The Institutes of Justinian Part 4

5 Testamentary guardians appointed to serve until a certain time lay down their office when that time arrives.

6 Finally, persons cease to be guardians who are removed from their office on suspicion, or who are enabled to lay down the burden of the tutelage by a reasonable ground of excuse, according to the rules presently stated.

t.i.tLE XXIII. OF CURATORS

Males, even after p.u.b.erty, and females after reaching marriageable years, receive curators until completing their twenty-fifth year, because, though past the age fixed by law as the time of p.u.b.erty, they are not yet old enough to administer their own affairs.

1 Curators are appointed by the same magistrates who appoint guardians.

They cannot legally be appointed by will, though such appointment, if made, is usually confirmed by an order of the praetor or governor of the province.

2 A person who has reached the age of p.u.b.erty cannot be compelled to have a curator, except for the purpose of conducting a suit: for curators, unlike guardians, can be appointed for a particular matter.

3 Lunatics and prodigals, even though more than twentyfive years of age, are by the statute of the Twelve Tables placed under their agnates as curators; but now, as a rule, curators are appointed for them at Rome by the prefect of the city or praetor, and in the provinces by the governor, after inquiry into the case.

4 Curators should also be given to persons of weak mind, to the deaf, the dumb, and those suffering from chronic disease, because they are not competent to manage their own affairs.

5 Sometimes even pupils have curators, as, for instance, when a statutory guardian is unfit for his office: for if a pupil already has one guardian, he cannot have another given him. Again, if a testamentary guardian, or one appointed by the praetor or governor, is not a good man of business, though perfectly honest in his management of the pupil's affairs, it is usual for a curator to be appointed to act with him. Again, curators are usually appointed in the room of guardians temporarily excused from the duties of their office.

6 If a guardian is prevented from managing his pupil's affairs by illhealth or other unavoidable cause, and the pupil is absent or an infant, the praetor or governor of the province will, at the guardian's risk, appoint by decree a person selected by the latter to act as agent of the pupil.

t.i.tLE XXIV. OF THE SECURITY TO BE GIVEN BY GUARDIANS AND CURATORS

To prevent the property of pupils and of persons under curators from being wasted or diminished by their curators or guardians the praetor provides for security being given by the latter against maladministration. This rule, however, is not without exceptions, for testamentary guardians are not obliged to give security, the testator having had full opportunities of personally testing their fidelity and carefulness, and guardians and curators appointed upon inquiry are similarly exempted, because they have been expressly chosen as the best men for the place.

1 If two or more are appointed by testament, or by a magistrate upon inquiry, any one of them may offer security for indemnifying the pupil or person to whom he is curator against loss, and be preferred to his colleague, in order that he may either obtain the sole administration, or else induce his colleague to offer larger security than himself, and so become sole administrator by preference. Thus he cannot directly call upon his colleague to give security; he ought to offer it himself, and so give his colleague the option of receiving security on the one hand, or of giving it on the other. If none of them offer security, and the testator left directions as to which was to administer the property, this person must undertake it: in default of this, the office is cast by the praetor's edict on the person whom the majority of guardians or curators shall choose. If they cannot agree, the praetor must interpose.

The same rule, authorizing a majority to elect one to administer the property, is to be applied where several are appointed after inquiry by a magistrate.

2 It is to be noted that, besides the liability of guardians and curators to their pupils, or the persons for whom they act, for the management of their property, there is a subsidiary action against the magistrate accepting the security, which may be resorted to where all other remedies prove inadequate, and which lies against those magistrates who have either altogether omitted to take security from guardians or curators, or taken it to an insufficient amount. According to the doctrines stated by the jurists, as well as by imperial const.i.tutions, this action may be brought against the magistrate's heirs as well as against him personally;

3 and these same const.i.tutions ordain that guardians or curators who make default in giving security may be compelled to do so by legal distraint of their goods.

4 This action, however, will not lie against the prefect of the city, the praetor, or the governor of a province, or any other magistrate authorized to appoint guardians, but only against those to whose usual duties the taking of security belongs.

t.i.tLE XXV. OF GUARDIANS' AND CURATORS' GROUNDS OF EXEMPTION

There are various grounds on which persons are exempted from serving the office of guardian or curator, of which the most common is their having a certain number of children, whether in power or emanc.i.p.ated. If, that is to say, a man has, in Rome, three children living, in Italy four, or in the provinces five, he may claim exemption from these, as from other public offices; for it is settled that the office of a guardian or curator is a public one. Adopted children cannot be reckoned for this purpose, though natural children given in adoption to others may: similarly grandchildren by a son may be reckoned, so as to represent their father, while those by a daughter may not. It is, however, only living children who avail to excuse their fathers from serving as guardian or curator; such as have died are of no account, though the question has arisen whether this rule does not admit of an exception where they have died in war; and it is agreed that this is so, but only where they have fallen on the field of battle: for these, because they have died for their country, are deemed to live eternally in fame.

1 The Emperor Marcus, too, replied by rescript, as is recorded in his Semestria, that employment in the service of the Treasury is a valid excuse from serving as guardian or curator so long as that employment lasts.

2 Again, those are excused from these offices who are absent in the service of the state; and a person already guardian or curator who has to absent himself on public business is excused from acting in either of these capacities during such absence, a curator being appointed to act temporarily in his stead. On his return, he has to resume the burden of tutelage, without being ent.i.tled to claim a year's exemption, as has been settled since the opinion of Papinian was delivered in the fifth book of his replies; for the year's exemption or vacation belongs only to such as are called to a new tutelage.

3 By a rescript of the Emperor Marcus persons holding any magistracy may plead this as a ground of exemption, though it will not enable them to resign an office of this kind already entered upon.

4 No guardian or curator can excuse himself on the ground of an action pending between himself and his ward, unless it relates to the latter's whole estate or to an inheritance.

5 Again, a man who is already guardian or curator to three persons without having sought after the office is ent.i.tled to exemption from further burdens of the kind so long as he is actually engaged with these, provided that the joint guardians.h.i.+p of several pupils, or administration of an undivided estate, as where the wards are brothers, is reckoned as one only.

6 If a man can prove that through poverty he is unequal to the burden of the office, this, according to rescripts of the imperial brothers and of the Emperor Marcus, is a valid ground of excuse.

7 Illhealth again is a sufficient excuse if it be such as to prevent a man from attending to even his own affairs:

8 and the Emperor Pius decided by a rescript that persons unable to read ought to be excused, though even these are not incapable of transacting business.

9 A man too is at once excused if he can show that a father has appointed him testamentary guardian out of enmity, while conversely no one can in any case claim exemption who promised the ward's father that he would act as guardian to them:

10 and it was settled by a rescript of M. Aurelius and L. Verus that the allegation that one was unacquainted with the pupil's father cannot be admitted as a ground of excuse.

11 Enmity against the ward's father, if extremely bitter, and if there was no reconciliation, is usually accepted as a reason for exemption from the office of guardian;

12 and similarly a person can claim to be excused whose status or civil rights have been disputed by the father of the ward in an action.

13 Again, a person over seventy years of age can claim to be excused from acting as guardian or curator, and by the older law persons less than twentyfive were similarly exempted. But our const.i.tution, having forbidden the latter to aspire to these functions, has made excuses unnecessary. The effect of this enactment is that no pupil or person under twentyfive years of age is to be called to a statutory guardians.h.i.+p; for it was most incongruous to place persons under the guardians.h.i.+p or administration of those who are known themselves to need a.s.sistance in the management of their own affairs, and are themselves governed by others.

14 The same rule is to be observed with soldiers, who, even though they desire it, may not be admitted to the office of guardian:

15 and finally grammarians, rhetoricians, and physicians at Rome, and those who follow these callings in their own country and are within the number fixed by law, are exempted from being guardians or curators.

16 If a person who has several grounds of excuse wishes to obtain exemption, and some of them are not allowed, he is not prohibited from alleging others, provided he does this within the time prescribed. Those desirous of excusing themselves do not appeal, but ought to allege their grounds of excuse within fifty days next after they hear of their appointment, whatever the form of the latter, and whatever kind of guardians they may be, if they are within a hundred miles of the place where they were appointed: if they live at a distance of more than a hundred miles, they are allowed a day for every twenty miles, and thirty days in addition, but this time, as Scaevola has said, must never be so reckoned as to amount to less than fifty days.

17 A person appointed guardian is deemed to be appointed to the whole patrimony;

18 and after he has once acted as guardian he cannot be compelled against his will to become the same person's curator--not even if the father who appointed him testamentary guardian added in the will that he made him curator, too, as soon as the ward reached fourteen years of age--this having been decided by a rescript of the Emperors Severus and Antoninus.

19 Another rescript of the same emperors settled that a man is ent.i.tled to be excused from becoming his own wife's curator, even after intermeddling with her affairs.

20 No man is discharged from the burden of guardians.h.i.+p who has procured exemption by false allegations.

t.i.tLE XXVI. OF GUARDIANS OR CURATORS WHO ARE SUSPECTED

The accusation of guardians or curators on suspicion originated in the statute of the Twelve Tables;

1 the removal of those who are accused on suspicion is part of the jurisdiction, at Rome, of the praetor, and in the provinces of their governors and of the proconsul's legate.

2 Having shown what magistrates can take cognizance of this subject, let us see what persons are liable to be accused on suspicion. All guardians are liable, whether appointed by testament or otherwise; consequently even a statutory guardian may be made the object of such an accusation.

But what is to be said of a patron guardian? Even here we must reply that he too is liable; though we must remember that his reputation must be spared in the event of his removal on suspicion.