curatorship.

(3) All the children, however, must be legitimate, although they may not be under paternal control.

(4) It is necessary that the children should be living at the time their fathers are appointed guardians, for any who have previously died shall not be included among those entitled to be excused; nor, on the other hand, do any who die subsequently prejudice the rights of their parent. This is also set forth in a Constitution of the Divine Severus.

(5) Although, indeed, this seems to have special reference to a testamentary guardian, it is, nevertheless, applicable to all others.

(6) While a child in the womb of its mother is by many provisions of the law considered as already born, still, neither in the present instance, nor with reference to other civil employments, can this operate to release the father. This rule was also set forth in a Constitution of the Divine Severus.

(7) Again, not only do sons and daughters effect the release of their father from guardianship, but also grandchildren, both male and female, who are the offspring of sons. Moreover, it is only when their father is dead, that they can supply his place with their grandfather. Then, no matter how many grandchildren are born to a single son, they are reckoned only as one child. This also can be ascertained from those constitutions which treat of children; for it is never easy to ascertain where a constitution refers to sons, but this can readily be done where the reference is to children, for this appellation includes grandchildren also.

(8) It is necessary that the party who is appointed should have, at the time, the number of children prescribed by the constitutions, for if they should be begotten after his appointment, this will be of no benefit to him by way of excuse, as the Constitution of Severus and Antoninus sets forth.

(9) Persons who are called to a guardianship or a curatorship may be excused where they already have charge of three guardianships or curatorships; or where three guardianships and three curatorships are united, and are still in existence; that is to say, where the minors have not yet attained their majority. Where, however, anyone is the curator, not of a minor, but of an insane person or a spendthrift, such a curatorship shall be included in the number of those permitting exemption, as is stated in the Constitution of Severus and Antoninus. The distinguished Ulpianus gives the same opinion in the case of persons having the administration of three guardianships.

3. Ulpianus, On the Duties of the Praetor Having Jurisdiction Over Guardianships.

The administration of three guardianships offers a good excuse. Three guardianships are understood to mean, not that the number of wards give rise to distinct guardianships, but that the estates are separate and distinct. Hence, where a guardian is appointed for three brothers who are entitled to an undivided estate, or where a guardian is appointed for two of them, and a curator for the others, he is held to have undertaken but one guardianship.

4. Modestinus, Excuses, Book II.

We have stated that parties charged with the administration of three guardianships are not required to accept a fourth. Hence the question arises, where anyone is administering two guardianships, and having been called upon to accept a third, appeals, and, while the appeal is pending, is appointed to a fourth guardianship, whether he can excuse himself from the fourth by mentioning the third, or whether he can renounce it altogether. I find that it has been determined by the Divine Severus and Antoninus that a party who has appealed from the appointment of a third guardianship cannot be charged with a fourth; but that, while his application to be excused from the third appointment is pending, he must await its determination to ascertain whether he shall be charged with a fourth appointment or not. There is a good reason for this, for if anyone should undertake the administration of the fourth guardianship, and it should happen that his appeal from his appointment to the third was improperly taken, and the appointment should stand, he would be charged with the administration of four guardianships, which is contrary to law.

(1) Where a father has the administration of three guardianships or curatorships, his son shall not be annoyed with the administration of another, as has been decided by the Divine Severus and Antoninus. This rule also applies to the case of a son, for the guardianship of a son will effect the release of his father, and this is the case where the guardianships are administered in common, by both; that is to say, where one is administered by the son, and two by the father, or vice versa. The same rule applies where the duties of administration are discharged by a single household, and not by separate ones. The distinguished Ulpianus also held this same opinion.

5. Ulpianus, On the Duties of the Praetor Having Jurisdiction Over Guardianships.

It is sufficient that the parties charged with three guardianships should belong to the same family. Hence, if the father, the son, or the brother of anyone who is under the same control, is charged with the administration of three guardianships, the father will be responsible for the reason that they are administered with his consent. This will be a good excuse for all of them to be released from any other guardianship. Where, however, they do not administer the trusts with the consent of the father, it has been frequently stated in rescripts that this will not be available as an excuse.

6. Modestinus, Excuses, Book II.

If anyone already charged with the administration of two guardianships should have two others simultaneously imposed upon him, the one which is third in order will be available to him to obtain a release from the fourth; even though the Emperor himself may have made the appointment of the fourth, or the third, if, before he was aware of the order of the Emperor, he had been appointed to the administration of the other guardianship. Where, however, no order was observed, but the two appointments were made by different letters upon the same day, he who made the appointment, and not the appointee, shall select which charge he must administer.

(1) Grammarians, sophists, rhetoricians, and physicians in active practice, are entitled to exemption from guardianship and curatorship, just as they are from other public employments.

(2) Again, in every city there are a number of rhetoricians, as well as certain philosophers mentioned in the laws, who are excused from the exercise of public duties, which is stated in a Rescript of Antoninus Pius written for the province of Asia, but which is also applicable to the entire world, and whose contents are as follows: "Small towns are entitled to five physicians, three sophists, and the same number of grammarians, who shall be exempt from the duties of guardianship; larger ones shall be entitled to seven who practice the healing art, and four of each of those who give instruction in both the above-mentioned branches of learning. The largest cities shall be entitled to ten physicians, five rhetoricians, and the same number of grammarians. The largest city, cannot, however, grant exemption to a greater number. It is proper that the capitals of countries should be included in the number of the largest cities; that those which have either a tribunal or a place where causes are heard and determined should be embraced in the second class; and all others in the third."

(3) It is not lawful for this number of exceptions to be exceeded either by a Decree of the Senate, or for any other reason; the number can, however, be diminished, since it is apparent that this measure has been taken for the benefit of the civil service.

(4) These persons, moreover, do not enjoy this exemption, unless they have been regularly registered by a Decree of the Senate, and are not negligent in their practice.

(5) Paulus states that philosophers are also exempted from guardianship; for he says philosophers, orators, grammarians, and those who publicly instruct youths, are excused from the exercise of its duties. Ulpianus also makes a similar statement in the Fourth Book on the Office of Proconsul.

(6) Our Emperor and his father stated in a Rescript addressed to Laelius Bassus that a physician could be rejected by a municipality even though he had already been licensed.

(7) The same Constitution of the Divine Pius states with reference to philosophers that their number has not been officially determined, because very few really belong to this profession. I think, however, that those who are endowed with great wealth will voluntarily contribute their property for the benefit of their country. But where they speak principally of their worldly possessions, it is evident from this fact that they are not true philosophers.

(8) There is a Section of a Constitution of the Emperor Commodus mentioned in a Rescript of Antoninus Pius, in which it is apparent that philosophers enjoy exemption from the duties of guardianship. It is expressed in the following terms: "Moreover, in conformity with all these things, as soon as my Divine Father ascended the throne, he confirmed by a Constitution all existing honors and immunities, stating that philosophers, rhetoricians, grammarians, and physicians were exempt, while conducting the schools of the priesthood, and that they cannot be forced to furnish supplies of corn, wine, or oil, or purchase the same; that they cannot be compelled to preside in court, or act as deputies, or be enrolled in armies, or, against their consent, be subjected to any other public service."

(9) It must also be remembered that anyone who gives instruction in his own country, or practices medicine, is entitled to this exemption, for if a man from Comana teaches or practices medicine in Caesarea, he will not be exempt at Comana. This rule has also been promulgated by the Divine Severus and Antoninus.

(10) Indeed, Paulus writes that the Divine Pius and Antoninus ordered that persons distinguished for learning should be exempt, even if they exceeded the number of those already registered; where they established their residence in a different district.

(11) It was promulgated by the Divine Severus and Antoninus that anyone who taught philosophy at Rome either with or without a salary should enjoy the same exemption as if he taught in his own country. It can be adduced as a reason for such a decree that, as the Imperial City is considered to be the common country of all the people, he who honorably makes himself useful should enjoy exemption there, not less than in the place of his birth or residence.

(12) In fact, teachers giving instruction in any district are not entitled to exemption, but those who teach at Rome are released from guardianship and curatorship.

(13) Ulpianus, in his Book on the Duties of the Praetor having Jurisdiction of Guardianship, writes as follows: "Athletes are entitled to exemption from guardianship, but only such as have been crowned in the Sacred Games."

(14) The governorship of provinces, as, for instance, of Asia, Bithynia, Cappadocia, confers exemption from guardianship; that is, so long as the parties hold the office.

(15) Guardianship is not a public employment, nor one to which a salary is attached, but a civil office; and it is held that the administration of a guardianship cannot be carried on outside of the province.

(16) The magistrates of cities are released from guardianship and curatorship.

(17) Enmity resulting from the accusation of a capital crime, manifested by the appointee against the father of the ward, also affords a release from guardianship, unless it appears that the guardian was appointed subsequently by will, or after the will was drawn up, the strife due to the capital accusation no longer existed; or the enmity preceded the execution of the will; and it is clear that the guardian was appointed for the purpose of being subjected to responsibility and annoyance growing out of the transaction of business. This also is made manifest by a Rescript of the Emperor Severus.

(18) Moreover, anyone can be released from the duties of guardianship when a question is raised with reference to the condition of the ward, and it appears that this was not done through malice, but from motives of good faith. This rule was promulgated by the Divine Marcus and Severus.

(19) Paulus writes as follows with reference to persons residing in the country, who are of humble rank and illiterate: "Inferior rank and rusticity sometimes can be alleged as an excuse, according to Rescripts of the Divine Hadrian and Antoninus." The excuse of a party who states that he has no knowledge of letters should not be accepted unless he is inexperienced in business.

7. Ulpianus, On Excuses.

Poverty, indeed, affords a good excuse, where anyone can prove that he is unequal to the burden imposed upon him; and this is contained in a Rescript of the Divine Brothers.

8. Modestinus, Excuses, Book III.

Soldiers, however, who have honorably served their time of enlistment are at present entitled to exemption from the guardianship of any other persons whomsoever. But with reference to the guardianship of the children of those who have served in the same rank, or of such as were formerly soldiers, the comrades of the latter shall be excused during the first year following their discharge. But, after that time, they shall not be entitled to exemption; for the equality of military distinction always appears to be stronger than the privilege attaching to the service, unless perhaps they should have other good reasons for release from guardianship; as, for instance, the number of their years, or anything else of this kind for which it is customary for private individuals to be exempt from all similar obligations. This rule, however, applies to the sons but not to the grandsons of those who were formerly soldiers, for the grandsons of veterans are held to occupy the same position as other private individuals.

(1) Those, indeed, who have been ignominiously discharged, are considered to be like persons who have never been in the army, and for this reason they themselves are not entitled to the privilege of a soldier; and if others who were formerly in the service should be appointed guardians of their children, they will not be required to serve.

(2) Sometimes, however, soldiers do not complete their terms of service and still are entitled to exemption from guardianship; but this is not the same exemption as those are entitled to who have served their full time. He who has been more than twenty years in military service is held to be in the same position as he who has served as a soldier for the full time.

(3) Anyone who has been discharged within this time is not entitled to perpetual exemption from guardianship, but only to exemption for a certain period; just as is the case with other civil employments. Where anyone is released from military duty within five years, he shall not claim any exemption for himself; and he who has served five years shall be entitled to exemption for one year; he who has served eight, shall be exempt for two years; he who has served twelve, for three years; he who has served sixteen for four years; and he who has served twenty years shall, as we stated above, always be exempt.

(4) Anyone who has served in the Night Watch of Rome shall be entitled to exemption for only one year.

(5) What has been stated also applies to persons who have been honorably discharged, or have received a discharge on account of illness, for this is also an honorable excuse; but he who has been ignominiously discharged is not entitled to exemption.

(6) A veteran is considered to be one who has not only served in a legion but has served in any military capacity whatsoever, provided he has been honorably discharged. He can, however, be appointed guardian of the children of another soldier; for one who has served in a legion can be appointed guardian of the children of another who has served in the Night Watch.

(7) A former soldier can also be appointed curator for a minor in the service, where the father of the latter is dead, or even if he has been emancipated.

(8) Constitutions exist which establish all these rules.

(9) Ulpianus also states the same things. Those who have been dishonorably discharged are evidently excluded from guardianship in the City, for the reason that it is unlawful for them to enter therein. Anyone who has served in the urban cohorts, even though he has been discharged before twenty years have elapsed, is still entitled to perpetual exemption from guardianship.

(10) The question, however, arose whether former soldiers should accept a guardianship at once, or whether during the same time, they could not discharge the duties of the office more than once, so that the first guardianship having been terminated, they could again claim their privilege in a different manner from private persons, who have executed their trust. This will not benefit those who are not entitled to the privilege, nor can it be reckoned among the three which afford exemption; just as in the case of those who were formerly in military service it is no advantage to have been appointed guardians. This was promulgated in the Curiae, as is shown by a Constitution of the Divine Severus and Antoninus.

(11) It makes no difference for what reason the children of a fellow-soldier require a guardian or a curator; whether because they are emancipated, or because their father is dead. Centurions of the first company of the triarii, are, under the Imperial Constitutions entitled to exemption from all other guardianships, for such captains shall serve as the guardians of the children of others. Those, however, shall be considered centurions of the first company of the triarii who perform the functions of this office. Where, however, one of them dies without discharging his military duties, another officer of this kind shall not be appointed guardian of his children.

9. Ulpianus, On the Duties of the Praetor Having Jurisdiction of Guardianship.

After a tribune has served in the praetorian cohorts he shall be exempt from the guardianship of the children of his colleagues, on account of a privilege granted by the Divine Severus and our Emperor.

10. Modestinus, Excuses, Book III.

However, not only those who have served in the ranks, as well as in the other divisions of the triarii, but also those who, on account of some necessity, have been absent on public business for the benefit of the Roman people, shall be entitled to exemption for the term of one year after their return.

(1) This term of a year is not only granted to those who have completed their ordinary time of military service while engaged in the business for the State, but also to such as have discharged duties of any kind required by the public service, and have returned, even if in so doing they have consumed less time than had been allotted.

(2) Where, however, such persons, were administering guardianships before their departure, and, on this account, relinquished them, because they were absent on public business; after they have returned they must immediately take up their duties again without the benefit of the year of exemption, for this year applies to future and new guardianships, and not to those which should be resumed.

(3) The year of completed days shall be reckoned from the time when the party who is returning takes, or should select, the most direct route, and not one which is circuitous.

(4) Moreover, guardians who are appointed by will can legally refuse to assume the administration of property situated in another province; as is shown by the following Constitution of the Divine Severus: "The Divine Severus and Antoninus, Emperors, to Valerius. If you have been appointed a testamentary guardian, you must appear within the prescribed time and ask to be released from the administration of property situated in another province."

(5) Where one who has completed his service as first centurion of the triarii, has undertaken the guardianship of the son of one of his fellow-soldiers, and has been restored to his position through military necessity, he must relinquish the cares of the guardianship.

(6) In like manner, a curator shall be appointed for minors in the place of the guardian where the latter has become the colleague of the father of said minors; as is set forth in a Constitution of the Divine Severus; and this is applicable to all similar instances, so that a curator can be appointed in the place of such a guardian when he is temporarily released.

(7) Where a freedman, who has not arrived at puberty, is appointed by his patron guardian of his children, or where any minor under twenty-five years of age is appointed, so long as he is under the age of puberty, he shall not be required to discharge his duties, but in the meantime a curator shall be appointed in his place. The rule is the same where the legal guardian happens to be a minor, for a curator shall meanwhile be appointed in his stead.

(8) Where a guardian is ill, but it is not necessary for him to be permanently discharged from the guardianship, a curator shall, for the time, be appointed in his stead, and when he recovers, he shall again resume the performance of his duties. A similar rule applies where a guardian becomes insane. With reference to this, Ulpianus writes as follows: "Illness is a valid excuse, but it must be such an impediment as to prevent anyone from attending to his own affairs"; which our Emperor, together with his father, also stated in a Rescript.

11. Paulus, On the Excuses of Guardians.

This rule not only prevents them from undertaking the duties of a guardianship, but also should cause their discharge where those duties have already been assumed.

12. Modestinus, Excuses, Book III.

Ulpianus said the same thing. But it is added in this Rescript that it is customary for guardians to be released either temporarily or permanently according to the character of the disease with which they are afflicted. Moreover, insanity does not bring about an absolute discharge, but causes the temporary appointment of a curator.

(1) There are also others who, although they are already acting as guardians or curators, can still be instantly released from any remaining responsibility; as, for instance, those who, in obedience to a rescript of the Emperor, have changed their residence, he being aware that they were guardians, and having given his express permission for the change to be made, this fact having been stated in the Imperial Letters.

13. The Same, Excuses, Book IV.

It must be noted that neither guardians appointed by proper authority nor testamentary guardians are required to appeal, as is stated by the Constitution of the Divine Severus and Antoninus. This rule should also be observed with reference to the appointment of a curator, for curators in very few respects differ from guardians. They, however, have permission to appeal from decisions brought against them when they offer excuses.

(1) It is necessary, however, for many formalities to be observed in order that guardians and curators may show good cause for their discharge. They are required, in the first place, to make application to the court within the time prescribed by law, which is as follows. He who is in the same town where he has been appointed, or within the hundredth milestone from said town, shall file his excuse within fifty days, for after this he shall not be permitted to do so, but will be obliged to discharge his duties; and if he does not observe any of these requirements, he will be in the same position as if he had been guilty of negligence, and there will be no way left for him to offer his excuse. Where, however, he is distant more than a hundred miles from the town, he will be entitled to twenty miles for every day from the one on which he received notice of his appointment (and this notice must be served upon him by the Governor either personally, or at his residence) and, in addition to the above twenty days, he shall be entitled to thirty more for the purpose of offering his excuse. This rule likewise applies to all designated by will, whether they are guardians or curators, whose appointments it is customary to have confirmed by a magistrate.

(2) We also find another provision in the Decree of the Divine Marcus, which is worthy of examination. For, indeed, the legislator grants to the guardian who is in the town in which he was appointed, or who is within the distance of a hundred miles from the same, the term of fifty days, but to him who resides beyond the distance of a hundred miles, he grants one day for every twenty miles, and, in addition to these, he allows thirty days for the presentation of his excuses. It results from this that, if the residence of the person is distant one hundred and sixty miles, he would be entitled to a term of thirty-eight days, that is to say, eight days for the hundred and sixty miles, or one day for every twenty miles, and thirty days in addition, in which to make application to be excused. Therefore, he whose residence is farther away is in a worse condition that he who resides within a hundred miles, or in the town itself; for, indeed, the term of fifty days is always granted to the latter, but a shorter time is allowed the former. But although the terms of the law, if strictly interpreted, should be understood in this way, still, the intention of the legislator was entirely different; for Cerbidius Scaevola, Julius Paulus, and Domitius Ulpianus, authorities most eminent and learned in the law, held that this is the case, stating that the rule must be observed that no one shall be entitled to a term of less than fifty days, when the time computed for the journey added to the thirty days which the law allows for the offering of excuses, exceeds fifty days; for instance, if we should say than anyone resides four hundred and forty miles from the town, he will be entitled to twenty-two days to make the journey, and thirty more to present his application to be excused.

(3) All must observe this rule with reference to time who, for any reason whatsoever, desire, either wholly or in part, to be released from the duties of guardianship or curatorship.

(4) It has been decided as the result of this that, where anyone desires to avail himself of any kind of an excuse, he shall not be heard, if he does not make his application within the prescribed time; unless, indeed, he should be a citizen of some other state.

(5) It is so necessary for the prescribed time to be observed, that if this is not done, and the party having presented his excuse should be discharged, he will not be released; as the Divine Severus and Antoninus state in one of their Constitutions which directs that he who has been appointed in the place of a guardian shall not be retained in office, on the ground that it is not lawful for a second guardian to be appointed where there already is one.

(6) It will be sufficient for the guardian to apply to be excused within the prescribed time; for if afterwards, he, having changed his mind, should desist, it will not prejudice him. Therefore, if anyone merely presents himself, and does not afterwards remain for the purpose of offering his excuses, after the prescribed time has elapsed he will be barred by an exception. This is stated in a Constitution of the Emperors Severus and Antoninus.

(7) Where anyone, by reason of illness or any other necessity (for instance, on account of the dangers of the sea, or the severity of the winter, or the attacks of robbers, or any other similar impediment), is not able to appear within the prescribed time, indulgence should be granted him, since his good faith is sufficiently established by natural justice; as the Constitution of the Emperors Severus and Antoninus sets forth.

(8) Again, it should be remembered that it is not sufficient for the guardian to merely appear in court, but he is required to give evidence with reference to the reason for which he asks his discharge, and if he has several reasons to advance which may facilitate it, he must enumerate them all; and if he does not do so, he will resemble a party who has never appeared, or if he did appear, did not show good cause for his discharge.

(9) The fifty days aforesaid are reckoned continuously, beginning from the time of notice served upon the party who was appointed.

(10) It is necessary for the reasons for discharge to be presented orally in court, or by a petition. The party can also reduce his reasons to writing, as the same Emperors declare.

(11) These are the rules having reference to the time prescribed by law which must be obeyed. Now let us consider those who are not required to comply with these rules. Guardians who have not been legally appointed (that is to say, who have been appointed by parties who have no right to do so; or where they were not eligible; or where the wards were responsible for the illegality; or in case the proper legal formalities were not observed), and were not confirmed, and did not administer the trust, will be discharged, and no one can raise the objection that they did not, in their application to be excused, observe the time prescribed by law; for they are not required to make such application, as is proved by the constitutions hereinafter mentioned, which I have submitted by way of example, and which, indeed, are applicable to all cases. "The Divine Severus and Antoninus, Emperors, to Narcissus: Having been appointed guardian by the maternal grandfather of the ward, you are not required to make application to be excused, for you are not legally liable, and therefore if you do not interfere in the administration of the estate you will be secure." Again, in like manner, where magistrates appoint a guardian or a curator who is not subject to their jurisdiction, he will not be required to observe the time prescribed by law, inasmuch as he is neither a citizen, nor a resident of the town.

14. The Same, Excuses, Book V.

Where, in matters relating to the excuses of guardians and curators, reference is had to a freedman, it must be noted that not only the freedman of the father of the ward, but also the freedman of his mother, is understood.

(1) And since we are discussing the children of a patron, it must be noted that this term is not only applicable to descendants in the first degree; that is to say, to sons and daughters, but also to grandchildren on both sides, as well as to those who succeed to them.

(2) And even though a freedman may obtain the right to wear a gold ring, he still retains the rank of freedman, in accordance with what was decreed by Marcus Antoninus.

(3) Where a slave purchases himself with his own money, and is manumitted, he shall never be included among other freedmen.

(4) Where there are several freedmen, one shall be appointed guardian for all the children of his patron, and he shall not be discharged even if he is already administering three guardianships.

15. The Same, Excuses, Book VI.

An eunuch can also be appointed a guardian, and he cannot allege his infirmity as an excuse, as is set forth in a Constitution of the Emperors Severus and Antoninus.

(1) He who has promised to act as guardian of the children of anyone cannot be excused from guardianship, even though he would otherwise have a lawful reason for his discharge.

(2) It must be remembered that occupancy of an office is not a reasonable excuse for anyone. Wherefore, if a party is a Senator, he can be a guardian of persons of inferior rank, as well as of the children of a Senator, as the Divine Marcus and Commodus stated in a Rescript.

(3) Where, however, anyone is the guardian or curator of a ward who is not of Senatorial or other distinguished rank, and he afterwards becomes a Senator, he shall be instantly discharged. His discharge, however, will not take place where the children whose guardianship or curatorship he is administering are of Senatorial rank.

(4) In like manner, anyone who is of inferior rank shall not be excused from the guardianship or curatorship of wards occupying a higher position than himself.

(5) The Constitutions of the Emperors state that neither weighers nor accountants (whom we usually designate as arithmeticians), are entitled to exemption.

(6) Moreover, Jews can be guardians of wards who are not Hebrews, just as they can administer property belonging to other trusts; for the constitutions prescribe that they shall remain unmolested, except under circumstances where the public worship may be contaminated.

(7) An account due to a municipality is not classed as a single guardianship in an application for exemption.

(8) The freedmen of the wives of Senators are not released from the duties of guardianship, even though they may transact the business of their patronesses; for this privilege is only conceded to the freedmen of males of Senatorial rank.

(9) If the Governor of a city, that is a magistrate, incurs the responsibility of guardianship through an appointment, he cannot include this with other guardianships for the purpose of being released; just as the sureties of a guardian, or those who are appointed honorary guardians by will, are not allowed to do so.

(10) He who collects taxes for the State shall not be excused from curatorship.

(11) It has been asked if a person who is able to advance several reasons why he should be discharged, any one of which is not sufficient of itself, can be excused. For instance, where a man has not reached the age of seventy years, and is not administering three guardianships, and has not five children, or cannot allege any other lawful reason to be discharged, but is administering two guardianships, has two children, and is sixty years old; or where he gives several other reasons which, of themselves, do not afford absolute cause for relief, but which altogether would appear to be sufficient to enable him to be excused, it has been held that he cannot be discharged.

(12) Where a person receives, or is entitled to exemption from civil or public employment, he will not, for this reason, be excused from guardianship or curatorship.

(13) Where anyone has been discharged from guardianship or curatorship, he can, under no circumstances, make use of the causes set forth in the documents to obtain a discharge from another guardianship or curatorship, if he does not advance other reasons for said discharge.

(14) Anyone who states that he was not known to the father or mother of the ward shall not be excused on that account.

(15) Moreover, where anyone has the administration of three guardianships or curatorships, he has no right to be excused from the administration of a fourth; for instance, if he has manifested a desire to accept it. A guardian, however, is only held to have manifested such a desire, who manages a moderate estate.

(16) Ulpianus states in his work on Exceptions, that where a party is administering as one of three guardianships, that of his emancipated son: "I know that a doubt has arisen as to whether this can be asserted in his favor where he applies to be excused from a fourth." I find, however, that a Rescript exists where the guardianship of an emancipated daughter is allowed to be included among other guardianships for this purpose.

(17) Where anyone under paternal control is appointed a guardian, and his father refuses to become his surety, the laws direct that the father himself shall be made guardian, and that the security of the guardianship shall in no way be interfered with, as is stated in a Constitution of the Divine Hadrian, which is as follows: "The Emperor Hadrian to Bitrasius Pollio, Deputy at Lyons. If Claudius Macer, although he is a son under paternal control, appears to be a suitable person to be a guardian, and his father is unwilling to provide security for him, in order that he may deprive his son of the guardianship, and he continues to display this perfidious spirit, I think that you can properly counteract this fraud by compelling both his son and himself to administer the guardianship of the children of Clement."

16. The Same, Opinions, Book II.

Gaius, by his will, appointed Nigidius guardian of his son, and also appointed him curator until his son had reached his twenty-fifth year. I ask, since it is lawful for Nigidius to be excused from the curatorship without an appeal, from what day the time fixed by the Divine Marcus to be observed in the application for discharge shall be reckoned; whether this shall be done from the day when the will is opened, or from that when the guardian is called upon to transact business; that is to say, after the ward has completed his fourteenth year? Modestinus answered that the application to be excused from the curatorship must be made at the time when the curator was confirmed by the decree of the Praetor or Governor.

17. Callistratus, On Judicial Inquiries, Book IV.

Not only the value of the estate to be entered upon, the administration of which is to be undertaken in the case of three already existing guardianships, but also the ages of the wards, must be considered. For if the ages of the first wards are approaching puberty, so that only a term of six months remains, or if the age of those, the assumption of whose guardianship is involved, is not far from puberty, an excuse will not be allowed. This matter is provided for by the Imperial Constitutions.

(1) Complete exemption was long since granted to the Trojans, both by Decrees of the Senate and Constitutions of the Emperors, on account of the renowned nobility of their city and their connection with the origin of Rome, where wards are concerned who are not Trojans. This the Divine Pius stated in a Rescript.

(2) Those who belong to certain associations, as, for example, to that of artisans, We declare to be entitled to exemption, for they can be excused from the administration of the guardianship of persons who are not members of their organization, in order to compel them to undertake other public employments, even if their property has been subsequently increased. This is also provided for in the Imperial Constitutions.

(3) All bodies or associations, however, are not entitled to be released from the duties of guardianship, although they may not be obliged to assume municipal offices, unless this privilege has been expressly granted them.

(4) He who is performing the duties of aedile may be appointed a guardian; for the office of aedile is included among those magistracies whose incumbents are exempt from private employments, according to a Rescript of the Divine Marcus.

(5) It must, indeed, be noted that it has been settled that those invested with public office are released from the duties of guardianship. Those are exempt who, being already in office, are called upon to undertake the duties of guardianship; but it should also be noted that those who have already been concerned in the administration of its duties are not excused, even during the time of their magistracy.

(6) The masters of ships, among their other privileges, do not seem to enjoy that of being exempt from guardianship. This the Divine Trajan stated in a rescript.

(7) Those who dwell in camps are usually exempt from guardianship, except with reference to that of parties who themselves reside in the same camp, and are of the same condition.

18. Ulpianus, On the Lex Julia et Papia, Book XX.

Where children are lost in war, this fact affords a valid excuse for release from guardianship. A question arose, however, as to who these children are, whether they are such as are killed in battle, or whether they include all those who are taken from their parents on account of war; as, for instance, those lost in a siege. The preferable opinion is that only those who are killed in battle, without reference to their sex or age, should afford a valid cause for release, for they have lost their lives for their country.

19. The Same, On the Edict, Book XXXV.

It is customary for those guardians who have their residence in Italy to be excused from the administration of provincial matters.

20. Julianus, Digest, Book XX.

When the uncle of a ward alleges that the latter has been disinherited, and that he himself was appointed heir, it is but just for the excuse of the uncle to be accepted, and for a guardian to be appointed for the ward; or, if he is unwilling to petition to be released, he shall be removed from the guardianship, in order that the contest with reference to the estate may be expedited.

21. Marcianus, Institutes, Book II.

No one can be excused from guardianship on account of a lawsuit which he has with his ward, unless all the property of the latter, or the greater portion of it, is involved in the controversy.

(1) Where a party wishes to be excused, and has several reasons to advance for that purpose, and is unable to prove some of them; he is not prohibited from making use of the others within the time prescribed by law.

(2) Even though a guardian has been appointed for the administration of the entire estate of the ward, he can, nevertheless, make application to be excused from administering the guardianship of property situated beyond the hundredth milestone; unless the estate of the ward is all in said province. For this reason the Governor of the province shall appoint a guardian for said property.

(3) Nor can Senators be compelled to administer a guardianship beyond the hundredth milestone.

(4) A guardian can be appointed for a ward who already has one, but this must be for the management of other property.

22. Scaevola, Rules, Book I.

Surveyors are not exempt from the duties of guardianship.

(1) Those to whom the Emperor has committed the transaction of any business can be excused from guardianship so long as they are transacting it.

23. Ulpianus, Opinions, Book II.

I have already stated that a person has not a valid excuse for release from guardianship on account of some magisterial office, the duties of which he should discharge in a municipality.

(1) I have given it as my opinion that where a soldier is serving in camp, he has a right to be excused if he is appointed guardian for someone who is not serving in the same camp.

24. Papinianus, Questions, Book XI.

It must by no means be believed that he is deprived of the privilege of being excused who has obtained his freedom by means of a trust; for in almost every instance of this kind, the party who manumits a slave obtains no right as patron against the person of the freedman, except that the latter cannot summon him into court without the order of the Praetor.

25. Ulpianus, On the Office of the Proconsul, Book II.

A guardian cannot state his reasons to be excused in a petition.

26. Paulus, On Excuses.

It is apparent from a Rescript of the Divine Marcus and Antoninus, addressed to the Prefect of Subsistence, that the measurers of grain have a right to be excused from guardianship.

27. Marcianus, Rules, Book V.

Where a legatee is charged to surrender his entire legacy to another, and desires to be released from the responsibility of guardianship, he will obtain his legacy for the purpose of delivering it to the beneficiary; this case being similar to that of an heir who brings an action claiming that the will is void, and loses his case.

28. 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.

(1) Where 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.

(2) Where 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.

29. Marcianus, Institutes, Book II.

It is evident that if the guardian is sentenced to perpetual exile, he can be released.

(1) Moreover, the ignorance of an exile will be the more readily pardoned, since he could not have established the suspicious character of his fellow-guardian.

30. 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.

(1) Where the native of a province fixes his residence at Rome, his curator, appointed by a decree of the Governor and the Praetor, 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.

(2) He who enjoys the benefit of exemption cannot be compelled to undertake the curatorship of his brother.

(3) A 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.

31. Paulus, Questions, Book VI.

If a man, while administering three guardianships, should be appointed by different decrees guardian of two other wards, he can be excused; and if, before he states the reasons why he should be excused, one of the wards whose guardianship he was administering should die, from this time his excuse will not be available, and he will, at once, be bound by the first decree; which is just as if the fourth guardianship was substituted for the third, since he was guardian in accordance with law before he was excused. Therefore he can be excused from the guardianship of him who now occupies the fourth place, and as he was not excused, he must necessarily also undertake the responsibilities of the other, that is, the third guardianship. It raises no difficulty in my mind, if anyone should say that the guardian is not required to administer this guardianship, for the matter to be considered is whether its administration is terminated by the death of the ward. Moreover, I think that he will also be liable for the guardianship, if he assumes the responsibility of failing to administer it.

(1) This can also occur where a guardian is appointed by two different wills, at the time when he is already administering three other guardianships; and, in this instance, it is not the time when the wills were opened which should be considered, where the question arises which guardianship was first conferred, but the time when the estate was entered upon, or when the condition upon which the appointment depended was carried out.

(2) This difference also exists between the guardianships of which we have treated, where the third and fourth appointments are made, although the guardian is first held liable for the administration of the fourth, because it is this one, that is to say, the fourth, which he is ordered to administer, and he must bear the responsibility of the other from the day upon which he was appointed.

(3) I think that a guardian who has caused his ward to reject the estate of his father should be retained in the fourth guardianship, the former one being, as it were, rejected.

(4) Moreover, I think that the Praetor will act in accordance with law, where he holds that only one guardianship will be sufficient; if it is so extensive and involves so many business requirements that it is equal to several. Hence, brothers who are entitled to equal shares of an estate should not be considered as being subject to several guardianships; or even if the wards are not brothers, where they have the same patrimony, and a single account of the administration must be rendered by the guardian, the same rule will apply. On the other hand, where there are two distinct estates belonging to brothers, two guardianships must be established; for, as I have already stated, it is not the number of wards, but the difficulty of drawing up and rendering the accounts that must be taken into consideration.

32. The Same, Questions, Book VII.

Nesennius Apollinaris to Julius Paulus. A mother appointed her minor son her heir, or some stranger appointed a minor who was also a stranger, his heir, by will, and left a legacy to Titius, appointing him a guardian of the said ward. Titius, after having been confirmed, was excused from the guardianship. I ask whether he will lose his legacy. And what would be the case where a guardian was not appointed by will, but accepted a legacy, and having been appointed guardian by the Praetor, is excused; can he justly be deprived of the legacy; or does it make any difference where a guardian is appointed for a minor who has been emancipated, or a curator for a child arrived at puberty, by his father? I answered that where a guardian or a curator was illegally appointed by the father, and has been confirmed by the Praetor, he shall be deprived of the legacy, if he prefers to avail himself of the privilege of being excused, and this was also held by Scaevola; for, in fact, the Praetor who confirmed the guardian only carried out the wishes of the deceased. The same rule must be held to apply to the will of the mother. The following instance is similar to that of the mother, namely, where a stranger appoints a minor his heir, and wishes to provide for the appointment of a guardian for him, as is the case with children whom we have brought up. Therefore, it was very properly held that he who refuses to do what the testator required should be deprived of what the latter gave him. I do not think, however, that one who has renounced the responsibilities of guardianship can always be deprived of his legacy, but only where it is apparent that the legacy was bequeathed to him because the party charged him with the guardianship of his children, and not where he would have given it to him in any event, even without the guardianship. This can be established if you insert the legacy in the will, and afterwards appoint a guardian by a codicil; for, in this instance, it cannot be said that the legacy was bequeathed to him because the testator desired him to act as guardian.

33. The Same, Questions, Book XXIII.

This distinction, however, seems to be too finely drawn, and should not be admitted, unless the father plainly stated that he wished to bequeath the legacy, even if the legatee should not administer the guardianship; for a legacy is always presumed to have been given for this purpose, whether it precedes or follows the appointment of a guardian.

34. The Same, Questions, Book VII.

From this it is apparent that he whom the Praetor appoints as guardian should not be included in the same class with such legatees; since he can make use of his right to be excused, as he does nothing in contravention of the will of the testator, for, since the latter did not appoint him guardian, we cannot say that he wished him to administer the guardianship of his son.

35. The Same, Questions, Book XXIII.

But what if the guardian was not excused, but declined to administer the property, contending that the other guardians were solvent? Suit can be brought against him if the ward cannot recover from the others. He ought not, however, to obtain the bequest, and his obstinacy should be punished, because to a certain extent he attempted to excuse himself. Much more should anyone be declared to be unworthy of the bounty of the father, who has been removed from the guardianship because of being suspected.

36. The Same, Opinions, Book IX.

Parents are accustomed to select their dearest and truest friends as guardians for their children, and for this reason they bestow legacies upon them, in order to induce them to assume the burden of guardianship. But where such a person has obtained a legacy by will, and has also been substituted for the ward, it is not probable that the testator intended him to be substituted, if he should undertake the guardianship, and therefore the party in question should be deprived of the legacy if the ward is living; but he cannot be excluded from the substitution, as, in this instance, even if the guardianship is undertaken it would be terminated.

(1) Lucius Titius, out of three sons, had one who was emancipated and of an age to entitle him to have a curator. I ask whether the said Titius, when the said emancipated son petitioned for his father to be appointed his curator by the Praetor, can have recourse to the public law, and demand exemption on account of his three sons. I answered that this privilege cannot be denied the father, for the reason that he is entitled to it on account of the number of his children; but that when he is asked to be the curator of his son, he will act contrary to the instincts of nature, if he should attempt to make use of an excuse of this description.

37. Scaevola, Opinions, Book II.

A testamentary guardian stated in the presence of the Praetor that he had three children; and added that the minor had an uncle who was his legal guardian, and that he himself had been improperly appointed. The decree of the Praetor was as follows: "If you have been appointed guardian for a minor who has a legal guardian, it is not necessary for you to apply to be excused." I ask, when there is really no such uncle who can be the guardian of the minor, whether the appointment of the testamentary guardian will nevertheless stand. I answered that, according to the case stated, although the party may have good reasons to be excused, still, he cannot be released on account of the irregularity of his appointment.

(1) I also ask, if the guardian acquiesces in the decree, whether an equitable action can be granted against him, for the reason that he did not transact the business of the guardianship. I answered that if he failed to administer the guardianship, rather through mistake, because he alleged that he was legally exempt on account of his three children and thought that he ought to be excused, rather than from malice, an equitable action should not be granted.

38. Paulus, Opinions, Book II.

The term of fifty days previously mentioned has reference only to contesting the reasons alleged for exemption, as four continuous months are allowed for the settlement of the case.

39. Tryphoninus, Disputes, Book XIII.

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

40. Paulus, Opinions, Book II.

If, after the trust has been undertaken, the guardian becomes blind, deaf, dumb, insane, or a chronic invalid, he can lay aside the guardianship.

(1) Poverty, which renders the guardian unequal to the labor and burden of guardianship, usually affords exemption.

41. Hermogenianus, Epitomes of Law, Book II.

Persons who are transacting public business through favor of the Emperor are excused from guardianship, as well as curatorship, during the time of their administration, even though no special letters have been issued for this purpose.

(1) The same rule applies to those who have charge of the Prefecture of Subsistence, or command the Night Watch.

(2) The attendance of persons absent on public business, who are of the prescribed number, are excused from guardianships to which they may have been appointed, either while absent, or before their departure; but they cannot resign a guardianship where it has already been undertaken.

(3) Persons who are entitled to exemption on account of their connection with some corporate body or association to which they belong are not excused from the guardianship of their colleagues, or of their children, with the exception of those to whom this privilege is expressly granted.

42. Paulus, Concerning Judicial Inquiries.

It is clear that they are not compelled to accept the guardianship of the children of their colleagues, if they reside more than a hundred miles from the City.

43. Hermogenianus, Epitomes of Law, Book II.

The freedman of a Senator who is administering the guardianship of the children of the latter will not be excused from other guardianships.

44. Tryphoninus, Disputations, Book II.

In compliance with a Decree of the Divine Marcus, where a freeborn man was appointed guardian of one who is emancipated had a right to be excused, our Emperor, along with his father, the Divine Severus, stated in a Rescript that the same cause for release could also be advanced by anyone who had obtained the right to wear a gold ring.

(1) Therefore, if a freeborn guardian or curator is appointed for an emancipated ward, entitled to wear a gold ring, the result is that an application to be excused offered by him on account of a difference of condition should not be accepted.

(2) If, however, before the ward or minor under twenty-five years of age has acquired the right to wear a gold ring, Lucius Titius, having been appointed his guardian, should be excused on account of his being freeborn, he can be appointed a second time the guardian or curator of said minor, after he has obtained this privilege; for the same reason that it has been decided, and stated in a Rescript, that a guardian shall be excused who has been appointed within a year after he had returned from employment in the public service, and that period having elapsed, he can be appointed in his own place.

(3) And, although a freedman who acts as agent for the transaction of the business of his patron, a Senator, has a valid excuse for not assuming the guardianship of others, still, he who has acquired the right to wear a gold ring and by this means passes into the rank of freeborn persons cannot avail himself of an excuse of this kind.

45. 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.

(1) Where, 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.

(2) Where a curator is appointed by the Praetor 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.

(3) We should only understand guardians as being appointed at Rome who are named either by the Prefect of the City, or by the Praetor, or in a will executed at Rome, or in houses adjoining the City.

(4) Where 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.

46. Paulus, On Judicial Inquiries.

Members of the guild of millers are excused from the duties of guardianship, provided they are actually engaged in the business; but I do not think that those who are merely included in their number should be excused.

(1) Millers residing in the City are excused from acting as guardians, even for the children of their colleagues.

(2) Where anyone states that his residence is not situated where he was appointed guardian, this can also be alleged as a valid excuse. Attention was called to this point by the Emperor Antoninus and his Divine Father.
 

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Tit. 2. Where a ward should be brought up, or reside, and concerning the support which should be furnished him.

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1. Ulpianus, On the Edict, Book XXXIV.

The Praetor is frequently called upon to determine where children must be supported or reside, not only such as are posthumous, but all kinds of children.

(1) It 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 Praetor 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 Praetor should determine in the presence of near relatives of the child whether this should be done; as the Praetor should act so that the ward may be supported and brought up by someone to whom no evil suspicion could attach.

(2) Although the Praetor 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.

(3) It 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. 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.

(1) The amount of the expenses allowed by the Praetor 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.

(2) And besides, even where the Praetor 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 Praetor 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 Praetor, either the amount allowed would have been decreased, or so large a sum would not have been authorized by the decree.

(3) Where 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 Praetor to have the allowance diminished.

3. The Same, On All Tribunals.

The Praetor 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.

(1) When the Praetor 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.

(2) In 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.

(3) Still, 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.

(4) Where, 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 Praetor 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.

(5) The Praetor 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.

(6) Where, 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. 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, 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, 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 Praetor 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.
 

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Tit. 3. Concerning the action to compel an accounting for guardianship, and the equitable action based on curatorship.

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1. Ulpianus, On the Edict, Book XXXVI.

In this action a guardian must render an account of everything that he did, of every act which he should not have committed, as well as of those which he failed to perform; and he shall be responsible for malice, negligence, and a lack of such diligence as he would employ in his own affairs.

(1) For this reason, the question is asked by Julianus, in the Twenty-first Book of the Digest, whether a guardian is liable to an action on guardianship in case he authorized his ward to make a donation mortis causa. He asserts that he will be liable, for he says that this resembles the execution of a will, a right not granted to wards, and thus they should not be permitted to make donations mortis causa.

(2) But where a guardian permits his ward to make a donation which is not mortis causa, Julianus states that there are many authorities that hold that the donation is not valid, and this is generally true, but some instances may arise in which a guardian can, without blame, allow his ward to diminish his estate; for example, where a decree of the Praetor authorized it, as where the guardian furnished support to the mother or sister of the ward who have no other means of subsistence. For he says that, as the judgment in a case of this kind is rendered in good faith, no one can tolerate that either the ward or his substitute should complain because persons so nearly related to him have been provided with food. On the other hand, he thinks that an action on guardianship can be brought against the guardian, if he neglects the performance of so plain a duty.

(3) A guardian is required to keep accounts of his administration and render them to his ward. For if he does not do so, or does not produce them after they have been made out, he will be liable on this ground to an action on guardianship. It has been established that slaves can be examined and put to the question to obtain information, and this is a part of the duty of the judge; for the Divine Severus decreed that in case neither an inventory nor an account of sales was produced, this remedy should be used in order that accounts might be obtained from the slaves who had transacted the business; and if the guardians should allege that these accounts had been fraudulently made up by the slaves, that the latter could also be interrogated, after having been put to torture.

(4) Moreover, where a guardian has furnished support to the mother of a ward, Labeo thinks that he will not be responsible. The better opinion, however, is that, unless he provided for her when she was in absolute want, he will not be responsible where the estate of the ward is large. Hence, both of these conditions must exist, namely, the mother must be in want, and that the son in possession of considerable property.

(5) But if the guardian should give a wedding present to the mother at the time of her second marriage, Labeo states that he will not be responsible to the ward for the same. And yet a gift of this kind is by no means a necessary one.

(6) Where a father appoints several guardians for his children, and one of his freedmen among them, and desires the guardianship to be administered by the latter, and the other guardians agree upon a certain sum to be paid to him, because otherwise he would not be able to support himself, Mela is of the opinion that the account of what has been allowed should be rendered.

(7) And therefore, where a guardian was appointed after an examination instituted to ascertain the condition of the estate of the ward, and his fellow-guardians have allowed him support, they should render an account of this, because there is a good reason for doing so.

(8) But if the guardian has furnished provisions to slaves or to freedmen, who were actually necessary for the transaction of the affairs of the ward, it must be said that an account must be rendered of it. The same rule applies to the case of freemen, if a good reason exists for rendering the account.

(9) Moreover, a guardian must account for the costs of a legal action, and for travelling expenses if, in the performance of his duties, it was necessary for him to go anywhere, or to make a journey.

(10) We must now consider instances where several guardians administer the affairs of a ward, and for what proportion each one of them should be sued.

(11) And, indeed, where all of them have administered the guardianship at the same time, and they are all solvent, it is perfectly just that the action should be divided among them equally, just as in the case of sureties.

(12) Where, however, all of them are not solvent, the action should be divided among those who are, and each of them can be sued in proportion to his pecuniary responsibility.

(13) Where a guardian, having been held liable for an act of his fellow-guardian, makes payment, or where he does so in case of an administration in common, and the rights of action have not been assigned to him, it was decreed by the Divine Pius, as well as by our Emperor and his father, that a praetorian action should be granted to the said guardian against his colleague.

(14) It is evident that where a guardian, who has been sued on account of fraud committed by himself and his fellow-guardians, makes payment, the rights of action should not be assigned, nor will a praetorian action lie, because he is suffering the penalty for his own offence, which renders him unworthy to recover anything from the other participants in the fraud. For no association of malefactors is recognized by the law, nor can any legal contribution for injury arise out of the commission of a crime.

(15) Therefore, where guardians are solvent, recourse cannot be had to their fellow-guardians, since in the first place application should be made to the magistrates who appointed them, or to their sureties; and this rule our Emperor stated in a Rescript to Ulpius Proculus. For Marcellus says, in the Eighth Book of the Digest, what had been very frequently set forth in Rescripts, namely, that when one of two guardians is solvent, recourse cannot be had to the magistrate who appointed them; but this is to be understood to apply only where the fellow-guardian was not removed because he had rendered himself liable to suspicion, or where the other did not require him to give security.

(16) It is settled that this action will also lie against the heir of a guardian.

(17) It can also be brought by the heir of a ward, and by similar persons.

(18) A guardian can demand that the rights of action against his fellow-guardian, on whose account he has had judgment rendered against him, can be assigned to him, not only before, but even after his condemnation.

(19) In an action to compel an accounting, not only are guardians at law liable, but all those who legally administer the estate in this capacity.

(20) In this action, should it be considered whether only double damages shall be paid, or the amount in which the ward is interested, in addition? I think the better opinion is that in this action the interest of the ward is not concerned, but merely the value of the property.

(21) It is settled that, under a guardianship, there are two rights of action arising out of a single obligation, and therefore if an action on guardianship is brought, one to compel an accounting will not lie; but, on the other hand, the right of action of guardianship which has reference to this matter is extinguished.

(22) Papinianus, however, says that a guardian who has appropriated the money of his ward is also liable to an action of theft. And if he, having been sued in this action, is held liable for theft, he will not be released from liability to an action for theft, for the liabilities incurred by theft and guardianship are not identical; so that it may be said that two suits can be brought for the same act, and there are likewise two obligations, for liability arises both from the guardianship and the theft.

(23) It should be noted that this action is a perpetual one, and is granted to the heir and his successors, to recover whatever was stolen from the ward during his lifetime. It shall not, however, be granted against the heir and his successors, because it is a penal one.

(24) This suit then can be brought whenever there is an action on guardianship, that is to say when the guardianship is terminated.

2. Paulus, On Sabinus, Book VIII.

No one is liable to an action to account for the appropriation of property, unless the guardian abstracted it during his administration of the guardianship.

(1) Where he acted with the intention of stealing, he will also be liable to the penal action for theft. He is, therefore, liable at the same time to both actions, and one of them does not release him from the other. An action for the recovery of the property on the ground of theft will also lie, and if the ward should recover the stolen goods by means of it, this right of action will be extinguished, for the reason that the ward has lost nothing.

(2) Although this action is brought for double the amount, the recovery of the property is only half, and the penalty is therefore not double.

3. Pomponius, On Sabinus, Book V.

Where an action on guardianship, based on voluntary agency, is brought, and the amount due to the guardian or curator from his adversary is uncertain, security should be given by order of the judge to make good his loss on this account.

4. Paulus, On Sabinus, Book VII.

An action on guardianship can not be brought until the latter is terminated. It is terminated not only by puberty, but also by the death of the guardian or the ward.

(1) Julianus thinks that a son who has been emancipated can be held directly liable, if he has administered the guardianship.

(2) If he is still under the age of puberty, while administering the guardianship, his acts are void.

(3) An action on guardianship will not lie against the curator of an insane person, but an action on the ground of voluntary agency must be brought, which will lie while he is still transacting the business; because the same rule does not apply in this action, as in one on guarddianship, so long as he whose guardianship is being administered has not reached puberty.

5. Ulpianus, On Sabinus, Book XLIII.

Where a guardian does not return property deposited or loaned for use to him by the father, he is liable to an action, not only on the loan or deposit, but also on guardianship; and if he has received money to induce him to restore the property, it is held by many authorities that the said money can be recovered either by an action on deposit, or loan, or by a personal one. This opinion is reasonable, because the property was dishonorably acquired.

6. The Same, On the Edict, Book XXXI.

Where a son under paternal control has administered a guardianship, and, after having been liberated, is guilty of fraudulent conduct; the question arises whether an action on guardianship on this ground will lie against the father. It is just that the father should only be liable for the fraud of his son where the latter committed it before being emancipated.

7. The Same, On the Edict, Book XXXV.

Where one ward becomes the heir of another whose trust his own guardian has administered, he will be entitled to an action against his guardian on the ground of inheritance.

(1) Where a guardian falls into the hands of the enemy, for the reason that the guardianship is understood to be terminated, an action can legally be brought against his sureties who have rendered themselves liable for the preservation of the property, and against anyone who appears as his defender, and is ready to conduct the case, whoever may be appointed the curator of his estate;

8. Papinianus, Questions, Book XXVIII.

Even though the guardian may be reinstated in his former guardianship by the right of postliminium.

9. Ulpianus, On the Edict, Book XXV.

Where a guardian is away in the service of the State, and on this account has been excused during his absence, there is ground for an action on guardianship. Where, however, he ceases to be in the service of the government, and is discharged in consequence, anyone who is appointed in his stead can be sued in an action on guardianship.

(1) Where a guardian has been appointed for two brothers who have not reached puberty, and one of them comes under the legal guardianship of a brother who has attained his majority, Neratius says that the guardian who was appointed ceases to hold office. Therefore, for the reason that he is no longer guardian, the action on guardianship will lie against him in the name of the ward, although if he was appointed by will, he would not cease to be the guardian of the minor who is still under puberty, because testamentary guardianship always enjoys the preference over guardianship-at-law.

(2) Where a guardian is appointed by will, under a certain condition, and, in the meantime, another is appointed after an investigation, it must be held that there is ground for an action on guardianship, when the condition has been fulfilled, for the reason that the guardian ceases to be such.

(3) The same rule must be held to apply where a testamentary guardian has been appointed for a certain time.

(4) And, generally speaking, what has been handed down, namely, that a ward cannot bring a tutelary action against his guardian, is only true where the same guardianship is in existence; for it would be absurd for an account to be demanded for the administration of the business of a ward, where the guardian was still transacting it; still, where the guardian has ceased to do so, but a second time assumes the administration of the trust, he will be responsible to the ward for his former conduct during the guardianship, in the same way as if he had borrowed money from his father. Let us consider what would be the result of this opinion. It is evident that if there is but one guardian, he cannot proceed against himself, and he must be sued by a curator appointed for that purpose; but, suppose that he already had another guardian, who could bring an action on guardianship against his colleague, and conduct it? Not only is this the case, but if in the meantime he should cease to be solvent, his fellow-guardian can be held liable, because he did not bring an action against him in the first place.

(5) Where a curator is added to a guardian, even though the latter may have been denounced as suspicious, he will not be compelled to defend an action on guardianship, because the guardian is still in office.

(6) Where, however, the property of a guardian has been confiscated, it is established that an action should be granted against the Treasury to him who has been appointed curator in his stead, or to his fellow-guardians.

(7) The other actions, with the exception of that of guardianship, will lie against the guardian, even though he is still administering the trust; as, for instance, those of theft, damage, injury, and for the recovery of specific property.

10. Paulus, On the Abridgment of the Edict, Book VIII.

These actions are not granted to the ward as long as the guardian administers the guardianship, although they are extinguished by the death of the latter. The ward, however, will still be entitled to his action against the heir, because he is obliged to pay him.

11. Ulpianus, On the Edict, Book XXXV.

Where a son under parental control administers a guardianship, and then is emancipated; Julianus says that he still remains guardlian, and when his ward grows up, an action can be brought against him for whatever he was able to pay during the time before he was emancipated, and after his emancipation for the entire amount; but his father can only be sued to the extent of the peculium. For the action de peculio will still lie against him after he has attained puberty; as the year from the emancipation within which an action de peculio is granted will not begin to run before the guardianship is terminated.

12. Paulus, On the Abridgment of the Edict, Book VIII.

However, a son who is a guardian, cannot, on this ground, bring an action against his father before arriving at puberty; for this cannot be required of him, even after the guardianship is terminated.

13. Ulpianus, On the Edict, Book XXXV.

Where a guardian administers the affairs of his ward after puberty, he will be liable to an action on guardianship only for the amount without which his administration could not be conducted. Where, however, the guardian of a ward after puberty sells his property, or purchases slaves and land; an account of said sale or purchase will not be included in the action on guardianship; and it is true that only those matters which are connected with the guardianship are embraced in a proceeding of this kind. It is also true that if the guardian continues to administer the affairs of the trust after the latter has been terminated, the action on guardianship becomes merged in that of voluntary agency; for it becomes necessary for the guardian to exact from himself what is due by reason of the guardianship. Where, however, anyone after administering the guardianship is appointed curator of a minor, it must be said that he can be sued on the ground of voluntary agency.

14. Gaius, On the Provincial Edict. Book XII.

If, after the ward has reached puberty, the guardian should relinquish the administration even for a very short time, and afterwards resume it, there is no doubt that he can be sued in an action on guardianship, as well as in one on voluntary agency.

15. Ulpianus, Disputations, Book I.

Where a ward transacts business with one of his two guardians, and this results in his loss, the transaction will not benefit the other guardian, where both are guilty of fraud; nor is this unreasonable, since each one of them must pay the penalty for his fraudulent conduct. But if one of them, having been sued, should pay the ward what is due to him, this will release the other guardian against whom suit was not brought; for, even though both are guilty of fraud, still, it is sufficient for one of them to make payment; and the same rule applies as where property is loaned to, or deposited with two persons, to whose care it has been entrusted.

16. The Same, On the Edict, Book LXXIV.

If the action on stipulation is brought against a guardian while he is still administering the trust, or against those who represent him, a doubt will arise as to whether an action on guardianship cannot be brought, and whether one on stipulation will not lie. Many authorities think that this action should also be deferred, for reasons of convenience.

(1) The action can also be brought against the curator of a ward or a minor, even while the curatorship is still in existence.

17. The Same, On the Duties of Consul, Book III.

The Emperors Severus and Antoninus stated the following in a Rescript: "Since the question arises whether anything is due to you from guardians or curators, your petition is unreasonable, as you desire them to furnish the money to you for the expenses of the suit."

18. Papinianus, Questions, Book XXV.

Where a guardian who is administering the affairs of a ward that has not yet reached puberty induces him to reject the estate of his father, a discussion usually arises whether an equitable action can be granted a ward after the property of his father has been sold. It is held that the action should be divided between the ward and the creditors of the father, in such a way that any deficiency in the account of the property due to the agency of the guardian shall be made up to the creditor. But whatever loss has ensued, either through the fraud or negligence of the guardian in causing his ward to wrongfully reject the estate, shall be left to the boy to be recovered by an action. The above-mentioned action undoubtedly will not lie before the ward has reached puberty, but is granted at once to the creditors.

19. Ulpianus, Opinions, Book I.

Where a claim due from a debtor has been approved by the last curator, the guardian cannot be sued for the claim.

20. Papinianus, Opinions, Book II.

It has been decided that the minor heir of one of two curators is entitled to complete restitution where the judgment was for the full amount. This proceeding will not afford a ground of action for recovery against the other curator, as having been required to pay a smaller sum of money than he should have paid, where the plaintiff is not of an age when he can obtain relief by law; but, on the ground of equity, relief should be granted him by means of a praetorian action to the extent that the other curator has been released from liability.

(1) Therefore, the suit which is granted, after the age of twenty-five, within the time fixed by law, for restitution against a guardian who has had judgment rendered against him in an action on guardianship, will not be useless; for the reason that the minor curators have had judgment rendered against him on account of this neglect. Hence, if the judgment has not been satisfied by the curators, the latter can, by means of an exception on the ground of fraud, compel the rights of action of the ward to be assigned to them.

21. The Same, Definitions, Book I.

When a ward transfers his right of action on guardianship to the guardian against whom a judgment has been rendered in full, to be enforced against his fellow-guardian, the right of action will not be extinguished, even though this is done after the judgment has been satisfied, because it is held that an account is not rendered for the share of the defeated guardian, but that the amount of the claim has been paid.

22. Paulus, Questions, Book XIII.

Where a defender of a guardian loses the case, he does not deprive the ward of his privilege, because the latter did not voluntarily contract with him.

23. The Same, Opinions, Book IX.

Where the heir of a guardian has been sued in an action on guardianship, his curator is not held to be released by operation of law, nor will an exception be granted him on the ground of res judicata. The same rule shall be observed with reference to the heirs of magistrates.

24. The Same, Decisions, Book II.

Where a guardian is appointed for a posthumous child, who is still unborn, an action on guardianship will not lie, for the reason that there is no ward, nor will he be liable as a party acting as a guardian because such a proceeding has no significance, nor can he be sued on the ground of voluntary agency, as he is not considered to have administered the affairs of an individual who is unborn, and therefore an equitable action will be granted against him.

25. Hermogenianus, Epitomes of Law, Book V.

Not only is the privilege of guardianship granted in favor of a ward against the property of a guardian, but also against that of one who has acted in his stead, as well as in the case of the curatorship of a male or female ward, or an insane man or woman, where security has not been furnished on this account.
 

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Tit. 4. Concerning the counter-action on guardianship and the praetorian action.

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1. Ulpianus, On the Edict, Book XXXVI.

The Praetor granted a counter-action on guardianship, and introduced it in order that guardians might the more readily accept the management of the trust; being aware that the wards would also be bound to them as the result of their administration. For although wards are not liable without the consent of their guardians, neither can a guardian compel his ward to encumber his property in his favor; still, it is admitted that a ward can be civilly responsible to his guardian as the result of his administration. For guardians must be urged in order to induce them to pay anything out of their own property for the benefit of their wards, though they know that they will be reimbursed for what they have expended.

(1) This action will lie, not only against a guardian, but also against anyone who transacts business in his behalf.

(2) It must be said, moreover, that where there is a curator either of a ward, a minor, an insane person or a spendthrift, the counteraction should also be granted to him. The same rule has been established with reference to the curator of an unborn child. This was the opinion of Sabinus, who held that the counter-action should also be granted to other curators for the same reasons.

(3) We hold that this action is available by a guardian after his term of office has expired, but so long as it lasts it will not lie. Where, however, a party transacts business in behalf of a guardian, or even administers a curatorship, there is ground for this action without delay, because in this instance, an action can also immediately be brought against him.

(4) Moreover, where anyone is sued in an action on guardianship, he can include in his account whatever he has expended on behalf of his ward. Therefore, it will be at his option to determine whether he will demand a set-off, or bring suit for his expenses. But what if the judge is unwilling to accept the account of his set-off, can he avail himself of the counter-action? He can undoubtedly do so. Where, however, his account has been rejected, and he has acquiesced, if he brings the counter-action, the judge ought not to decide that he shall be reimbursed for what he has expended.

(5) The question arises whether, in a proceeding of this kind, not only the expenses incurred for the benefit of the ward or for that of his property shall be included, but also whatever is owing to the guardian for other reasons (as, for instance, by the father of the ward, if anything should be due). I think the better opinion is that as the action brought by the guardian is undisputed, the counter-action should not be considered.

(6) Let us see, however, what should be done where the guardian had deferred reimbursing himself on account of his office, and therefore did not collect what was due to him. Can he be indemnified by means of a counter-action on guardianship? The latter seems to be the best opinion, for just as whatever the guardian has expended for the benefit of his ward can be recovered by the counter-action, so also he should recover what is due to himself, or obtain sufficient security for the claim.

(7) I think that if an obligation arises for any cause which is barred by lapse of time, the counter-action on guardianship will lie.

(8) It is held that this action should be granted even if suit is not brought in an action on guardianship, for sometimes the ward is not willing to institute proceedings on guardianship, for the reason that nothing is owing to him; or, on the other hand, more expense has been incurred in his behalf than should have been done; in which instance, the guardian should not be prevented from bringing the counteraction.

2. Julianus, Digest, Book XXI.

There is still more reason for granting this action, where suit is brought for the misappropriation of property by the guardian.

3. Ulpianus, On the Edict, Book XXXVI.

But what if the guardian should spend more money upon his ward than the latter's property amounts to? Let us see whether he can recover this. Labeo states that he can. This opinion, however, should only be adopted where it is to the interest of the ward for the guardianship to be administered in this manner. If it is not expedient that this should be done, it must be said that the guardian of the ward must be discharged, for guardianship should not be administered in such a way as to ruin the wards. Therefore, the judge who has cognizance of the counter-action must take into consideration the advantage to the ward, and whether the guardian has incurred the expense in accordance with the duties of his office.

(1) It should be considered whether the counter-action to enable the guardian to obtain a release from the ward will lie. No one has held that a guardian can bring the counter-action to enable him to be released from suit on guardianship; but only with reference to a release from liability for anything which he may have lost on account of the discharge of his trust. He can, however, recover the money, if he has used any of his own for this purpose, together with interest, but only at three per cent, or at the rate which is customary in that part of the country; or such interest as the money was loaned at if it was necessary to lend it in order to relieve the ward for some good reason; or for interest from the payment of which he has liberated the ward; or for such interest as the guardian is entitled to, where it was of great advantage for the ward to be released from his obligations.

(2) It is clear that, if the guardian is obliged to lend at interest certain money belonging to his ward, and has also a sum to pay for him, he cannot himself collect interest from the latter, nor will he be obliged to pay him interest.

(3) Wherefore, if he has appropriated for his own use any money belonging to his ward, and afterwards expends an equal sum upon his ward's property, he ceases to have employed that money for his own benefit, and will not be obliged to pay interest on the same. If he has previously expended money upon property belonging to his ward, and afterwards appropriates to his own use any of the funds of the latter, he will not be held to have used for his ward's benefit the amount equal to that due to himself, and will not be liable for interest for the said sum.

(4) Let us see whether a guardian can recover interest on money advanced during his guardianship, or even after its termination; or whether he can only recover it after default of payment. The better opinion is that he can recover the amount due to him, for his money should not be idle.

(5) It must, however, be held that if the sum to be recovered is to be taken from the estate of the ward, he cannot collect interest from the latter.

(6) But what if the guardian could not reimburse himself out of the property of his ward, because the money was deposited to be used for the purchase of land? If, however, the guardian has not applied to the Praetor for payment of the money, or permission to reserve for himself what was due to him out of the amount to be deposited, and if he has requested this, but did not succeed in obtaining it, it must be held that he will not lose his interest if he brings the counter-action.

(7) It is sufficient for the guardian to have properly and diligently administered the affairs of his trust, even though his transactions may have terminated adversely.

(8) In the counter-action on guardianship is included whatever has been expended for the benefit of the property of the ward, both before and after the guardianship; where it is proved that such expenditures were connected with the affairs of the trust during the continuance of the same, whether the party merely acted as guardian and was afterwards appointed one, or whether he was the curator of an unborn child. If, however, he did not transact the business as acting guardian, he can obtain whatever he has previously expended; for whatever expenses he may have incurred with reference to the property of the ward must be deducted from the amount of the judgment in an action on guardianship; provided, however, that such expenses were incurred in good faith.

(9) It is evident that this action is a perpetual one, and that it is granted both in favor of and against an heir, as well as for and against any other successors who are interested in the matter.

4. Julianus, Digest, Book XXI.

A guardian who has been removed from office should be considered to be in the same position as one whose guardianship is terminated, and hence he is liable to actions in the same manner as if the ward had reached puberty; so in the counter-action, if he has lost anything, he is entitled to bring suit to recover it, for there is nothing to prevent a suspected guardian from recovering what he has advanced, and which he should not lose, even though he may have expended too large a sum for the benefit of his ward.

5. Ulpianus, Opinions, Book I.

I gave it as my opinion that the heir of a guardian, where he has paid a sum for which his wards were liable, is entitled to the counteraction against them.

6. Paulus, On Plautius, Book V.

If a guardian should bind himself for his ward, he is entitled to the counter-action, even before he has paid the debt.
 

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Tit. 5. Concerning one who transacts business as acting guardian or curator.

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1. Ulpianus, On the Edict, Book XXXVI.

The Praetor, through necessity, established an action to take the place of that of guardianship. For very often it is uncertain whether a party has administered the guardianship as an actual guardian, or merely as one occupying his place, and therefore he prescribed an action available in either instance; so that whether the guardian was an actual one who attended to the business, or whether he was not, he would still be liable to the action. For great uncertainty frequently arises, so that it cannot be easily ascertained whether he who administered the trust was really a guardian, or whether he was not, but merely performed the duties of the office in that capacity.

(1) A man transacts business as a guardian who discharges the duties of one with reference to the affairs of minors, either when he thinks himself to be a guardian, or knowing that he is not, nevertheless pretends to be one.

(2) Hence, if a slave acts in the capacity of guardian, the Divine Severus stated in a Rescript that an equitable action should be granted against his master on account of the acts of the slave.

(3) There is no doubt that an action can be brought against a party who transacted the business of a minor in the capacity of guardian, even before the latter arrives at puberty, for the reason that he is not really a guardian.

(4) Wherefore, if anyone acting as a guardian transacts the business of a minor after the termination of his guardianship, he will be liable.

(5) If anyone should administer a guardianship as a pretended guardian before his appointment, and afterwards as a real guardian, he will also be liable for acts performed while he was administering the trust without legal authority, although said acts will be included in an action on guardianship.

(6) Where anyone performs the duties of a guardian with reference to the affairs of a minor who has already reached the age of puberty and who therefore cannot have a guardian, an action of this kind will not lie. The same rule applies to the case of an unborn child, for where anyone acts as a guardian, it is necessary for the individual whom he represents to be of an age to have one, that is to say under the age of puberty. However, an action on the ground of voluntary agency will lie in this instance.

(7) Where a curator appointed for a minor by the Praetor transacts the business, the question arises whether he will be liable as one occupying the place of a guardian. The better opinion is that this action will not lie, because the party performed the duties of a curator. However, where there is no guardian, and someone is compelled, either by the Praetor or the Governor to act as such, and, believing himself to be a guardian, administers the guardianship, it should be ascertained whether he is responsible for his acts in the capacity of guardian. The better opinion is that he should still be liable, even though he acted under compulsion, for the reason that he transacted the business with the intention of a guardian, even though he was not one in reality. The above-mentioned curator, however, did not transact the business as a guardian but as a curator.

(8) In the action against a person who has acted as guardian interest is also included.

(9) Should the party who has acted in the capacity of guardian only be held liable for the business which he transacted, or also for that which he should have attended to? And, indeed, he will not be liable for anything which did not concern the guardianship, nor for any matter which should not have had connection with it, while he acted as guardian. Where he transacted certain business, it should be considered whether he can be held liable for what he did not attend to, and he will be responsible to the extent that another would have been if he had transacted it. But if, knowing that he was not a guardian, he refrained from administering the trust, let us see whether he can be held liable, if he did not notify the near relatives of the ward to have a guardian appointed for the latter. The better opinion is that he will be liable.

2. Celsus, Digest, Book XXV.

Where anyone transacts business as a guardian while he does not occupy the office, and sells property of the ward which is not subsequently acquired by usucaption; the latter can bring suit for said property even though security may have been given to him, for the reason that the administration of the affairs of a ward by a person acting as guardian is not the same as that of a real guardian.

3. Javolenus, Epistles, Book V.

I ask whether he who has been appointed a guardian by will, but is ignorant of the fact, can be held liable for attending to the business of the ward as an actual guardian, or for transacting said business as one acting in the capacity of a guardian. I answered that I do not think that he can be held liable as an actual guardian, because he must know that he is the guardian, in order to discharge the duties of the office with the same spirit with which a guardian should act.

4. Pomponius, On Quintus Mucius, Book XVI.

He who transacts business as an acting guardian should display the same good faith and diligence as a real guardian.

5. Ulpianus, On the Edict, Book XXVIII.

He who has transacted business while acting as guardian is entitled to the counter-action.
 

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Tit. 6. Concerning business transacted under the authority of a false guardian.

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1. Ulpianus, On the Edict, Book XII.

The justice of this Edict is in no respect ambiguous, for it was framed to prevent the contracting parties from being deceived through the intervention of a false guardian.

(1) The following are the terms of the edict: "What is done by the authority (the Praetor says) of one who was not a guardian".

(2) Many things are lacking in the terms of the Edict. For what if the party who was guardian should have no right to exert his authority, for example, if he should be insane, or was appointed for some other province.

(3) However, Pomponius states in the Thirtieth Book that sometimes, although the business has been transacted under the authority of someone who was not a guardian, this part of the Edict will not be applicable. For what if there are two guardians, one of whom is false, and the other genuine, and they should authorize an act, would the transaction be valid?

(4) Pomponius says in the Thirtieth Book that, even though this Edict does not specifically mention more than one false guardian, it, nevertheless, applies to the acts of several.

(5) Pomponius also says that, even though a ward transacts business under the authority of a person acting as guardian, this Edict will still apply, unless the Praetor shall have decreed that he will ratify what has been done under such authority, for then the act will be valid, on account of the support of the Praetor, and not by operation of law.

(6) The Praetor says: "If a ward should be ignorant that his guardian is not genuine, I will grant him complete restitution". He does not grant relief to a ward who was aware of the fact, which is reasonable, because he voluntarily deceives himself.

2. Paulus, On the Edict, Book XII.

"If the ward should be ignorant that his guardian is not genuine", Labeo holds that this applies where the ward has been informed of the fact, and in good faith refused to believe it.

3. Ulpianus, On the Edict, Book XII.

It is evident that such knowledge does not prejudice a party who is not in need of assistance; as, for example, where one ward transacts business with another, for as the act is void, his knowledge does not prejudice him.

4. Paulus, On the Edict, Book XII.

Relief is afforded to a minor under twenty-five years of age who had knowledge.

5. Ulpianus, On the Edict, Book XII.

Sometimes, however, although knowledge may cause prejudice, restitution should be granted where a party was compelled to join issue by order of the Praetor.

6. Paulus, On the Edict, Book XII.

In any transaction, the knowledge of a ward should not be taken into account, but only that of his guardian should be considered. Therefore, even if security has been furnished the ward, it is held to be better for the property of the latter to be restored to him, than for him to depend upon the uncertain result of the security. This Julianus gave as his opinion in any case where a ward has been defrauded.

7. Ulpianus, On the Edict, Book XII.

Finally, the Praetor says: "I will grant an action against a party who, not being a guardian, is said to have fraudulently authorized the act of a ward; and judgment shall be rendered against him for the value of the property in question".

(1) A guardian cannot always be sued, nor is it sufficient for him to have knowingly authorized a transaction, but he also must have acted in bad faith. What would be the result if he were forced to grant his authority, or was induced to do so through fear: ought he not to be excused under such circumstances?

(2) Where the Praetor says: "The value of the property in question". I do not think that the penalty, but merely the true amount lost is referred to.

(3) Pomponius very properly states in the Thirtieth Book that the account of the expenses which the plaintiff has been forced to incur by bringing this action should also be included in the judgment.

(4) Where there are several false guardians, and restitution is made by one of them, the others will be released, but this is not accomplished by the mere selection of one by the plaintiff.

8. Paulus, On the Edict, Book XII.

Hence Sabinus says that where the plaintiff did not recover the entire amount from one of them, he should not be refused recourse against the others for the deficiency.

9. Ulpianus, On the Edict, Book XII.

With reference to this action, Pomponius states in the Thirty-first Book that it can be granted against anyone who acts in bad faith, in order to induce another, who is ignorant of the fact, to authorize a transaction by his ward.

(1) Labeo says that actions of this kind in factum can be brought by heirs and their successors, but that they will not lie against them, nor can they be brought after the expiration of a year, since they punish an act, and are based upon fraud; and that they become noxal actions when instituted against parties who are subjected to the authority of others.

10. Gaius, On the Provincial Edict, Book IV.

Where an action is brought against a ward on account of a false guardian, and, in the meantime, the term prescribed by law has elapsed, or the property has been acquired by usucaption, the guilty party must sustain all the inconvenience which may arise, just as if he were a genuine guardian, and suit had been brought against him within the prescribed time.

11. Ulpianus, On the Edict, Book XXXV.

A false guardian who grants authority to a minor of twelve or fourteen years of age to make a contract shall be liable to an action in factum on the ground of fraud, no matter what his condition may be, whether he is his own master, or under the control of another.

(1) He who fraudulently grants authority to a minor will be liable under this Edict.

(2) Moreover, anyone who authorizes a daughter under paternal control to enter into a contract is liable. The same rule of law applies where anyone acting as guardian authorizes a female slave to borrow money; for in all these instances the contracting party is deceived by the agency of the guardian, for he would not have contracted with the minor without the intervention of the authority of the guardian.

(3) Julianus in the Twenty-first Book of the Digest discusses the point whether this action should be granted against a father who gave his daughter in marriage, while she was under twelve years of age. The weight of authority is that a father is to be excused who desired to introduce his daughter too soon into the family of her husband, for in doing so he is held to have acted rather from an excess of affection, than through malice.

(4) Julianus thinks, however, that if the daughter should die before reaching the age of twelve years, after having received her dowry, and he who was entitled to it had acted in bad faith, the husband can be barred by an exception on the ground of fraud when he sues for the dowry, in cases where he would have been benefited to the extent of all, or a part of it, if the marriage had been valid.

12. The Same, Opinions, Book XII.

Where a party, having been interrogated in court, answers that he is a guardian, he will not be liable to any action for making this statement. Where, however, he was not a guardian, and the minor was in any way defrauded through his answer, an equitable action should be granted against him.
 

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Tit. 7. Concerning the sureties of guardians and curators and those who have offered them, and the heirs of the former.

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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.

(1) The 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 praetorian action to surrender it.

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. 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. 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.

(1) It is evident that an heir will not be responsible for his own negligence.

(2) The 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.

(3) Where 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, 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, 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. 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, 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.

(1) Paulus 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.
 

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Tit. 8. Concerning suits against magistrates.

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1. Ulpianus, On the Edict, Book XXXVI.

Subsidiary actions are not granted against the Order in general, but against the magistrates in particular, and they cannot be brought against the sureties of the latter, for these have bound themselves for the safety of the property of the Government, and not for that of the ward. Hence not those who nominated the magistrates shall be liable for this reason, but the magistrates alone. Where, however, the Order itself assumed the responsibility, it must be held that those are liable who were present; for it makes little difference whether they nominated the guardian, or became sureties for him, or whether they assumed the responsibility themselves. Therefore a praetorian action will lie against them. Where, however, a guardian is appointed by municipal magistrates, he is not held to have been selected by the entire Order.

(1) Neither the Praetor, nor anyone else invested with the right of appointing a guardian, shall be liable under this action.

(2) If the Governor of a province desires that the magistrates shall merely furnish a statement of the means of a guardian, in order that he himself may make the appointment, let us see to what extent they are liable, if at all. A Rescript of the Divine Marcus is extant by which he decides that those who file a report to the Governor with reference to this matter are not liable as if they themselves had made the appointment; but if they have been guilty of deception by making false statements through the inducements of either favor or money, they will be responsible. It is clear that if the Governor of the province orders them to require security, we have no doubt that they will be liable, even though he may have appointed a guardian.

(3) Where the Governor of a province, having received from others the names of parties to be appointed guardians, sends these names to the municipal magistrates, in order that they may obtain information with reference to the same, and he, having received it, appoints the guardians; the question arises whether the magistrates should be held liable in the same manner as those who furnish information to a Praetor. The question is asked, does it make any difference whether the magistrates themselves give the names that are selected to the Governor, or whether he receives them from someone else? I think that in both instances the magistrates will be liable, if they have been guilty of fraud or gross negligence.

(4) Not only wards, but also their legal successors, can avail themselves of subsidiary actions.

(5) Where curators, who are not entirely solvent, have been appointed, it must be said that magistrates are liable if the Governor made the appointment at their suggestion, or from among names approved by them. Where, however, the Governor sends the names to them for appointment, or does so after the appointment to require them to take security, the responsibility attaches to the magistrates.

(6) The magistrates shall also be responsible where no guardian or curator at all is appointed, but they will only be liable where, after having been notified, they do not make the appointment. Therefore, the magistrates will undoubtedly be liable for any wrong which either the minors or youths may suffer in the meantime, where they did not perform their duties after having been directed to do so.

(7) Again, it should be noted that if municipal magistrates purposely defer the appointment of a guardian until their term expires, or if they purposely delay the furnishing of security until their successors enter upon the duties of their office, it will be of no advantage to them.

(8) The Divine Hadrian stated in a Rescript that an action should be granted even against the party who was selected to examine the value of securities offered by a guardian.

(9) Where understanding existed between magistrates that guardians shall be appointed only at the risk of one of them, the Divine Hadrian stated in a Rescript that such a contract should not prejudice the rights of the ward; for the public law cannot be changed by a mere agreement of the Duumvirs; I think, however, that recourse should first be had to the party who assumed the liability, and that, as soon as his means were exhausted, his colleague should be called to account, just as where one alone had made the appointment we would hold that he should first be applied to, and afterwards his associate.

(10) Where persons who appear to be solvent are not to be found in the town where the wards were born, it is the duty of the magistrates to search for some thoroughly honest persons in the neighboring towns, and send the names to the Governor of the province, but they themselves cannot claim the right of appointment.

(11) Where a magistrate appoints a guardian who was solvent at the time, and does not require security from him, this will not be sufficient; but if he requires security, and the party is solvent, even though subsequently the guardian or his sureties become insolvent, no responsibility can attach to him who made the appointment; for magistrates should not be responsible to a ward for future events and accidents.

(12) Where the magistrate did not exact security, and the guardian was solvent at the time when the action on guardianship could be brought, this will be sufficient.

(13) Proof is not required of the ward that the sureties were not solvent when they were accepted; but the magistrates must show that they were solvent at that time.

(14) A ward is not a preferred creditor with reference to the property of a magistrate, but he will be entitled to share with other creditors.

(15) A magistrate shall require security in such a way that the slave of the ward, or the latter himself, if he is entitled to do so and is present, may stipulate with the guardians, as well as with their sureties, that his property will be secure; or if there is no one to enter into such a stipulation, a public slave must stipulate for the safety of the ward's property, or the magistrate himself must do so.

(16) Where a public slave, or the magistrate himself, makes such a stipulation, it is clear that it must be held that an equitable action should be granted to the ward.

(17) The question arises, where the magistrate is a son under paternal control, and does not take measures to provide security for the ward, or when, through his fault, proper security is not furnished; should an action be granted against his father, and if so, for what an amount? Julianus says that the action should be granted against the father to the amount of the peculium, whether the son became a Decurion with his consent, or not; for even though he administered the magistracy with the consent of his father, still, the latter should not be sued for an amount in excess of the peculium, for the reason that a man who gives his consent for his son to become a Decurion, only thereby binds himself that the property of the Government will remain secure.

2. The Same, Disputations, Book III.

A case has been proposed where two guardians, having been appointed by municipal magistrates without security being required, one of them died in poverty, and the other, after being sued by the ward, paid the entire amount. The question arose, whether this guardian would be entitled to an action against the municipal magistrates when he was aware that security was not required from his fellow-guardian. I stated it as my opinion that, since the claim of the ward against the guardian had been satisfied by the latter, neither the ward nor the guardian had any further recourse against the magistrates, for a guardian never has any right of action against a magistrate, as a Decree of the Senate gives relief to the ward; and especially is this the case when the guardian is to blame for not requiring security from his colleague, or for not denouncing him as suspicious, if, in accordance with the facts stated, he knew that he had not given security by order of the magistrates.

3. Julianus, Digest, Book XXI.

If no blame attaches to a guardian on this account it will not be unjust for him to be granted an action against the magistrates.

4. Ulpianus, Disputations, Book III.

The heirs of magistrates are not responsible in the same way as the latter, for the heir of a guardian is not liable upon the ground of the negligence of the deceased; as the magistrate indeed assumes all the responsibility, and his heir is only liable in case of fraud, or of negligence resembling fraud.

5. Julianus, Digest, Book XXI.

Two guardians divided the administration of the guardianship between them, and one died without leaving an heir. The question arose whether an action should be granted to the ward against the magistrate who did not see that security was given, or against the other guardian. I answered that it was more equitable for an action to be granted against the other guardian than against the magistrate; for the former, when he was aware that security had not been furnished to the ward, should have taken charge of the entire administration; and with respect to that portion which he had committed to the care of the other guardian, he resembled one who did not attend to the transaction of certain business of his ward. For although he may have transacted a certain portion of the business of his ward, he will still be liable for neglecting to attend to what he should have done.

6. Ulpianus, On the Edict, Book I.

A Rescript of the Divine Pius is extant which refers to the heir of a magistrate, and states that, after proper cause is shown, an action should be granted against him; for if the negligence of a magistrate should be so great as to cause him to fail to take any security, it is but just that he should be held to occupy the position of a surety, so that his heir may also be liable. Where, however, he took security, and the sureties at the time were solvent, but afterwards ceased to be; just as the magistrate himself can very properly refuse to answer in such an action, so his heir can refuse with even more justice. Finally, an action should not be granted against the heir of a magistrate, unless it is evident that the latter accepted sureties which were not perfectly solvent.

7. Celsus, Digest, Book XI.

I ask you to carefully note in the case of magistrates who have appointed a guardian whether an action should be granted against them for equal amounts, or whether it shall be optional with the ward to sue any of them that he pleases. The answer was that if the magistrates have acted fraudulently, so that sufficient security was not given to the ward, an action for the entire amount should be granted the latter against whomever he may select; but if this occurred merely through their negligence, and did not result from bad faith, I think that it would be more equitable for each one of them to be sued for his own share, provided that, in this way the property of the ward will be preserved.

8. Modestinus, Opinions, Book VI.

Magistrates exacted security from the curators of a minor for the preservation of his property, and one of them died without leaving an heir. I ask whether his colleague will be liable to indemnify the ward from the entire amount. Modestinus answered that there is no reason why he should not be required to do so.

9. The Same, Pandects, Book IV.

The question arose, where an action is granted against magistrates, should the principal be collected together with the interest, or can interest not be claimed, since it has been decided that interest on penalties cannot be recovered. It was stated in a Rescript by the Divine Severus and Antoninus, that interest can be collected, since the same action is granted against magistrates that lies against guardians.
 

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Tit. 9. Concerning the property of those who are under guardianship or curatorship, and with reference to the alienation or encumbrance of their property without a decree.

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1. Ulpianus, On the Edict, Book XXXV.

Guardians and curators are prohibited by a decree of the Emperor Severus from disposing of the lands of wards and others under their care, whether they are situated in the country, or in a city.

(1) This decree was published in the Senate during the consulship of Tertyllus and Clement.

(2) Its provisions are as follows: "Moreover, Conscript Fathers, I forbid guardians and curators to sell either rustic or urban estates, unless parents have provided by will or by codicil that this may be done. If, however, debts exist to such an amount that they cannot be paid out of the proceeds of other property, then application can be made to the illustrious Urban Praetor, who in his discretion shall determine what lands may be alienated or encumbered, and a right of action will be reserved for the ward, if it should subsequently be established that the Praetor was imposed upon. Where the property is held in common with another, and the joint-owner applies for partition, or if a creditor who has received land by way of pledge from the father of the ward demands his rights, I hold that no new decree should be issued."

(3) When the deceased had property which could have been sold during his lifetime, but did not provide by his will that this should be done, the sale of the same ought not to be made; for even if the testator desired to sell the property, he may not have thought that it should be disposed of after his death.

(4) Where a minor under twenty-five years of age purchases land under the condition that it shall be pledged to the vendor, until the price of the same is paid, I do not think that the pledge is valid, for whenever the ownership of property is acquired by a minor he ceases to be liable.

2. Paulus, On the Decree of the Divine Severus.

But here a difficulty arises, for the reason that a pledge becomes operative at the same time with the acquisition of ownership, and the obligation becomes a part of the transaction from the very beginning. But what if the minor made the purchase from the Treasury? There is no doubt in this instance that the right to the pledge would remain unimpaired. Therefore, where an instance of this kind arises in a sale to a private vendor, application must be made to the Emperor in order that the pledge may be confirmed by a Rescript.

3. Ulpianus, On the Edict, Book XXXV.

But if one ward should purchase land with the money of another, and it was delivered to the ward or the minor, is he with whose money the said land was purchased entitled to the obligation or pledge? The better opinion is, that the right of pledge remains unimpaired, in accordance with the Constitution of our Emperor and his Divine Father, in favor of the ward with whose money the land was purchased.

(1) Land belonging to a ward can, nevertheless, be seized and sold by order of a magistrate, a Governor, or any other official having jurisdiction. Again, anyone can be placed in possession of the property of a ward by the Praetor; and the right of pledge may be contracted either for the purpose of preserving a legacy, or to provide against threatened injury, and the Praetor can order the property to be taken possession of as he shall direct. These obligations or alienations are effected through the authority of magistrates, and not with the consent of a guardian or a curator.

(2) The question may also be asked, where restitution of a tract of land belonging to a ward is demanded by a guardian, whether the tender of its value in court operates as an alienation. The better opinion is that it does so operate, for such an alienation does not depend upon the will of the guardian.

(3) The same thing must be said where land which belonged to the ward is demanded, and the guardians return it in opposition to the ward; for, in this instance, the alienation will be valid on account of the authority of the decision rendered.

(4) Where the ward enjoys the right of perpetual lease or of possession, let us see whether it can be disposed of by his guardians. The better opinion is that it cannot be, even though the title of the other party to the land may be better.

(5) Nor can an usufruct be alienated, even though the usufruct alone belongs to the ward. Hence, must it be assumed that the right is lost by non-user, if the guardian gave occasion for it? It is clear that it should be restored. Where, however, the ward owns the property, he cannot alienate either the usufruct or the use of the same, although the decree states nothing with reference to the usufruct. In like manner, it may be said that a servitude cannot be imposed on the land of a ward, or a minor, nor can one be extinguished. This rule is also established with reference to dotal lands.

(6) Where a ward has mines of alum, or metal, or any other substance, or chalk-pits, or silver mines, or anything else of this kind,

4. Paulus, On the Decree of the Divine Severus.

Which private individuals have a right to possess:

5. Ulpianus, On the Edict, Book XXXV.

I think that the better opinion is, that the alienation cannot be made in accordance with the spirit of the decree.

(1) It must be held that the same rule will apply where the ward owns salt-pits.

(2) Where the ward possesses, in good faith, land which belongs to another, I think it should be held that his guardians cannot alienate it; for where anything is sold which appears to belong to a ward the sale will not be valid.

(3) Where a tract of land has been pledged to a ward, can his guardians sell it? I think that they can, for this is, as it were, the property of the debtor, that is to say, they sell what belongs to another. Where, however, the ward or his father acquires the right to possess the property on the ground of ownership, it must be said in consequence that it cannot be disposed of, because it is considered as land belonging to the ward. The same rule applies where the ward has been directed to take possession of property for the prevention of threatened injury.

(4) Where land has been devised, or left by way of trust to a ward who was appointed heir, to be transferred to Seius, can his guardians deliver the "said land without the authority of the Praetor? I think that if the testator devised his own property, the decree will not apply; but if the bequest has reference to the property of the ward, it should be held to come within the terms of the decree, and that it cannot be alienated without the consent of the Praetor.

(5) If a ward should enter into a stipulation, can he pay the money borrowed without the authority of the Praetor. The better opinion is that he cannot do so; otherwise a pretext for alienating the property of the ward would be obtained.

(6) But if a father should promise land by a stipulation, and the ward should succeed to him in the assumption of his obligation, it may be said more positively that he can give up the land without the authority of the Praetor. The same rule also applies where the ward, by hereditary right, succeeds another who obligated himself.

(7) On the same principle, if a father, or anyone else whom the ward succeeded, should have agreed to sell a tract of land, it may be said that the ward can conclude all the other terms of the sale without applying to the Praetor.

(8) A ward cannot reject the devise of a tract of land without the authority of the Praetor; for no one doubts that this is a case of alienation, as the property belongs to the ward.

(9) Guardians should not be granted the right to sell property of the ward indiscriminately, under the pretext of the payment of debts; for this method of disposing of such property ought not to be allowed. Hence the Senate left the determination of this matter to the Praetor, whose duty, in the first place, was to examine it and ascertain whether money for the purpose of discharging the debt could not be obtained elsewhere. Therefore, he should inquire whether the ward has any resources, either in cash, or in notes, upon which suit may be brought, or an interest in crops which have been stored, or has the expectation of receiving any income or other property. He must also ascertain whether there is anything else except the land that can be sold, and from the proceeds of which the claim may be satisfied. Then, if he should find that the debt cannot be discharged except by the sale of the land, he must permit this to be done; provided the creditor insists upon payment, or the rate of interest under which the debt was contracted offers an inducement for its settlement.

(10) The Praetor should also decide whether it will be more advantageous for him to allow the land to be sold, or to be encumbered. He must likewise exercise great care to prevent a larger sum from being borrowed by the encumbrance of the land than he may think necessary for the payment of the debt; or if the land is sold, that a considerable portion of it is not disposed of in order to discharge a moderate obligation. Where, however, the ward is the owner of a tract of less value, or one which is less useful to him, it is preferable for the Praetor to order this one to be sold, rather than the larger and more useful one.

(11) In the first place, then, whenever the Praetor is applied to by a party for permission to dispose of land, he should be required to inform himself concerning the estate of the ward, and not trust too much to the statements of guardians or curators, who, sometimes, for the sake of their own advantage, are accustomed to assure the Praetor that it is necessary to sell or encumber the land of a ward. He must, therefore, make inquiry of the near relatives of the ward or his parents, or of any of his faithful freedmen, or of anyone else who is familiar with the property of the ward, and where no one of this kind can be found, or where those who have been found are liable to suspicion, he must order accounts to be rendered, and also a memorandum of the property of the ward to be filed, and appoint an advocate for the latter who can advise the Praetor as to whether he should consent to the sale or encumbrance of the property.

(12) It may be asked, where the Praetor, having been applied to, permits property situated in the province to be sold, whether this act is valid. I think that it is valid, provided the guardianship is administered at Rome, and the guardians have charge of the administration of the property.

(13) However, to prevent the improper use of money which guardians have borrowed on account of an alleged debt of the ward, it is necessary for the Praetor to see that the borrowed money is paid to the creditors, and with reference to this to render a decree, and appoint a court officer, who shall report to him that the money has been employed for the purpose for which the alienation or encumbrance was asked.

(14) Where there is no debt to be paid, but the guardians allege that it is expedient for certain lands to be sold, or others to be purchased, or for others to be got rid of, it should be considered whether the Praetor ought to allow this to be done. The better opinion is, that he cannot do this, for full authority is not granted to a Praetor to dispose of property belonging to a ward, but only in case where a debt must be paid. Hence, where no debt is involved, if he should permit the land to be sold, we consequently hold that there is no sale, and that the decree is void, for permission is not granted to the Praetor to dispose of the property of a ward indiscriminately, but only where the demand for payment of debts is urgent.

(15) A ward retains his right of action if he can afterwards prove that the Praetor has been deceived. It should, however, be considered whether we should grant him a real or a personal action. The better opinion is that a real action should be granted, as well as a personal one against his guardians or curators.

(16) By lands held in common, we should understand such as are jointly held and undivided. Where, however, they are held in common, but the shares are separated, there is ground for a judicial decision, as the decree does not apply.

6. The Same, Concerning All Tribunals, Book II.

Where one person enjoys the ownership of land, and another the usufruct of the same, the better opinion is that that portion of the decree which relates to the division of property does not apply, for there is no real community of interest.

7. The Same, On the Edict, Book XXXV.

Where lands are owned in common by wards who have different guardians, let us see whether the right of alienation belongs to each. And, as an application for permission to do this is necessary, I think that alienation will be prevented, as neither of the parties can ask for it, and each must wait for the application of the other. Again, if they have the same guardians, there is still greater reason for asserting that the alienation cannot take place.

(1) Where a ward gives land by way of pledge with the permission of the Praetor, there is no doubt that the alienation of said land can be prevented. It must be said, however, that the creditor can exercise his right, but he will be safer if he first makes application to the Praetor.

(2) Where a father or a relative is the guardian of a child, must the Praetor be applied to, if he or she wishes to encumber the property? The better opinion is that this ought to be done; however, the Praetor should be more inclined to consent to the demands of the father than to those of anyone else.

(3) Where the Praetor permits guardians to sell land, and they encumber it, or vice versa, will such an action be valid? My opinion is that where a party does something different from what has been authorized by the Praetor, the act is void.

(4) But what if the Praetor should decree as follows: "I permit the property to be sold or encumbered"? Will the guardian have a right to do what he pleases? The better opinion is that he will, provided we bear in mind that the Praetor has not properly performed his duty, for he should determine and select whether it is better for him to allow his property to be encumbered, or sold.

(5) Where a guardian encumbers property without a decree, although the obligation is not valid, there will, nevertheless, be ground for an exception based on fraud, if the guardian should pay the money loaned to him to a creditor who holds the land in pledge.

(6) It should also be considered whether the guardian can encumber the property to him. It must be said that if he receives the same principal, and the rate of interest is not higher, the obligation will be valid, and the rights of the first creditor pass to the second one.

8. The Same, On All Tribunals, Book II.

There is no doubt that persons who are not legal guardians or curators, but transact business while acting as such, cannot in this capacity dispose of the property of wards or minors.

(1) It should be considered whether a sale will be valid by the ancient law under these circumstances, or whether this decree is applicable to the case of a curator of an insane person, or of anyone else who is not a minor. Because the Emperor refers to wards, and the duties of curators are understood to be connected with those of guardians, I think that the same rule must be held to apply to all of them, in accordance with the intent of the decree.

(2) The question arises whether common property, in which the ward has an interest, can be encumbered. And I do not think that this can be done without a judicial decision; for what is excepted in the decree merely has reference to the extinguishment of the common ownership, and not to the increase of its difficulties.

9. The Same, Opinions, Book V.

Although a former Governor may have authorized the sale of land belonging to a ward, and his guardian should then purchase it for himself, through the agency of another buyer; still, if the successor of the said Governor should ascertain that fraud and bad faith had been committed by the guardian in violation of the Decree of the Senate, he must determine as to what extent he shall punish such a fraudulent act, by way of example.

10. The Same, Opinions, Book VI.

Where the land of a ward or a minor has been sold illegally and in violation of the Decree of the Senate, and on this account an assessment of damages is made in an action on guardianship, or in an equitable action, and the amount assessed has been paid, the recovery of the land is forbidden by the principles of equity.

11. The Same, On the Duties of Proconsul, Book III.

If an application should be made for the sale of land belonging to a minor of twenty-five years of age, after proper investigation, the Governor of the province should permit this to be done. The same rule should be observed with reference to the property of an insane person, or a spendthrift, or of anyone else whose land his curators desire to alienate.

12. Marcianus, On the Hypothecary Formula.

The Decree of the Senate is not violated where the guardian of a ward pays the creditor of the father of the latter, in order that he may be subrogated to him.

13. Paulus, On the Decree of the Divine Severus.

Where a tract of land belonging to a ward is either sterile, stony, or pestilential, it should be considered whether or not the guardian can alienate it. The Emperor Antoninus and his Divine Father stated the following in a Rescript with reference to this subject: "The fact that you allege that the land which you desire to sell is unfruitful has no weight with us, since a price can only be obtained for the same in proportion to the crops which it will yield."

(1) Although a guardian can neither sell nor encumber land belonging to his ward, still Papinianus states in the Fifth Book of Opinions that a guardian cannot legally dispose of the land of the ward without a decree of the Praetor. He says, however, that where the guardian, through ignorance, sells the property, and pays the price received for the same to the creditors of the father of the minor, and the latter subsequently brings suit for recovery of the land, with the profits, from the owner; an exception on the ground of fraud can properly be pleaded, if the minor does not tender the price, and the interest for the intermediate time, which was due to the creditor, if the debt could not have been paid out of the property belonging to the ward. On this point I stated that even if the ward could have paid the debt out of other property, and the latter has been saved, it must be said that an exception on the ground of fraud can be interposed, if the ward was attempting to profit by the loss of another.

14. The Same, Opinions, Book IX.

Paulus gave it as his opinion that even though the will of a father should subsequently be held to be void, still, the guardians or curators of his son were considered to have committed no act against the Decree of the Divine Emperors, where in accordance with the desire of the deceased expressed in his will, land belonging to the ward which was situated in the country.
 

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Tit. 10. Concerning the appointment of curators for insane persons and others who are not minors.

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1. Ulpianus, On Sabinus, Book I.

By the Law of the Twelve Tables, the administration of his own property is forbidden to a spendthrift. This provision had previously been introduced by custom. In our day, however, where Praetors or Governors encounter a man of this kind, who regards neither time nor limit, so far as expenditures are concerned, but wastes his property by dissipating and squandering it, they appoint a curator for him just as they do for an insane person, and both continue under curatorship, until the insane person recovers his senses, or the spendthrift conducts himself properly. Whenever this takes place, the parties, by operation of law, cease to be under the supervision of their curators.

(1) The curatorship of one who was forbidden to dispose of his property was formerly refused to his son. However, a Rescript of the Divine Pius is extant in which he declares that curatorship should be granted by preference to a son, where his father is insane, provided the former is a man of integrity.

2. Paulus, On the Duties of Proconsul, Book I.

The Proconsul must appoint, or order to be appointed, curators for other persons who cannot attend to their own affairs; and he will not hesitate to appoint a son the curator of his father.

3. Ulpianus, On Sabinus, Book XXXI.

The Praetor appoints a curator for an estate while the appointed heirs are deliberating whether they will accept it.

4. The Same, On Sabinus, Book XXXVIII.

The curatorship of an insane mother belongs to her son, for equal filial affection is due to both parents although their authority is not the same.

5. Gaius, On the Provincial Edict, Book IX.

A curator is appointed under the Decree of the Senate where the person is illustrious, as in the case of a Senator or his wife; and there is reason for their property to be sold in order that their creditors may be paid honestly out of it, as far as possible; and a curator is appointed either by the Praetor or by the Governor of the province for the purpose of disposing of the property.

6. Ulpianus, On All Tribunals, Book I.

The Praetor must be careful not to appoint a curator rashly and without the most thorough investigation of the case, since many persons feign madness or insanity in order that, by the appointment of a curator, they may the more readily evade their civil obligations.

7. Julianus, Digest, Book XXI.

Not only the estate, but also the person and the safety of one who is insane, must be protected by the advice and exertions of his curator.

(1) A curator was appointed for an insane person, and a decree issued requiring him to give security which he did not do, and, nevertheless, he alienated certain property of the insane person in accordance with the legal formalities. The heirs of said insane person brought an action to recover the property which the curator had alienated, and an exception on the ground that the curator had not sold the property was interposed. In this case, a replication should be granted that he had sold the property without furnishing security in accordance with the decree. If, however, the curator had paid the creditors of the insane person the price received for the property, a triplication on the ground of bad faith will render the possessors secure.

(2) Where the Proconsul removed the curator of an insane person from the administration of the property of the latter for the reason that he had not furnished security, and had transacted the business of the trust improperly, and substituted another curator in his stead, the latter, who himself did not furnish security, brought an action based on voluntary agency against the curator who had been removed, and afterwards when the heirs of the said insane person brought suit on the ground of voluntary agency against the second curator, the latter pleaded an exception based upon the settlement of the case between them and his predecessor, the heirs should be granted the right to reply that he himself had not given security when he brought the action. The judge, however, must determine whether such a reply would be of any benefit to the curator, for if the second curator had employed the money which he had recovered by a judgment against the first, for the benefit of the property of the insane person, a triplication on the ground of fraud can be interposed.

(3) The question arose whether payment can legally be made to one of the curators of an insane person, and whether one of them can alienate his property. I answered that such payment would be legal, and that the party who purchased, with the proper formalities, any land belonging to an insane person from one of several curators, could obtain the right to the same by prescription; because payment, sale, and delivery are rather matters of fact than of law, and therefore the act of one of the curators is sufficient, for the reason that the other is understood to consent. Hence, if the other curator is present and opposes the payment, or delivery, the debtor is not released from liability, nor can the purchaser obtain the property by prescription.

8. Ulpianus, On the Duties of Proconsul, Book VI.

A curator must be appointed for the property of an unborn child, and the Proconsul, in order that it may be safe, requires him to give security such as would be accepted by a reliable man. This is the case where the appointment is not made after investigation, for if an investigation takes place security will not be necessary.

9. Neratius, Parchments, Book I.

When the Senate permits the appointment of curators for the sale of property, it does not authorize the creditors to dispose of the same, even though they prefer to sell it after this privilege has been granted; as, while the latter have the right to choose whichever one they may desire, still, after they have selected one curator, they must not apply to another. It is much more just for this rule to be observed where the curator, after having been appointed for the sale of property, dies before the transaction has been concluded; for, in this instance, another curator must be appointed for the settlement of the entire matter, and the heir of the first curator cannot be entrusted with it, since it may happen that the heir may not be fitted for the business, either on account of sex, or the infirmity of age, or the higher or lower rank, of the former curator; and, moreover, there may be several heirs to the first curator, and it may not be expedient for all of them to transact the business, or some reason may be alleged why one of them should be charged with this duty rather than the others.

10. Ulpianus, On the Edict, Book XVI.

Julianus says that those to whom the administration of their property has been forbidden by the Praetor can transfer nothing to anyone, because they have no control over the property, as they are excluded from the exercise of their civil rights.

(1) The curator of an insane person can legally deliver his own property as belonging to the said insane person, and transfer the ownership of the same; but if he should deliver the property of the insane person as belonging to himself, it must be said that he does not transfer the ownership, because he did not do so while transacting the affairs of the insane person.

11. Paulus, On Plautius, Book VII.

A pledge given by the curator of an insane person is valid, if this was done because the benefit of the latter required it.

12. Marcellus, Digest, Book I.

It is established that the property of an insane person cannot be dedicated to religious purposes by an agnate, or any other curator of the former; for the agnate of an insane person has not an absolute right to alienate his property, but can only do so where the administration of his affairs demands it.

13. Gaius, On the Provincial Edict, Book III.

The curatorship of a madman or a spendthrift is, by a law of the Twelve Tables, often granted to another person than a relative, and the Praetor may confer the administration of his estate upon another; namely, where the party specified by the law appears to be unsuited for the management of the trust.

14. Papinianus, Opinions, Book V.

A husband must not be appointed the curator of his wife when she is of unsound mind.

15. Paulus, Sentences, Book III.

The management of her own property can be forbidden to a woman who lives extravagantly.

(1) A privilege over the property of the curator is reserved for the benefit of an insane person of either sex. Spendthrifts, and all other persons, even though no mention is made of them in the Edict, are, by a decree, entitled to a similar privilege with reference to the property of a curator.

16. 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 Praetor 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 Praetor, as is stated in a Rescript of the Divine Marcus.

(1) The result of this is that where a father designates a curator for his son, who is a spendthrift, the Praetor 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 Praetor forbid the said son to manage his property, especially where this spendthrift himself has children?

(2) The 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.

(3) But 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.

17. Gaius, On Manumissions, Book I.

The curator of an insane person can under no circumstances grant freedom to his slave, because this is a matter not included in his administration; for, in disposing of the property of the insane person, he only alienates it where it relates to the management of the affairs of his trust, and therefore, if he alienates any property by way of a donation, the transfer will be of no effect, unless he does this on account of some great advantage it affords the insane person, after an investigation has been made by the court.