Justinian•DIGESTA
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Dig. 26.3.0. De confirmando tutore vel curatore.
26.2.0. On testamentary tutorship.
Dig. 26.3.0. On confirming a tutor or curator.
Dig. 26.6.0. Qui petant tutores vel curatores et ubi petantur.
26.5.0. On guardians and curators appointed by those who have the right to appoint, and who, and in what cases, they can be specially appointed.
Dig. 26.6.0. Who may petition for guardians or curators and where they are to be petitioned for.
Dig. 26.9.0. Quando ex facto tutoris vel curatoris minores agere vel conveniri possunt.
26.8.0. On the authority and consent of tutors and curators.
Dig. 26.9.0. When, by reason of the act of a tutor or curator, minors can bring suit or be convened in court.
Qui habet tutorem pupillus vel pupilla si furere coeperint, in ea causa sunt, ut in tutela nihilo minus durent: quae sententia quinti quoque mucii fuit et a iuliano probatur eoque iure utimur, ut cesset cura, si tutelae aetas indigeat. quare si tutores habent, per furorem in curam non rediguntur, sive non habent et furor eis accesserit, nihilo minus tutores accipere poterunt: quia lex duodecim tabularum ita accepta est, ut ad pupillos vel pupillas non pertineat.
If a male or female pupil who has a tutor begins to be insane, they are in such a case that nevertheless they remain under tutela: which was also the opinion of Quintus Mucius and is approved by Julian; and we use that law, that the cura ceases, if the age requires tutela. Wherefore, if they have tutors, they are not brought under cura by reason of madness; or if they do not have them and madness has come upon them, nonetheless they will be able to receive tutors: because the Law of the Twelve Tables is so understood that it does not pertain to male or female pupils.
Quia autem in pupillorum persona adgnatos curatores non admittimus, idcirco putavi et si minor viginti quinque annis furiosus sit, curatorem ei non ut furioso, sed ut adulescenti dari, quasi aetatis esset impedimentum. et ita definiemus ei, quem aetas curae vel tutelae subicit, non esse necesse quasi dementi quaeri curatorem, et ita imperator antoninus augustus rescripsit, cum magis aetati quam dementiae tantisper sit consulendum.
Since moreover in the case of wards we do not admit agnates as curators, therefore I have thought that even if someone under twenty-five years is insane, a curator should be given to him not as to a madman, but as to an adolescent, as though the impediment were one of age. And thus we shall define that for him whom age subjects to cura or tutela, it is not necessary to seek a curator as if for a demented person; and so the Emperor Antoninus Augustus rescripted, since for the time being regard should be had more to age than to dementia.
Si pupillus pupillave cum iusto tutore tutorve cum eorum quo litem agere vult et curator in eam rem petitur, utrum ipsis poscentibus datur an vero et adversario? et sciendum est, sive agant sive conveniantur, dari hunc curatorem posse, sed non alias, quam si ipse petat, cui dari eum oportet. denique cassius libro sexto scripsit talem curatorem neminem dari posse nisi praesentem neque cuique nisi praesenti et postulanti, itaque infanti non potest dari.
If a male or female ward with a lawful tutor, or the tutor with the person with whom he wishes to litigate, seeks a curator for that matter, is he given on their own asking, or indeed on that of the adversary? And it is to be understood that, whether they act as plaintiffs or are convened, this curator can be given, but not otherwise than if the very person to whom it ought to be given petitions for him. Finally, Cassius in Book 6 wrote that such a curator can be given to no one unless present, nor to anyone unless present and requesting; accordingly, it cannot be given to an infant.
Quod dicitur, si indistincte datus sit curator, in totam litem datum videri, fortasse eo spectet, si familiae herciscundae aut communi dividundo aut finium regundorum actio esset cum tutore, et si indistincte datus esset, non solum eo nomine curator esset, quod ageret pupillus pupillave, sed invicem quoque quod cum his ageretur.
What is said, that if a curator has been appointed without distinction, he is to be seen as appointed for the whole litigation, perhaps has regard to this: if there were an action familiae herciscundae or communi dividundo or finium regundorum with the tutor, and if he were appointed without distinction, he would be curator not only in that capacity for what the male or female ward would bring, but also conversely for what would be brought against them.
Etsi titius verbi gratia adversus seium curator petitus sit, idem titius adversus alium tutorem dari poterit, ut ex diversis causis unus duorum curatorum locum optineat. quod quidem et adversus eundem accidet, si in diversas lites in diversis temporibus idem petatur.
Even if Titius, for example, has had a curator petitioned for against Seius, the same Titius can be given a curator against another tutor, so that from diverse causes one of two curators may hold the place. And this will likewise occur even against the same person, if in diverse suits at diverse times the same is sought.
Muto itemque mutae impuberibus tutorem dari posse verum est: sed an auctoritas eis accommodari possit, dubitatur. et si potest tacenti, et muto potest. est autem verius, ut iulianus libro vicesimo primo digestorum scripsit, etiam tacentibus auctoritatem posse accommodare.
It is true that a tutor can be given to a mute man and likewise to a mute woman when under puberty; but it is doubted whether authority can be accommodated to them. And if it can be to one who is silent, it can also be to a mute. But it is more correct, as Julian wrote in the twenty-first book of the Digest, that authority can even be accommodated to those who are silent.
Sub condicione a praesidibus provinciarum non posse dari tutorem placet et, si datus sit, nullius esse momenti dationem: et ita pomponius ait: hanc autem adiectionem, quam praesides provinciarum faciunt " tutorem do, si satisdederit" non condicionem in se habere, sed admonitionem, non aliter ei tutelam committi, quam si satisdederit, hoc est non aliter ei gerere permittendum, quam si rem salvam fore caverit.
It is held that a tutor cannot be appointed by the governors of provinces under a condition, and, if one has been appointed, the appointment is of no effect: and so Pomponius says: but this addition which the governors of provinces make, " I appoint a tutor, if he has provided surety," does not have a condition in itself, but an admonition, that the tutelage is not otherwise to be entrusted to him than if he has provided surety, that is, he is not to be permitted to administer it otherwise than if he has guaranteed that the property will be kept safe.
Ei cuius pater in hostium potestate est tutorem dari non posse palam est: sed si datus sit, an in pendenti sit datio, quaeri potest. et non puto dationem valere: sic enim post patris regressum reccidit in potestatem, atque si numquam pater ab hostibus captus fuisset. immo curator substantiae dari debet, ne in medio pereat.
It is clear that to one whose father is in the power of the enemies a tutor cannot be given: but if one has been given, it can be asked whether the appointment is in suspense. And I do not think the appointment is valid: for thus, after the father’s return, he falls back into the father’s power, as if the father had never been captured by the enemies. Rather, a curator of the estate ought to be given, lest it perish in the meantime.
Si filius familias tutor a praetore datus sit, si quidem pater tutelam agnovit, in solidum debet teneri, si non adgnovit, dumtaxat de peculio. adgnovisse autem videtur, sive gessit sive gerenti filio consensit sive omnino attigit tutelam. unde cum quidam filio scripsisset, ut diligenter tutelam gereret, " cum scias", inquit, " periculum ad nos pertinere", dixi hunc quoque videri adgnovisse: plane si solum monuit filium, non videtur agnita.
If a son under paternal power (filius familias) is given as tutor by the praetor, then if the father has acknowledged the tutelage, he ought to be held liable in solidum; if he has not acknowledged it, only from the peculium. He is deemed to have acknowledged it whether he administered it, or consented to his son’s administering, or in any way at all touched the tutelage. Whence, when a certain man had written to his son that he should conduct the tutelage diligently, " since you know", he says, " that the risk concerns us", I said that this man too seems to have acknowledged it: plainly, if he only admonished the son, it does not seem acknowledged.
In eos extra ordinem animadvertitur, qui probentur nummis datis tutelam occupasse vel pretio accepto operam dedisse, ut non idoneus tutor daretur, vel consulto in edendo patrimonio quantitatem minuerit, vel evidenti fraude pupillorum bona alienasset.
Against those persons extraordinary punishment is inflicted who are proven to have seized guardianship with money paid, or, for a price received, to have lent their services that an unfit tutor be appointed, or who has deliberately diminished the quantity in setting out the patrimony, or has alienated the goods of the wards by evident fraud.
Quaesitum est, an hi, qui in locum absentis rei publicae causa tutores dati sunt, mortuo illo tutores perseverent, an alii petendi essent. paulus respondit eos, qui in locum absentis dati sunt, non reverso eo in eadem causa perseverare usque ad tempus pubertatis.
It was asked whether those who were appointed as tutors in place of one absent on account of public business remain tutors after his death, or whether others ought to be sought. Paulus responded that those who are appointed in place of an absentee, if he does not return, persevere in the same capacity until the time of puberty.
Item scire debemus etiam postumis filiis vel nepotibus vel ceteris liberis licere parentibus testamento tutores dare, qui modo in ea causa sint, ut, si vivo eo nati fuerint, in potestate eius futuri sint neque testamentum rupturi.
Likewise we ought to know that even for posthumous sons or grandsons or other children it is permitted for parents to appoint guardians by testament, provided only that they are in such a condition that, if they had been born while he was alive, they would be in his power and would not be about to rupture the testament.
Item ignorandum non est eum, qui filium in potestate et nepotem ex eo aeque in potestate habebit, si nepoti tutorem dederit, ita recte dedisse videri, si nepos post mortem eius in patris sui potestatem recasurus non sit: quod evenit, si vivo testatore filius in potestate eius esse desierit.
Likewise it must not be ignored that one who has a son in his power and a grandson from him likewise in his power, if he has given a guardian to the grandson, is considered to have given it rightly in this way, provided that the grandson will not, after his death, revert into the power of his father: which happens if, while the testator is alive, the son has ceased to be in his power.
Pater heredi instituto filio vel exheredato tutorem dare potest, mater autem non nisi instituto, quasi in rem potius quam in personam tutorem dare videatur. sed et inquiri in eum, qui matris testamento datus est tutor, oportebit, cum a patre datus, quamvis minus iure datus sit, tamen sine inquisitione confirmatur, nisi si causa, propter quam datus videbatur, in eo mutata sit, veluti si ex amico inimicus vel ex divite pauperior effectus sit.
A father can give a tutor (guardian) to a son either instituted as heir or disinherited; the mother, however, only to one instituted (as heir), as though she seems to give a tutor rather to the thing than to the person. But it will also be necessary to conduct an inquiry into the one who has been given as tutor by the mother’s testament, whereas one given by the father, although appointed with less right, is nevertheless confirmed without inquiry—unless the ground on account of which he seemed to have been appointed has changed in him, for example, if from friend he has become an enemy, or from rich he has become poorer.
Quid si nepotes sint? an appellatione filiorum et ipsis tutores dati sint, videndum. et magis est, ut ipsis quoque dati videantur, si modo liberos dixit: ceterum si filios, non continebuntur: aliter enim filii, aliter nepotes appellantur.
What if there are grandchildren? Whether under the appellation of “sons” guardians were given to them also must be considered. And the more accepted view is that they too seem to have been given, provided he said “liberi” (children); but if he said “filii” (sons), they will not be contained: for “sons” are called one way, “grandchildren” another.
In tutoris dationem utrum levissima condicio an novissima, ut in legato, spectanda est? ut puta " titius cum poterit tutor esto": " titius si navis ex asia venerit tutor esto". et iulianus libro vicesimo digestorum recte scripsit novissimam scripturam esse spectandam.
In the appointment of a tutor, is the most lenient condition or the latest, as in a legacy, to be regarded? For example: " titius, when he is able, let him be tutor": " titius, if a ship shall have come from asia, let him be tutor." And Julian, in the twentieth book of the Digest, rightly wrote that the latest wording is to be regarded.
Qui filium et ex eo nepotem habebat, si nepoti tutorem dederit, habet disceptationem, an aliquo casu non sit utilis datio: ut puta si proponas filium vivo patre decessisse et nepotem ex eo successisse vivo avo. et fortius dicendum est tutelam quoque e lege iunia vellea confirmatum: nam et pomponius libro sexto decimo ex sabino scripsit valere tutoris dationem. cum enim confirmatum sit testamentum, consequenter tutoris quoque datio valebit in eo testamento scripta quod valet, id est ubi nepos vel heres institutus sit vel nominatim exheredatus sit.
One who had a son and from him a grandson, if he appointed a tutor for the grandson, presents a controversy whether in some case the appointment is not efficacious: for instance, suppose the son has died while his father was still alive, and the grandson from him has succeeded while the grandfather is alive. And more strongly it must be said that the tutela too is confirmed by the Lex Iunia Vellea: for Pomponius also wrote in the sixteenth book from Sabinus that the appointment of a tutor is valid. For since the testament is confirmed, consequently the appointment of a tutor also will be valid in that testament which is valid, that is, where the grandson has either been instituted heir or has been expressly disinherited by name.
Si furiosus testamento tutor detur, si quidem, cum furere desierit, tutorem esse recte datum proculus existimat: quod si datus sit pure, negat proculus valere dationem. sed est verius, quod et pomponius ait, recte videri datum et tunc fore tutorem, cum sapere coeperit.
If a man who is insane is appointed by testament as guardian, Proculus thinks that, when indeed he has ceased to rave, he has been rightly appointed guardian; but if he has been appointed purely (i.e., unconditionally), Proculus says the appointment is not valid. But the truer view, as Pomponius also says, is that he is rightly considered appointed, and that he will then be guardian when he begins to be sane.
Servus alienus ita dari tutor potest"si liber erit, tutor esto". quin immo et si pure datus sit, videtur inesse haec condicio " cum liber erit". potest autem quis et extraneo servo defendere ex hac causa fideicommissariam libertatem: quid enim interest, suum servum an alienum tutorem scripserit, cum pupilli favore et publicae utilitatis adsumpta libertas sit in persona eius, qui tutor scriptus est? potest igitur et huic fideicommissaria libertas defendi, si voluntas apertissime non refragetur.
Another’s slave can be appointed tutor in this way: “if he will be free, let him be tutor.” Indeed, nay more, even if he has been appointed purely, this condition seems to be implicit: “when he will be free.” Moreover, one can also defend, on this ground, a fideicommissary liberty for a stranger’s slave; for what difference does it make whether he has written down his own slave or another’s as tutor, since, in favor of the ward and of public utility, liberty has been assumed (conferred) upon the person who has been written as tutor? Therefore, a fideicommissary liberty can be defended for this man as well, if the intention does not most plainly gainsay it.
Si quis sub condicione vel ex die tutorem dederit, medio tempore alius tutor dandus est, quamvis legitimum tutorem pupillus habeat: sciendum est enim, quamdiu testamentaria tutela speratur, legitimam cessare.
If someone has appointed a guardian under a condition or to take effect from a fixed day, in the meantime another guardian must be appointed, although the ward has a legitimate guardian: for it must be understood that, so long as the testamentary tutelage is expected, the legitimate tutelage ceases (is in abeyance).
Si quis cum ignoraret se filium titium habere, filiis tutores dederit, utrum his solis dedisse videatur, quos in potestate scit an ei quoque, quem ignoravit se habere? et magis est, ut huic dedisse non videatur, licet nomen filiorum admittit et ipsum: sed quia de ipso non sensisset, dicendum est cessare in personam eius dationem.
If someone, while ignorant that he had a son Titius, has given tutors to his sons, is he to be seen as having given them only to those whom he knows to be under his power, or also to him whom he did not know he had? And the more correct view is that he is not to be seen as having given to this one, although the name “sons” admits him as well; but because he had not had him in mind, it must be said that the appointment ceases with respect to his person.
Testamento datos tutores non esse cogendos satisdare rem salvam fore certo certius est: sed nihilo minus cum quis offert satisdationem, ut solus administret, audiendus est, ut edicto cavetur. sed recte praetor etiam ceteris detulit hanc condicionem, si et ipsi velint satisdare: nam et si ipsi parati sunt satisdare, non debent excludi alterius oblatione, sed impleta videlicet ab omnibus satisdatione omnes gerent, ut qui contentus est magis satis accipere quam gerere, securus esset.
It is more than certain that tutors appointed by testament are not to be compelled to give security that the property will be kept safe; but nonetheless, when someone offers security so that he alone may administer, he is to be heard, as the edict provides. But rightly the praetor also extended this condition to the others, if they too wish to give security: for even if they themselves are ready to give security, they ought not to be excluded by another’s proffer; but, once the security has been furnished by all, all will administer, so that he who is more content to receive security than to administer may be at ease.
Non omnimodo autem is qui satisdet praeferendus est: quid enim si suspecta persona sit vel turpis, cui tutela committi nec cum satisdatione debeat? vel quid si iam multa flagitia in tutela admisit? nonne magis repelli et reici a tutela, quam solus administrare debeat?
But he who gives surety is not in every case to be preferred: for what if he is a suspect or disgraceful person, to whom a tutelage ought not to be committed even with surety? Or what if he has already committed many shameful offenses in a tutelage? Ought he not rather to be repelled and rejected from the tutelage than to administer it alone?
Si nemo tutorum provocet ad satisdationem, sed exsistat quidam qui tutor non est desideraretque, ut aut satisdent tutores, aut, si non dent, parato sibi satisdare committant tutelam, non est audiendus: neque enim aut extero committenda tutela est, aut testamento dati tutores contra ius satisdationi subiciendi sunt.
If none of the tutors calls for the furnishing of surety, but some person appears who is not a tutor and would desire that either the tutors give surety, or, if they do not give it, that they commit the tutelage to him, he being ready to furnish surety himself, he is not to be heard: for neither is the tutelage to be committed to an outsider, nor are tutors given by a testament to be subjected to surety-giving contrary to law.
Hoc edictum de satisdatione ad tutores testamentarios pertinet: sed et si ex inquisitione dati sint tutores, Marcellus ait et ad hos pertinere hoc edictum et id oratione etiam divorum fratrum significari. ideoque et illi clausulae sunt subiecti, ut, si cui maior pars tutorum decernat, is gerat quem maior pars eligat, quamvis verba edicti ad testamentarios pertineant.
This edict concerning the furnishing of surety pertains to testamentary tutors; but even if tutors have been appointed upon an inquisition, Marcellus says that this edict pertains to these as well, and that this is also indicated by the oration of the deified brothers. And therefore they too are subject to the clause, namely, that if the greater part of the tutors should decree, he shall administer whom the greater part shall elect, although the words of the edict pertain to testamentary tutors.
Testamento datus postumo tutor nondum est tutor, nisi postumus edatur: datur tamen adversus eum substituto pupilli negotiorum gestorum actio. sed si partus editus fuerit, deinde hic tutor, priusquam quicquam gereret, remotus a tutela fuerit, et hic eadem actione tenebitur. si quid plane gessit post editum partum, de eo quoque, quod ante gessit, tutelae iudicio tenebitur et omnis administratio in hac actione veniet.
A tutor given by testament to a posthumous child is not yet a tutor unless the posthumous child is brought forth; however, an action of negotiorum gestorum is granted against him to the substitute of the ward. But if the birth has occurred, and then this tutor, before he transacted anything, has been removed from the tutelage, he too will be held by the same action. If indeed he has transacted anything after the birth was brought forth, he will be liable, by the guardianship action (tutelae iudicium), also for what he did before, and the whole administration will come under this action.
Iure nostro tutela communium liberorum matri testamento patris frustra mandatur, nec, si provinciae praeses imperitia lapsus patris voluntatem sequendam decreverit, successor eius sententiam, quam leges nostrae non admittunt, recte sequetur.
By our law, the guardianship of the common children is vainly entrusted to the mother by the father’s testament; nor, if the provincial governor, having slipped through inexperience, has decreed that the father’s will is to be followed, will his successor rightly follow his decision, which our laws do not admit.
Propter litem inofficiosi testamenti ordinandam exheredato filio, cui tutorem pater dedit, eundem a praetore confirmari oportet: eventus iudicatae rei declarabit, utrum ex testamento patris an ex decreto praetoris auctoritatem acceperit.
On account of a suit concerning an inofficious testament to be instituted for a disinherited son, to whom the father gave a tutor, that same tutor ought to be confirmed by the praetor: the outcome of the adjudged matter will declare whether he received authority from the father’s testament or from the praetor’s decree.
Idem fiet, si intestatum decessisse patrem pupilli nomine defendatur falsumve testamentum nomine pupilli dicatur et si patruus exstet legitimus tutor futurus ab intestato, quia tutorem habenti tutor dari non potest. nam commodius ipse, qui scriptura continetur, a praetore dabitur, ut sine ullo litis praeiudicio iustus tutor auctor pupillo ad eam litem fiat.
The same will be done, if it is maintained, in the ward’s name, that the father died intestate, or that the testament is false in the ward’s name; and if a paternal uncle exists who would be the legitimate tutor arising from intestacy, because a tutor cannot be given to one who has a tutor. For more suitably the very person who is named in the writing will be given by the praetor, so that, without any prejudice to the lawsuit, a lawful tutor may become auctor (authorizing guardian) for the ward for that suit.
Ex sententia senatus consulti liboniani tutor non erit, qui se testamento pupillo tutorem scripsit: cum autem patris voluntas hoc ipsum manu sua declarantis ambigua non esset, eum, quamvis alii tutores essent, curatorem dandum respondi, nec admittendam excusationem, quam iure publico habebat, quoniam promisisse videbatur, nec ut suspectum removeri.
By the tenor of the Libonian senatus‑consultum, he who has written himself by testament as tutor to a ward will not be tutor: but since the father’s will, declaring this very point with his own hand, was not ambiguous, I replied that he should be given as curator, although there were other tutors; and that the excusation which he had by public law was not to be admitted, since he seemed to have promised; nor should he be removed as suspect.
Duo sunt titii, pater et filius: datus est tutor titius nec apparet, de quo sensit testator: quaero, quid sit iuris. respondit: is datus est, quem dare se testator sensit: si id non apparet, non ius deficit, sed probatio, igitur neuter est tutor.
There are two titii, father and son: Titius was appointed tutor, and it does not appear which one the testator had in mind: I ask, what is the law. he answered: the one is appointed whom the testator meant to appoint: if that does not appear, it is not the law that is lacking, but the proof; therefore neither is tutor.
Lucius titius heredes instituit filios suos pupillaris aetatis eisque tutores his verbis dedit: " filiis meis tutores sunto gaius maevius et lucius eros", cui eroti libertatem non dedit: fuit autem eros intra viginti quinque annos aetatis: quaero an possit libertatem sibi vindicare. paulus respondit, quoniam placet eum, qui a domino tutor datus est, libertatem quoque meruisse videri, eum quoque de quo quaeritur in eadem causa habendum et liberum quidem ab adita hereditate esse, tutela autem post legitimam aetatem onerari.
lucius titius appointed as heirs his sons of pupillary age, and to them he gave tutors with these words: "let gaius maevius and lucius eros be tutors to my sons," to which eros he did not grant freedom: however eros was under twenty-five years of age: I ask whether he can vindicate freedom for himself. paulus responded that, since it is the opinion that he who has been given as tutor by his master is also considered to have merited freedom, the one about whom inquiry is made must likewise be held in the same case, and indeed to be free from the inheritance having been entered upon, but to be burdened with the tutelage after lawful age.
Tutoribus ita datis: " lucium titium tutorem do. si is non vivit, tum gaium plautium tutorem do" titius vixerat et tutelam gesserat, deinde mortuus erat. trebatius negat ad plautium pertinere tutelam, labeo contra, proculus quod labeo. ego trebatii sententiam probo, quia illa verba ad mortis tempus referuntur.
with guardians thus appointed: "i appoint lucius titius as guardian. if he is not alive, then i appoint gaius plautius as guardian." titius had lived and had administered the guardianship, then afterward had died. trebatius denies that the guardianship pertains to plautius, labeo the contrary, proculus as labeo. i approve the opinion of trebatius, because those words are referred to the time of death.
Cum codicillis ideo alios tutores dare significasset, quoniam testamento datos quosdam defunctos aut excusationem habere posse comperisset, an nihilo minus qui eorum viverent nec excusati essent, tutores permanerent? respondit nihil proponi, cur non permanerent.
Since by codicils he had for that reason indicated that he appointed other tutors, because he had discovered that some of those given by the testament had died or could have an excuse, would those of them who were living and not excused nonetheless remain tutors? He replied that nothing is put forward why they should not remain.
Eisi tines ohi didomenoi orvws kata diavykas epitropoi, tout' esti kai huf' hwn exryn kai ohis exryn kai hon tropon exryn kai hopou exryn. patyr gar uhiois y ekgonois, ohus exei en ecousiai, orvws didwsin epitropon all' en diavyky. ean de y proswpon toiouton ho my dunatai dounai, ohion mytyr y patrwn y allotrios tis, y proswpon hw my dunatai dounai, ohion patyr uhiw tw my onti en ecousiai y vugatri, y ean eipy " parakalw epimelesvai twn pragmatwn", y en kwdikillois my bebaiwveisi dw epitropon y kouratora, tote to endeon anaplyrousvai ek tys tou hupatikou ecousias ahi diataceis sunexwrysan kai kata tyn gnwmyn bebaiousvai tous epitropous.
There are certain guardians validly appointed by testaments—that is, both by those by whom it was permitted, and for those for whom it was permitted, and in the manner in which it was permitted, and in the place where it was permitted. For a father rightly gives a guardian to sons or grandsons whom he has in his power, but by testament. But if it is a person of such a sort as cannot appoint—such as a mother, a patron, or some stranger—or a person to whom he cannot appoint—such as a father to a son not under his power or to a daughter—or if he says, “I request that the affairs be looked after,” or in codicils not confirmed he gives a tutor or a curator, then the constitutions allowed the deficiency to be supplied by the authority of the Prefect, and that the tutors be confirmed according to his judgment.
Si patronus vel quivis extraneus impuberi, quem heredem instituerit, tutorem dederit et extra ea nihil in bonis habeat pupillus, non male dicetur iudicium eius sequendum esse, qui et personam eius, quem tutorem esse voluerit, noverit et impuberem ita dilexit, ut eum heredem institueret.
If a patron, or any outsider, has appointed a guardian (tutor) for an underage person whom he has instituted as heir, and the ward has nothing in his goods beyond this, it will not be ill said that his judgment is to be followed, since he both knew the person whom he wished to be guardian and loved the underage person to such a degree that he instituted him as heir.
Tutores a patruo testamento datos iussit praetor magistratus confirmare: hi cautionem quoque accipere debuerunt nec voluntas eius, qui tutorem dare non potuit, neglegentiam magistratuum excusat. denique praetor non ante decretum interponere potest quam per inquisitionem idoneis pronuntiatis. unde sequitur, ut, si tutelae tempore solvendo non fuerunt, in id, quod de bonis eorum servari non possit, contra magistratus actio decernatur.
He ordered the magistrates to confirm tutors appointed by a paternal uncle by testament: these also ought to have taken security, nor does the will of one who could not appoint a tutor excuse the negligence of the magistrates. Finally, the praetor cannot interpose a decree before, through inquiry, suitable persons have been declared. Whence it follows that, if at the time of the tutelage they were not solvent, an action is decreed against the magistrates to the extent that from their goods recovery cannot be made.
Si quaeratur, an ex inquisitione recte datus sit tutor, quattuor haec consideranda sunt: an hic dederit qui dare potuit, et ille acceperit cui fuerat dandus, et is datur cuius dandi facultas erat, et pro tribunali decretum interpositum.
If it be asked whether a guardian has been rightly appointed upon an inquisition, these four things are to be considered: whether he has given who was able to give, and whether he has accepted to whom he had to be given, and whether the one is appointed who was eligible to be given, and that a decree has been interposed from the tribunal.
In confirmando tutore hoc praetor inquirere debet, an duraverit patris voluntas: quod in facili est, si proximo mortis tempore tutores non iure vel curatores scripserit pater. nam si ante annos, ut spatio medio potuerit facultatium dati non iure tutoris a patre fieri deminutio, vel morum ante celata vel ignorata emersit improbitas, aut inimicitiae cum patre exarserunt,
In confirming a tutor the praetor ought to inquire into this, whether the father’s will has endured: which is easy, if at the time nearest to death the father has written tutors or curators not according to law. For if years before, such that in the intervening space there could have occurred a diminution of the resources of the tutor appointed not by right by the father, or a wickedness of morals previously concealed or unknown has emerged, or enmities with the father have flared up,
Utilitatem pupillorum praetor sequitur, non scripturam testamenti vel codicillorum. nam patris voluntatem praetor ita accipere debet, si non fuit ignarus scilicet eorum, quae ipsa praetor de tutore comperta habet. quid denique si postea de eo, quem pater testamento codicillisve non iure dedit, scripsit tutorem esse nolle?
The praetor follows the utility of the pupils, not the writing of the testament or of the codicils. For the praetor ought thus to take the father’s intention, if indeed he was not ignorant—namely, of those matters which the praetor himself has ascertained about the tutor. What, finally, if afterward he wrote, concerning him whom the father had appointed by testament or codicils not in accordance with law, that he did not wish him to be tutor?
Avia nepotibus curatorem dedit fideicommisso ei relicto: quaesitum est, an administrare curator compelli debeat. respondit curatorem quidem non esse, sed cum aliquid ei testamento datum esset, teneri eum ex fideicommisso, si non curam susciperet, nisi id quod ei datum esset nollet petere aut reddere esset paratus.
The grandmother appointed a curator for her grandsons, a fideicommissum having been left to him: it was asked whether the curator ought to be compelled to administer. he answered that he was not in fact a curator, but since something had been given to him by the will, he is bound under the fideicommissum if he should not undertake the care, unless he is unwilling to claim what had been given to him or is prepared to return it.
Legitimae tutelae lege duodecim tabularum adgnatis delatae sunt et consanguineis, item patronis, id est his qui ad legitimam hereditatem admitti possint: hoc summa providentia, ut qui sperarent hanc successionem, idem tuerentur bona, ne dilapidarentur.
Legitimate tutelages were conferred by the Law of the Twelve Tables upon agnates and consanguines, likewise upon patrons, that is, upon those who can be admitted to the legitimate inheritance: this with the highest providence, so that those who hoped for this succession might themselves guard the goods, lest they be squandered.
Interdum alibi est hereditas, alibi tutela, ut puta si sit consanguinea pupillo: nam hereditas quidem ad adgnatam pertinet, tutela autem ad adgnatum. item in libertinis, si sit patrona et patroni filius: nam tutelam patroni filius, hereditatem patrona optinebit: tantundemque erit et si sit patroni filia et nepos.
Sometimes the inheritance is with one, the tutelage with another, for instance if there is a consanguine kinswoman to the ward: for the inheritance indeed pertains to the agnate woman, but the tutelage to the agnate man. Likewise with freedmen, if there is a patrona and the patron’s son: for the patron’s son will hold the tutelage, the patrona will obtain the inheritance: and it will be the same also if it is the patron’s daughter and [his] grandson.
Interdum autem etiam sine hereditate tutela defertur, interdum hereditas sine tutela, ut puta in eo qui latitavit, cum servum suum rogatus esset manumittere: nam generaliter divus pius rescripsit aurelio basso ius patroni eum non habere, his verbis: " plane tergiversatio eorum, qui subvertere fideicommissam libertatem velint, eo modo puniatur, ne ius patroni adquirant in eo, quem liberum esse nolunt". idem erit, si filiae adsignatus libertus sit: tutela quidem apud fratres remanebit, ut Marcellus notat, legitima autem hereditas ad sororem pertinebit.
sometimes, however, guardianship is conferred even without an inheritance, sometimes an inheritance without guardianship, for example in the case of one who kept out of sight when he had been asked to manumit his slave: for in general the deified pius wrote back to aurelius bassus that such a one does not have the right of patronage, in these words: "plainly the evasion of those who wish to overturn the fideicommissary freedom shall be punished in this way, namely, that they do not acquire the right of patronage in him whom they do not wish to be free." the same will hold if the freedman has been assigned to the daughter: guardianship indeed will remain with the brothers, as marcellus notes, but the legitimate inheritance will pertain to the sister.
Plane si forte rubriano senatus consulto pervenerit ad libertatem, non habebit tutorem eum qui rogatus est, sed orcinus libertus effectus ad familiam testatoris pertinebit. in qua specie incipit tutela ad liberos patroni primos pertinere, quae ad patronos non pertinuit: quod quidem in omnibus orcinis libertis locum habet testamento manumissis.
Clearly, if by chance he has attained freedom by the Rubrian senatus consultum, he will not have as tutor the one who was requested, but, having become an orcinus freedman, he will pertain to the testator’s familia. in this case the tutela begins to pertain first to the patron’s children, which did not pertain to the patrons: and this indeed has place in all orcinus freedmen manumitted by testament.
Sed si aliquis ex patronis decesserit, tutela penes ceteros patronos est, quamvis ille filium reliquerit. sed et si ab hostibus fuerit captus, interim soli compatroni tutores sunt. simili modo et si in servitutem redactus sit, apparet ceteros esse tutores.
But if any one of the patrons has died, the guardianship is with the other patrons, although he may have left a son. And even if he has been captured by enemies, in the meantime the co-patrons alone are guardians. In a similar manner, if he has been reduced into servitude, it is apparent that the others are guardians.
Proinde si alter ex patronis filium, alter nepotem reliquerit, utrum ad solum filium an vero et ad nepotem tutela pertineat, quia et nepos in familia patris sui proximus est? hoc apparebit ex legitimis hereditatibus: legitima autem hereditas ad solum filium pertinet. ergo et tutela ad solum filium descendit, post filium tunc ad nepotem.
Accordingly, if one of the patrons has left a son and the other a grandson, whether the tutelage pertains to the son alone or indeed also to the grandson, since the grandson too is nearest in his father’s familia? This will appear from legitimate inheritances: but the legitimate inheritance pertains to the son alone. Therefore the tutelage also descends to the son alone, then after the son to the grandson.
Quaeri potest, si patroni filius sit remotus vel excusatus, an nepoti tutela deferatur. et Marcellus in ea sententia est, ut succedi non posse scribat: idcirco enim abierunt tutela, ut alii in locum eorum dentur, non ut successio admittatur.
It can be asked, if the patron’s son has been removed or excused, whether the guardianship is devolved upon the grandson. And Marcellus is of the opinion that one cannot succeed: for they have therefore departed from the guardianship, so that others may be given in their place, not that succession be admitted.
Sed etiam hos cogi satisdare certum est, in tantum ut etiam patronum et patroni filium ceterosque liberos eius cogi rem salvam fore satisdare plerisque videatur. sed hoc causa cognita praetorem statuere debere melius est, utrum debeat satisdare patronus liberique eius an non, ut, si persona honesta sit, remittatur ei satisdatio et maxime, si substantia modica sit: si autem patroni persona vulgaris vel minus honesta sit, ibi dicendum est satisdationem locum habere: ut aut modus tutelae aut persona aut causa admittat satisdationem.
But even these are certainly to be compelled to give surety, to such a degree that it seems to many that even the patron and the patron’s son and his other children are to be compelled to give surety that the property will be kept safe. But it is better that the praetor, with the case examined, should determine whether the patron and his children ought to give surety or not, so that, if the person is honorable, the satisdatio be remitted to him, and especially if his means are modest; but if the persona of the patron is common or less honorable, then it should be said that the satisdatio has a place: so that either the mode of the tutela or the person or the cause admits the satisdatio.
In legitimis et in his, qui a magistratibus dantur, quaesitum est, an uni decerni tutela possit. et ait labeo et uni recte tutelam decerni: posse enim aliquos vel absentes vel furiosos esse: quae sententia utilitatis gratia admittenda est, ut uni decernatur administratio.
In statutory tutors and in those who are given by magistrates, it has been asked whether guardianship can be decreed to one person. And Labeo says that even to one a guardianship is rightly decreed; for some may be either absent or insane: which opinion, for the sake of utility, is to be admitted, so that administration may be decreed to one.
An ergo et provocare se invicem secundum superiorem clausulam possint? et magis est, ut, si omnes satis non dederint vel si finita est satisdatio ( nonnumquam enim satisdatio ab eis non petitur, aut satis desinit esse cautum, aut magistratus municipales ab his quos dederint aut non potuerunt aut noluerunt satis exigere), posse dici etiam in his, quo casu cautum non est, admittendam provocationem.
Can they then also appeal, each against the other, according to the preceding clause? And the more correct view is that, if not all have furnished security or if the security has ended ( for sometimes security is not demanded from them, or the security ceases to be secured, or the municipal magistrates, from the sureties whom they have provided, have either not been able or have not been willing to exact the security), it can be said that even in these cases, in which there is no security, an appeal should be admitted.
An ergo et in patronis idem sit dicendum, maxime ubi cessat satisdatio? et puto in patronis non oportere admitti provocationem nisi ex magna causa, ne quis spem successionis deminuat: nam si patrono tutela non fuerit commissa, poterit per compatronum damno adfici, qui solus rem pupilli male administrat.
So then, should the same be said also with respect to patrons, especially where surety is lacking? And I think that, for patrons, an appeal ought not to be admitted except for a great cause, lest anyone diminish the hope of succession: for if tutelage has not been committed to the patron, he can be made to suffer loss through a co-patron, who alone mismanages the ward’s estate.
Intestato parente mortuo adgnatis defertur tutela. intestatus autem videtur non tantum is qui testamentum non fecit, sed et is qui testamento liberis suis tutores non dedit: quantum enim ad tutelam pertinet, intestatus est. idem dicemus, si tutor testamento datus adhuc filio impubere manente decesserit: nam tutela eius ad adgnatum revertitur.
With a parent dying intestate, tutelage is conferred upon the agnates. Moreover, he is regarded as intestate not only who has not made a testament, but also he who in his testament has not given tutors to his children: for, so far as pertains to tutelage, he is intestate. We say the same if a tutor given by testament has died while the son still remains underage: for his tutelage reverts to the agnate.
Adgnato propior femina, quo minus sit impuberis adgnati tutor, non obicitur, ideoque patruus sororem consanguineam habentis fratris filii legitimus erit tutor, nec amita patruo magno vel matertera fratris filiis ne sint tutores obstat.
A female nearer than an agnate is not objected so as to prevent his being tutor of an impubes agnate; and therefore a paternal uncle will be the legitimate tutor of a brother’s son who has a consanguine sister, nor does an aunt (the father’s sister) hinder a great-uncle, or a maternal aunt hinder brothers’ sons, from being tutors.
Tutor si petitus fuerit habenti, sed absente eo quasi non habenti datus sit, datio nulla est: nam et quoquo modo in petitione tutoris si erratum fuerit in facti causa, maxime post constitutionem divorum fratrum non valet tutoris datio.
If a tutor has been petitioned for one who already has [one], but, because he is absent, a tutor is assigned to him as though to one not having [one], the appointment is null: for also, in whatever way, if in the petition for a tutor there has been error in fact, especially after the constitution of the deified brothers, the appointment of a tutor is not valid.
Nec dubitabit filium quoque patri curatorem dare: quamvis enim contra sit apud celsum et apud alios plerosque relatum, quasi indecorum sit patrem a filio regi, attamen divus pius instio celeri, item divi fratres rescripserunt filium, si sobrie vivat, patri curatorem dandum magis quam extraneum.
Nor will he hesitate to appoint a son as curator for his father as well: for although the contrary has been reported by Celsus and by very many others, as though it were indecorous for a father to be ruled by his son, nevertheless the deified Pius, to Junius Celer, and likewise the deified brothers, wrote back that, if he lives soberly, a son should be given to the father as curator rather than an outsider.
Divus pius matris querellam de filiis prodigis admisit, ut curatorem accipiant, in haec verba: " non est novum quosdam, etsi mentis suae videbuntur ex sermonibus compotes esse, tamen sic tractare bona ad se pertinentia, ut, nisi subveniatur is, deducantur in egestatem. eligendus itaque erit, qui eos consilio regat: nam aequum est prospicere nos etiam eis, qui quod ad bona ipsorum pertinet, furiosum faciunt exitum".
The deified Pius admitted a mother’s complaint concerning prodigal sons, that they should receive a curator, in these words: " it is not novel that certain persons, although from their speech they will seem to be in possession of their mind, nevertheless handle the goods pertaining to themselves in such a way that, unless assistance is brought to them, they are led down into destitution. Therefore someone must be chosen, who may govern them by counsel: for it is equitable that we provide also for those who, as far as their own goods are concerned, bring about a mad outcome".
Si impuberi libertas et hereditas per fideicommissum data sit et institutus adire nolit, senatus censuit eum, si impuberis nomine desideretur, adire cogendum, ut tamen pupillo pupillae tutor ab eo, cui ius dandi erit, detur, qui tutelam retineat, quoad restituatur hereditas et rem salvam fore ab herede caveatur. postea divus hadrianus, ut idem in eo servetur, cui directa libertas data fuerit, rescripsit.
If to an underage person liberty and inheritance have been given by fideicommissum and the instituted heir is unwilling to enter upon it, the Senate decreed that he, if he is required in the name of the underage, must be compelled to enter; yet that a tutor for the boy or girl be appointed by the one who will have the right of appointing, who shall retain the tutelage until the inheritance is restored and security is given by the heir that the property will be kept safe. Afterwards the deified Hadrian wrote in a rescript that the same be observed in the case of one to whom liberty has been given directly.
Quamvis autem a patrono rem salvam pupillo fore non facile cautio exigatur, tamen senatus pro extraneo haberi voluit eum, qui, quod in ipso fuit, etiam libertate privavit impuberem: et ius quidem liberti, quod habet, quia ex causa fideicommissi manumittit, non est ei ablatum, tutela vero sine vinculo cautionis non committitur. quid ergo si non caveat? non dubie tutela non erit apud patronum.
Although, however, security that the property will be safe for the ward is not easily exacted from a patron, nevertheless the senate wished him to be treated as an outsider who, so far as it lay in him, even deprived the underage person of liberty: and indeed the right over the freedman which he has, because he manumits on account of a fideicommissum, has not been taken from him, but guardianship, however, is not entrusted without the bond of security. What then if he does not give security? Without doubt the tutelage will not be with the patron.
Ean mytyr epi tauty ty ahiresei graqy uhious klyronomous ean apoluvwsi tys tou patros ecousias, apoluventwn toutwn kai dia touto klyronomysantwn autos ho patyr kouratwr xeirotonyvynai ou dunatai, kan boulytai, hina my ally hodw touto hoper ouk yboulyvy hy diavemeny genytai. kai touto ohutws hupo tou veiou sebyrou nenomovetytai.
If a mother, in this disposition, writes her sons as heirs, on condition that they be released from the father’s power; once these have been emancipated and on that account have inherited, the father himself cannot appoint a curator, even if he wishes, lest in another way there come to pass that which the testatrix did not wish. And this has thus been legislated by the divine Severus.
" divi marcus et verus cornelio proculo. si quando desint in civitate, ex qua pupilli oriundi sunt, qui idonei videantur esse tutores, officium sit magistratuum inquirere ex vicinis civitatibus honestissimum quemque et nomina praesidi provinciae mittere, non ipsos arbitrium dandi sibi vindicare".
" the deified marcus and verus to cornelius proculus. if at any time there are lacking in the city from which the wards originate men who seem suitable to be guardians, it is the duty of the magistrates to inquire from the neighboring cities for the most honorable men and to send their names to the governor of the province, not to claim for themselves the discretion of appointing them".
Romanius appulus ab iudice appellaverat dicens se non debuisse dari in tutela collegam ei, quem ipse, cum magistratus esset, nominasset suo periculo, ne in una tutela duplex periculum sustineret. decrevit imperator posse quem et fideiussorem pro tutore esse et nihilo minus tutorem dari: itaque detentus est in tutela.
Romanius, an Apulian, had appealed from the judge, saying that a colleague ought not to have been assigned to him in the tutelage of the person whom he himself, when he was a magistrate, had nominated at his own peril, lest in one tutelage he sustain a double peril. The emperor decreed that someone can both be a surety (fideiussor) for a tutor and nonetheless be appointed tutor: accordingly, he was kept in the tutelage.
Ean ohi afylikes my exwsi tous ek twn nomwn kydemonas, ean men epitropwn dewntai dia tyn hylikian, dunantai aitysai autois epitropous katastavynai ohi te suggeneis kai ohi kat' epigamian ^ epigamin^ oikeioi gonewn arrenwn te kai vyleiwn: dunantai kai filoi twn gonewn kai trofeis autwn twn paidwn touto aitysai.
If the minors do not have the curators provided by the laws, then, if they need guardians on account of their age, both the relatives and those related by marriage (affines) of the parents, on the male and the female sides, can request that guardians be appointed for them; the friends of the parents and the nurses of the children themselves may also request this.
Hoi men oun alloi ek proairesews aitousin epitropous: eisi de tines ohis epanagkes estin aitein epitropous, ohion mytyr kai apeleuveroi: ek toutwn gar ahi men zymiountai, ohi de kai kolazontai, ean my aityswsi tous ek twn nomwn kydemonas. hy men gar mytyr ecelaunetai tys tou paidos nomimou klyronomias, hws ousa anacia labein klyron nomimon, my frontisasa autw katastavynai epitropon. kai ou monon ean my aitysy, alla kai, hon an aitysy, hosias xarin aitysy ton afevynai dunamenon, eita afeventos autou y kai apoblyventos allon my aitysy palin, y ecepitydes kakous aitysy.
Accordingly, other people request guardians by choice; but there are some for whom it is of necessity to request guardians, such as a mother and freedmen: for of these, some are penalized, and some even punished, if they do not request the guardians provided by the laws. For the mother is excluded from the child’s lawful inheritance, as being unworthy to receive a lawful inheritance, because she did not take care that a guardian be appointed for him. And not only if she does not request, but also if, when she does request, out of favor she requests that one be excused who can be excused, and then, after he has been excused or has withdrawn, she does not again request another, or she requests men deliberately bad.
Ean mentoi tis y daneistys y legatarios y allyn anagkaian exy pros ton orfanon sustasin, autos men ouk aitysei epitropon tw orfanw, alla tous aitein dunamenous aciwsei aitysai, y ean ohutoi apoknyswsi, tote proselvwn tw hygoumenw auto touto erei, hina katastaventos epitropou nomimou he pros ton orfanon genytai sustasis.
If, however, someone—whether a creditor or a legatee—has any necessary dealing with the orphan, he himself shall not ask for a guardian for the orphan, but shall require those who are able to ask to do so; and if these shrink back, then, going to the magistrate, he shall say this very thing, so that, once a lawful guardian has been appointed, the dealing with the orphan may be established.
Ei de allos aitysai kouratora dunatai tw afyliki, ezytyvy. kai oulpianos ho kratistos ohutws grafei, hws deon allon autw my aitein, alla auton heautw, et apud paulum libro nono responsorum ita relatum est curatorem ignorante nec mandante pupilla non recte ei a tutore petitum videri periculumque eorum, quae curator non iure datus gessit, non sine ratione eum qui petit cogendum agnoscere. et alia parte eiusdem libri ita respondit, si matris iudicium princeps secutus curatores filiae eius dedit, periculum administrationis eorum eam respicere debere.
Whether another can request a curator for the underage person has been inquired. And Ulpian, the most excellent, thus writes, that it is fitting that another not request on his behalf, but that he himself for himself; and in Paul, in book nine of the Responses, it is thus reported: that, the girl-ward being unaware and not having given a mandate, it seems not correct that it was sought for her by a tutor, and that the peril of those things which a curator not lawfully appointed has transacted ought, not without reason, to be acknowledged under compulsion by the one who petitioned. And in another part of the same book he answered thus: if the prince, following the judgment of the mother, has appointed curators for her daughter, the peril of their administration ought to concern her.
Sin autem idoneis datis tutoribus pluribus unus eorum vel decessit vel temporalem excusationem accepit, mater, quae propterea in loco illius alium non petit, quia numerus reliquorum administrationi tutelae sufficiebat, incidit quidem in verba constitutionis, sed sententia excusatur.
But if, however, after several suitable tutors have been appointed, one of them either died or received a temporary excuse, the mother—who for that reason does not seek another in his place, because the number of the remaining was sufficient for the administration of the tutelage—does indeed fall under the words of the constitution, but is excused by its sense.
Haec autem mater ab omni quidem bonorum vindicatione intestatorum filiorum repellitur. si vero maritus ei fideicommissum a filio reliquerit, cui mulier non petit tutorem, " si sine liberis decesserit", vel sub hac ipsa condicione " si intestatus mortuus erit", fideicommissi petitio, quae ex alieno iudicio descendit, non est perempta.
This mother, moreover, is indeed repelled from any vindication of the goods of intestate sons. But if the husband has left to her a fideicommissum from the son, for which the woman does not seek a guardian, " si sine liberis decesserit", or under this very condition " si intestatus mortuus erit", the petition for the fideicommissum, which descends from another’s judgment, is not extinguished.
Quae autem suspectum tutorem non fecit, nec verbis nec sententia constitutionis in poenam incidit, quod eiusmodi facta diiudicare et aestimare virilis animi est et potest etiam delicta ignorare mater, satisque est eam petisse talem, qui inquisitione per praetorem habita idoneus apparuit. et ideo nec iudicium eius sufficit ad eligendos tutores, sed inquisitio fit, etiamsi maxime in bona propria liberis suis testamento tutores dederit.
But she who has not made the guardian suspect falls under no penalty, neither by the words nor by the sense of the constitution, because to adjudge and appraise deeds of such a kind belongs to a manly spirit, and a mother can even be ignorant of delicts; and it is enough that she has requested such a person as, an inquisition having been held through the praetor, appeared suitable. And therefore her judgment does not suffice for choosing guardians, but an inquisition is made, even if she has, by testament, given guardians to her children, particularly with respect to her own goods.
Ex quo scit se tutorem datum si cesset tutor, suo periculo cessat: id enim a divo marco constitutum est, ut, qui scit se tutorem datum nec excusationem si quam habet allegat intra tempora praestituta, suo periculo cesset.
From the moment he knows that he has been appointed guardian (tutor), if the tutor is remiss, he is remiss at his own peril: for this was established by the deified Marcus, that he who knows himself appointed guardian (tutor) and does not allege an excuse, if he has any, within the times prescribed, is remiss at his own peril.
Sufficit tutoribus ad plenam defensionem, sive ipsi iudicium suscipiant sive pupillus ipsis auctoribus, nec cogendi sunt tutores cavere, ut defensores solent. licentia igitur erit, utrum malint ipsi suscipere iudicium an pupillum exhibere, ut ipsis auctoribus iudicium suscipiatur: ita tamen, ut pro his, qui fari non possunt vel absint, ipsi tutores iudicium suscipiant, pro his autem, qui supra septimum annum aetatis sunt et praesto fuerint, auctoritatem praestent.
It suffices for guardians for a full defense, whether they themselves undertake the action or the ward does so with them as authorizers; nor are guardians to be compelled to give security, as defenders are accustomed. There will therefore be liberty whether they prefer to take up the action themselves or to produce the ward, so that the action is undertaken with them as authorizers; provided, however, that for those who cannot speak or are absent the guardians themselves undertake the action, but for those who are above the seventh year of age and are present, they provide authority.
In causis autem adultorum licentia erit agentibus vel ipsum adultum praesentem in iudicium vocare, ut consensu curatoris conveniatur, vel contra curatorem agere, ut ipse litem suscipiat. in absentibus autem adultis omnimodo contra curatorem agendum.
In causes, moreover, of adults, there will be leave for those prosecuting either to call the adult himself, if present, into court, so that by the consent of the curator he may be convened, or to proceed against the curator, so that he himself may undertake the suit. in the case, however, of adults being absent, by all means one must proceed against the curator.
Si tutor condemnavit sive ipse condemnatus est, pupillo et in pupillum potius actio iudicati datur et maxime, si non se liti optulit, sed cum non posset vel propter absentiam pupilli vel propter infantiam auctor ei esse ad accipiendum iudicium. et hoc etiam divus pius rescripsit et exinde multis rescriptis declaratum est in pupillum dandam actionem iudicati semper tutore condemnato, nisi abstineatur: tunc enim nec in tutorem nec in pupillum. nec pignora tutoris capienda esse saepe rescriptum est.
If the tutor has obtained a condemnation or has himself been condemned, the action on the judgment is given to the pupil and against the pupil rather than to/against the tutor; and especially if he did not present himself to the suit, but when he could not do so either because of the pupil’s absence or because, on account of infancy, he could not be an auctor for him in accepting the iudicium. And the deified Pius also rescripted this, and thereafter by many rescripts it has been declared that the action on the judgment is always to be given against the pupil whenever the tutor has been condemned, unless there is abstention: for then neither against the tutor nor against the pupil. And it has often been rescripted that the tutor’s pledges are not to be taken.
Amplius Marcellus libro vicesimo primo digestorum scribit et si satisdedit tutor, mox abstinuit pupillus, fideiussoribus quoque eius debere subveniri: sed et si pupillus non abstinuit, quemadmodum ipsi, ita et fideiussoribus eius subveniri, maxime si pro absente pupillo vel pro infante satisdedit.
Further, Marcellus in the twenty-first book of the Digest writes that, even if the tutor has furnished security and soon thereafter the ward abstained, relief ought also to be afforded to his sureties; but even if the ward has not abstained, relief should be afforded to his sureties just as to himself, especially if he furnished security on behalf of a ward who was absent or an infant.
Si plures curatores dati sunt, pomponius libro sexagesimo octavo ad edictum scripsit ratum haberi debere etiam quod per unum gestum est: nam et in furiosi curatoribus, ne utilitates furiosi impediantur, praetor uni eorum curationem decernet ratumque habebit, quod per eum sine dolo malo gestum est.
If several curators have been appointed, Pomponius in the sixty-eighth book on the Edict wrote that even what has been transacted by one ought to be held valid: for also in the case of the curators of an insane person, lest the interests of the insane person be impeded, the praetor will decree the administration to one of them and will hold valid what has been done by him without dolus malus.
Si parens vel pater qui in potestate habet destinaverit testamento, quis tutorum tutelam gerat, illum debere gerere praetor putavit, meritoque parentis statur voluntati, qui utique recte filio prospexit. tantundem praetor facit et de his, quos parens destinavit testamento, ipse autem confirmavit, ut, si parens declaravit, quem velit tutelam administrare, ille solus administret.
If a parent, or a father who has him in his power, has designated by testament which of the tutors should bear the tutelage, the praetor has thought that that person ought to bear it; and deservedly deference is paid to the parent’s will, who assuredly has provided rightly for his son. The praetor does the same also concerning those whom the parent has designated by testament, and he has himself confirmed that, if the parent has declared whom he wishes to administer the tutelage, that person alone shall administer.
Ceteri igitur tutores non administrabunt, sed erunt hi, quos vulgo honorarios appellamus. nec quisquam putet ad hos periculum nullum redundare: constat enim hos quoque, excussis prius facultatibus eius qui gesserit, conveniri oportere: dati sunt enim quasi observatores actus eius et custodes, imputabiturque eis quandoque, cur, si male eum conversari videbant, suspectum eum non fecerunt. adsidue igitur et rationem ab eo exigere eos oportet et sollicite curare, qualiter conversetur, et si pecunia sit, quae deponi possit, curare, ut deponatur ad praediorum comparationem: blandiuntur enim sibi, qui putant honorarios tutores omnino non teneri: tenentur enim secundum ea quae supra ostendimus.
Therefore the other guardians will not administer, but will be those whom we commonly call “honorary.” Nor let anyone think that no peril redounds upon these: for it is established that these too, once the assets of the one who has managed have first been exhausted, ought to be sued; for they have been appointed, as it were, observers of his acts and custodians, and it will sometimes be imputed to them why, if they saw him conducting himself badly, they did not have him declared suspect. Therefore they ought continually to demand an account from him and carefully see how he conducts himself; and, if there is money which can be deposited, see to it that it is deposited for the purchase of estates. They flatter themselves, indeed, who think that honorary guardians are not liable at all: for they are held liable according to the things which we have shown above.
Quamvis autem ei potissimum se tutelam commissurum praetor dicat, cui testator delegavit, attamen nonnumquam ab hoc recedet, ut puta si pater minus penso consilio hoc fecit, forte minor viginti quinque annis, vel eo tempore fecit, quo iste tutor bonae vitae vel frugi videbatur, deinde postea idem coepit male conversari ignorante testatore, vel si contemplatione facultatium eius res ei commissa est, quibus postea exutus est.
Although, however, the praetor says that he will most especially entrust the tutelage to him to whom the testator delegated it, nevertheless he will sometimes depart from this: for instance, if the father did this with less well‑weighed counsel, perhaps being under twenty‑five years, or he did it at a time when that tutor seemed to be of good life or frugal, and afterwards the same person began to conduct himself badly with the testator unaware; or if, in contemplation of his resources, the matter was committed to him, of which he was afterwards stripped.
Nam et si unum pater dederit tutorem, nonnumquam ei adiunguntur curatores: nam imperator noster cum patre rescripsit, cum duos quis libertos suos tutores dedisset, unum rerum italicarum, alium rerum africanarum, curatores eis adiungendos, nec patris secuti sunt voluntatem.
For even if a father has appointed one tutor, sometimes curators are added to him: for our emperor, together with his father, wrote in a rescript that, when someone had appointed two of his freedmen as tutors—one for Italian affairs, the other for African affairs—curators were to be added to them, nor did they follow the father’s intention.
Apparet igitur praetori curae fuisse, ne tutela per plures administretur, quippe etsi pater non destinaverit quis gerere debeat, attamen id agit, ut per unum administretur: sane enim facilius unus tutor et actiones exercet et excipit.
It appears, therefore, to have been a concern of the praetor that the tutela not be administered by several, since although the father may not have designated who ought to manage it, nevertheless he arranges that it be administered by one: for indeed a single tutor both exercises actions and receives them more easily.
Ne per multos tutela spargatur, si non erit a testatore electus tutor aut gerere nolet, tum is gerat, cui maior pars tutorum tutelam decreverit: praetor igitur iubebit eos convocari aut, si non coibunt aut coacti non decernent, causa cognita ipse statuet, quis tutelam geret.
Lest the guardianship be scattered among many, if a tutor (guardian) will not have been chosen by the testator, or is unwilling to administer, then let him administer to whom the greater part of the tutors shall have decreed the guardianship: therefore the praetor will order them to be convened, or, if they will not come together or, when compelled, will not decide, with the case known he himself will determine who shall administer the guardianship.
Ita autem depositioni pecuniarum locus est, si ea summa corradi, id est colligi possit, ut comparari ager possit: si enim tam exiguam esse tutelam facile probatur, ut ex nummo refecto praedium puero comparari non possit, depositio cessat. quae ergo tutelae quantitas depositionem inducat, videamus. et cum causa depositionis exprimatur, ut praedia pupillis comparentur, manifestum est, ut ad minimas summas non videatur pertinere: quibus modus praefiniri generaliter non potest, cum facilius causa cognita per singulos possit examinari.
But there is room for the deposit of monies only if that sum can be scraped together, that is, collected, so that land can be purchased; for if it is easily proved that the tutelage is so scanty that from the money made good an estate cannot be bought for the boy, the deposit ceases. Therefore, let us see what magnitude of tutelage brings about a deposit. And since the cause of the deposit is stated—namely, that lands be bought for the wards—it is clear that it does not seem to pertain to the very smallest sums; for these a measure cannot be predetermined in general, since, the case being known, it can more easily be examined in individual instances.
Quod si quis tutelam mandaverit gerendam gestaque fuerit ab eo cui mandatum est, locus erit tutelae actioni: videtur enim gessisse qui per alium gessit. quod si non accessit is cui mandatum est, utili actioni convenitur.
But if someone has mandated that a tutelage be conducted and it has been managed by the one to whom it was mandated, there will be room for the action of tutelage: for he is deemed to have managed who has managed through another. But if the one to whom it was mandated did not enter upon it, he is sued by the useful action.
Si tutor pupillum suum puberem factum non admonuerit, ut sibi curatores peteret ( sacris enim constitutionibus hoc facere iubetur qui tutelam administravit), an tutelae iudicio teneatur? et magis puto sufficere tutelae iudicium, quasi conexum sit hoc tutelae officio, quamvis post pubertatem admittatur.
If a tutor has not admonished his pupil, once he has reached puberty, to seek curators for himself (for by sacred constitutions he who has administered the guardianship is ordered to do this), is he held by the action of guardianship? And I rather think the action of guardianship suffices, as though this were connected with the office of guardianship, although it is admitted after puberty.
Post completum vicesimum quintum annum aetatis si nondum rationes redditae sunt nec ad causam instrumenta pertinentia, fidei ac verecundiae curatorum convenit, ut consilio suo coeptam litem perficiant. si igitur cessent in his quae constituta sunt faciendis, magis puto sufficere negotiorum gestorum iudicium etiam si iam actum est, si tamen huius rei ratio reddita non est.
After the completion of the twenty-fifth year of age, if the accounts have not yet been rendered nor the instruments pertaining to the cause, it accords with the good faith and modesty of the curators to perfect, by their counsel, the suit that has been begun. Therefore, if they are remiss in doing the things that have been established to be done, I think rather that the action for management of affairs (negotiorum gestorum) suffices, even if the matter has already been litigated, provided that an accounting of this business has not been rendered.
Iulianus libro vicesimo primo digestorum huiusmodi speciem proponit: quidam decedens filiis suis dederat tutores et adiecerat: " eosque aneclogistos esse volo". et ait iulianus tutores, nisi bonam fidem in administratione praestiterint, damnari debere, quamvis testamento comprehensum sit, ut aneclogisti essent: nec eo nomine ex causa fideicommissi quicquam consequi debebunt, ut ait iulianus, et est vera ista sententia: nemo enim ius publicum remittere potest huiusmodi cautionibus nec mutare formam antiquitus constitutam. damnum vero, quodcumque ex tutela quis senserit, et legari et per fideicommissum ei relinqui potest.
Julian, in the twenty-first book of the Digest, proposes a case of this kind: a certain man, dying, had given tutors to his sons and added, "and I wish them to be aneclogisti" (that is, not bound to render accounts). And Julian says that the tutors, unless they have exhibited good faith in their administration, ought to be condemned, although it is included in the testament that they should be aneclogisti; nor under that title will they obtain anything by reason of a fideicommissum, as Julian says; and that opinion is true: for no one can remit public law by such clauses, nor change the form established from ancient times. But the loss, whatever anyone has sustained from a tutelage, can both be bequeathed and be left to him by fideicommissum.
Papinianus libro quinto responsorum ita scribit: pater tutelam filiorum consilio matris geri mandavit et eo nomine tutores liberavit. non idcirco minus officium tutorum integrum erit, sed viris bonis conveniet salubre consilium matris admittere, tametsi neque liberatio tutoris neque voluntas patris aut intercessio matris tutoris officium infringat.
Papinian, in the fifth book of his Responses, writes thus: a father mandated that the guardianship of his children be managed by the mother’s counsel, and on that ground he released the tutors. Not on that account will the tutors’ office be any the less intact; rather, it will be fitting for good men to admit the mother’s salutary counsel, although neither the release of a tutor nor the will of the father or the intercession of the mother infringes the tutor’s office.
Usque adeo autem licet tutoribus patris praeceptum neglegere, ut, si pater caverit, ne quid rei suae distraheretur vel ne mancipia distrahantur vel ne vestis vel ne domus vel ne aliae res periculo subiectae, liceat eis contemnere hanc patris voluntatem.
To such an extent, moreover, is it permitted for tutors to neglect the father’s precept, that, if the father has provided by stipulation that none of his property be alienated, or that slaves not be sold, or that clothing, or the house, or other things subject to peril not be sold, it is lawful for them to contemn this will of the father.
Ex quo innotuit tutori se tutorem esse, scire debet periculum tutelae ad eum pertinere. innotescere autem qualiterqualiter sufficit, non utique testato eum conveniri: nam etsi citra testationem, scilicet undecumque cognovit, nulla dubitatio est, quin debeat periculum ad ipsum respicere.
From the time it has become known to the guardian that he is a guardian, he ought to know that the peril of the guardianship pertains to him. it suffices, moreover, that it become known in whatever manner, not necessarily that he be proceeded against with attestation: for even without attestation—namely, from wherever he learned—there is no doubt that the peril ought to concern him.
Tutor, qui repertorium non fecit, quod vulgo inventarium appellatur, dolo fecisse videtur, nisi forte aliqua necessaria et iustissima causa allegari possit, cur id factum non sit. si quis igitur dolo inventarium non fecerit, in ea condicione est, ut teneatur in id quod pupilli interest, quod ex iureiurando in litem aestimatur. nihil itaque gerere ante inventarium factum eum oportet, nisi id quod dilationem nec modicam exspectare possit.
A guardian who has not made a repertory, which is commonly called an inventory, is deemed to have acted with fraud, unless perhaps some necessary and most just cause can be alleged why this was not done. If, therefore, someone has failed to make an inventory through fraud, he is in such a condition that he is held for what it is in the ward’s interest, which is assessed on the basis of an oath in the lawsuit. Accordingly, he ought to transact nothing before the inventory has been made, except that which cannot await even a moderate delay.
Si tutor cessaverit in distractione earum rerum quae tempore depereunt, suum periculum facit: debuit enim confestim officio suo fungi. quid si contutores exspectabat vel differentes vel etiam volententes se excusare, an ei ignoscatur? et non facile ignoscetur: debuit enim partibus suis fungi non quidem praecipiti festinatione, sed nec moratoria cunctatione.
If a guardian has been remiss in the alienation of those things which perish with time, he makes it his own peril: for he ought forthwith to discharge his duty. What if he was awaiting his co‑guardians, whether postponing or even wishing to excuse themselves—is he to be forgiven? He will not easily be forgiven: for he ought to discharge his own part, not indeed with precipitate haste, but neither with moratory procrastination.
Competet adversus tutores tutelae actio, si male contraxerint, hoc est si praedia comparaverint non idonea per sordes aut gratiam. quid ergo si neque sordide neque gratiose, sed non bonam condicionem elegerint? recte quis dixerit solam latam neclegentiam eos praestare in hac parte debere.
The action of guardianship will lie against guardians if they have contracted badly, that is, if they have purchased estates not suitable through sordidness or favor. What then if neither sordidly nor by favor, but they have chosen not good condition? One might rightly say that in this respect they ought to be liable only for gross negligence.
Si post depositionem pecuniae comparare praedia tutores neglexerunt, incipient in usuras conveniri: quamquam enim a praetore cogi eos oportet ad comparandum, tamen, si cessent, etiam usuris plectendi sunt tarditatis gratia, nisi si per eos factum non est quo minus compararent.
If, after the deposit of the money, the guardians have neglected to purchase estates, they will begin to be proceeded against for interest: for although they ought to be compelled by the praetor to make the purchase, nevertheless, if they delay, they are also to be punished with interest for their tardiness, unless it was not through them that they were prevented from purchasing.
Pecuniae, quam in usus suos converterunt tutores, legitimas usuras praestant, sed hoc ita demum, si evidenter doceantur pecuniam in usus suos convertisse: ceterum non utique qui non faeneravit vel non deposuit, in suos usus vertit, et ita divus severus decrevit. doceri igitur debet in usus suos pecuniam vertisse.
Money which tutors have converted to their own uses entails lawful interest, but only if it is clearly shown that they converted the money to their own uses: moreover, it is not at all the case that one who has not put it out at interest or has not deposited it has thereby turned it to his own uses, and thus the deified Severus decreed. Therefore it must be shown that he turned the money to his own uses.
Si deponi oporteat pecunias ad praediorum comparationem, si quidem factum est, usurae non current: sin vero factum non est, si quidem nec praeceptum est, ut deponantur, pupillares praestabuntur, si praeceptum est et neglectum, de modo usurarum videndum est. et solent praetores comminari, ut, si non fiat depositio vel quanto tardius fiat, legitimae usurae praestentur: si igitur comminatio intercessit, iudex qui quandoque cognoscet decretum praetoris sequetur.
If moneys ought to be deposited for the purchase of estates, if indeed it has been done, interest will not run; but if it has not been done—if, to be sure, it was not ordered that they be deposited—pupillary interest will be rendered; if it was ordered and neglected, the measure of the interest must be considered. And praetors are wont to threaten that, if the deposit is not made, or by how much later it is made, lawful interest be paid. Therefore, if the threat has intervened, the judge who shall in due course take cognizance will follow the praetor’s decree.
Idem solent facere praetores etiam circa eos tutores, qui negant habere ad alendos pupillos penes se aliquid, ut quidquid constiterit penes eos esse, eius gravissima usura pendatur: et hoc persequi oportere iudicem palam est cum et alia poenae adiectione.
The praetors are wont to do the same even with respect to those tutors who deny that they have anything in their possession for sustaining the wards, namely, that whatever is established to be in their possession, the most severe interest be paid; and it is clear that the judge ought to pursue this, with the addition also of another penalty.
Quae autem sunt pupillares usurae, videndum est. et apparet hanc esse formam usurarum, ut eius quidem pecuniae, quam quis in usus suos convertit, legitimam usuram praestet. sed et si negavit apud se esse pecuniam et praetor pronuntiavit contra eum, legitimas solvere debebit, vel si moram depositioni fecit et praetor irrogavit ei legitimas.
But what the pupillary interests are must be considered. And it appears that this is the form of the interests: that for that money which someone has converted to his own uses, he should render the legitimate interest. But also, if he denied that the money was in his keeping and the praetor pronounced against him, he will have to pay the legitimate [interests]; or if he caused delay in making the deposit and the praetor imposed upon him the legitimate [interests].
But also, if, while he denies that a certain amount is in his possession, he has imposed upon the wards, for the dispatch of their burdens, the necessity of receiving loaned money with lawful interest, he will be liable for the lawful [interest]. Likewise, if he has exacted lawful interest from debtors. From other causes he will pay interest according to the custom of the province—either quincunxes or trientes, or, if there are any others, lighter rates that are in frequent use in the province.
Usurae a tutoribus non statim exiguntur, sed interiecto tempore ad exigendum et ad collocandum duum mensum, idque in iudicio tutelae servari solet: quod spatium seu laxamentum temporis tribui non oportet his, qui nummos impuberum vel adulescentium in suos usus converterunt.
Interest is not immediately exacted from guardians, but, with an interval interposed of two months for demanding and for investing, and this is usually observed in the action of guardianship: which interval or relaxation of time ought not to be granted to those who have converted the money of the impuberes or of adolescents to their own uses.
Si tutor pro contutore condemnetur, an etiam in usuras condemnandus sit, quaeritur. et placet, ut multis rescriptis continetur et papinianus libro duodecimo quaestionum ait, etiam in usuras eum condemnandum, si suspectum facere supersedit, et quidem eas demum usuras cogendum praestare, quas etiam suae administrationis cogitur.
If a guardian is condemned on account of a co‑guardian, the question arises whether he must also be condemned to interest. And it is the settled view, as is contained in many rescripts, and Papinian in book 12 of the Questions says, that he too must be condemned to interest, if he refrained from having him declared suspect; and indeed he is to be compelled to render only such interest as he is compelled to render for his own administration.
Si tutelae agat is, cuius tutela administrata est, dicendum est nonnumquam diem creditae pecuniae exspectandam, si forte tutor pecunias crediderit pupilli nomine, quarum exigendarum dies nondum venit. sane quod ad pecunias attinet, ita demum verum est, si potuit et debuit credere: ceterum si non debet credere, non exspectabitur.
If the one whose guardianship has been administered brings the action on guardianship, it must be said that sometimes the due date of the loaned money must be awaited, if perchance the tutor has lent monies in the ward’s name, whose day for exacting has not yet come. Indeed, as regards the monies, this is only true if he could and ought to have lent; but if he ought not to lend, it will not be awaited.
Quotiens tutor pecuniam pupillarem faenori dat, stipulatio hoc ordine facienda est. stipulari enim debet aut pupillus aut servus pupilli: quod si neque pupillus eius aetatis erit, ut stipulari possit, neque servum habebit, tunc ipse tutor quive in eius potestate erit, quo casu iulianus saepissime scripsit utilem actionem pupillo dandam. sed et si absens sit pupillus, oportere tutorem suo nomine stipulari nequaquam ambigendum est.
Whenever a tutor gives a pupil’s money out at interest, the stipulation must be made in this order. For either the pupil ought to stipulate, or the pupil’s slave; but if neither will the pupil be of such an age that he can stipulate, nor will he have a slave, then the tutor himself, or someone under his power, should do so—in which case Julian most frequently wrote that a “useful action” ought to be granted to the pupil. But even if the pupil is absent, there is by no means any doubt that the tutor ought to stipulate in his own name.
Si pater familias eum, pro quo fideiussit, tutorem dederit filio suo, officio tutoris convenit, ut, cum dies pecuniae praeterierit, creditori debitum solvat: et ideo cessante eo si pupillus suae tutelae factus solverit ex causa fideiussoria, non solum mandati, sed etiam tutelae agere poterit: hoc enim ei imputatur, cur pro se non solverit. quod si in diem debitor fuit iste tutor, quibusdam videtur non venire in tutelae iudicium, si modo is dies post tutelam finitam supervenit: quod si dies adhuc durante tutela venit, putant omnimodo devolvi in tutelae iudicium. ego et hoc et superius ita verum puto, si facultatibus labi tutor coepit: ceterum si idoneus tutor fuit, nihil venire in tutelae iudicio.
If a paterfamilias appoints as guardian for his son the person for whom he has stood fidejussor (surety), it accords with the duty of a guardian that, when the day for the money has passed, he pay the creditor the debt; and therefore, he failing to do so, if the ward, having become his own guardian, pays by reason of the fidejussory cause, he will be able to bring not only the action of mandate, but also the action on guardianship: for this is imputed to him, why he did not pay on his own behalf. But if this guardian was a debtor ad diem (on a term), to some it seems that the matter does not come into the guardianship action, provided that the due day supervened after the guardianship ended; whereas if the day arrived while the guardianship was still continuing, they think it in every way devolves into the guardianship action. I for my part think both this and the foregoing to be true on this footing, if the guardian began to slip in his means; but if the guardian was suitable/solvent, nothing comes into the guardianship action.
Sed si sub usuris gravioribus patri pupilli pecuniam debuit quam sint pupillares, videndum est, an ei aliquid imputetur. et si quidem solvit, nihil est quod ei imputetur: potuit enim solvere nec onerare se usuris: si vero non solvit, usuras cogendus est agnoscere, quas a se exigere debuit.
But if he owed money to the father of the ward under heavier usuries than are pupillary, it must be considered whether anything is to be imputed to him. And if indeed he paid, there is nothing that is to be imputed to him: for he could have paid and not burdened himself with usuries: but if he did not pay, he is to be compelled to acknowledge the usuries which he ought to have exacted from himself.
Sicut autem solvere tutor quod debet, ita et exigere quod sibi debetur potest, si creditor fuit patris pupilli: nam et sibi solvere potest, si modo fuit pecunia unde solvat, et si usurae fuerunt graviores quae ei debebantur, relevabitur eis pupillus, quia tutor se potuit liberare, sicut aliis quoque solvere et potuit et debuit.
Just as, moreover, the tutor may pay what he owes, so too he can exact what is owed to himself, if he was a creditor of the ward’s father: for he can also pay to himself, provided there was money from which to pay; and if the usury (interest) that was owed to him was heavier, the ward will be relieved of them, because the tutor could have freed himself, just as he both could and ought to have paid others as well.
Nec utique necesse habet, si conveniatur, per iudicem solvere, idcircoque si mala causa pupillaris est, denuntiare sibi verum debet. denique imperator antoninus cum patre etiam honoraria eos imputare pupillo prohibuit, si supervacaneam litem instituissent, cum convenirentur a vero creditore: nec enim prohibentur tutores bonam fidem agnoscere.
Nor indeed does he necessarily have, if he is sued, to pay through the judge; and therefore, if the pupil’s case is bad, he ought to give notice of the truth. Finally, Emperor Antoninus, together with his father, even forbade them to impute honoraria to the pupil, if they had instituted a superfluous lawsuit when they were being sued by the true creditor: for tutors are not prohibited from acknowledging good faith.
Constat eum, qui ad augmentum datur, ut puta ad bona materna quae postea accesserunt vel ad quid aliud augmentum, administrare bona pristina non solere. si autem suspectum facere priorem tutorem supersedit vel satis ab eo exigere, plectetur.
It is settled that he who is appointed for augmentation—say, for maternal goods which have afterward accrued, or for some other augmentation—is not wont to administer the pristine goods. But if he has refrained from making the prior guardian suspect, or from exacting security from him, he shall be punished.
Per contrarium autem qui datus est simpliciter tutor pupillo vel curator, si quid postea augmenti accesserit, periculo tenetur, quamvis soleat ad augmentum dari curator: quae res non facit, ut ipsa augmenta non pertineant ad curam priorum, ad quos omnis utilitas pupillorum debet pertinere. sive igitur datus est, communicatur periculum cum prioribus, sive datus non est, tenetur administrationis necessitate is qui antea erat datus.
On the contrary, however, the one who has been simply appointed as tutor to the pupil or as curator, if any augmentation has afterwards accrued, is held to the peril, although a curator is wont to be given for the augmentation: which circumstance does not make it that the augmentations themselves do not pertain to the care of the prior guardians, to whom all the utility of the pupils ought to pertain. Therefore, whether he has been appointed, the peril is shared with the prior ones; or if he has not been appointed, the one who was previously appointed is held by the necessity of administration.
Quae bona fide a tutore gesta sunt, rata habentur etiam ex rescriptis traiani et hadriani: et ideo pupillus rem a tutore legitime distractam vindicare non potest: nam et inutile est pupillis, si administratio eorum non servatur, nemine scilicet emente. nec interest, tutor solvendo fuerit nec ne, cum, si bona fide res gesta sit, servanda sit, si mala fide, alienatio non valet.
What has been done in good faith by a tutor is held ratified, even by the rescripts of Trajan and Hadrian: and therefore a ward cannot vindicate a thing lawfully alienated by the tutor; for it is also useless to wards if their administration is not maintained, evidently with no one buying. Nor does it matter whether the tutor was solvent or not, since, if the matter was done in good faith, it must be upheld; if in bad faith, the alienation is not valid.
Cum tutor non rebus dumtaxat, sed etiam moribus pupilli praeponatur, imprimis mercedes praeceptoribus, non quas minimas poterit, sed pro facultate patrimonii, pro dignitate natalium constituet, alimenta servis libertisque, nonnumquam etiam exteris, si hoc pupillo expediet, praestabit, sollemnia munera parentibus cognatisque mittet. sed non dabit dotem sorori alio patre natae, etiamsi aliter ea nubere non potuit: nam etsi honeste, ex liberalitate tamen fit, quae servanda arbitrio pupilli est.
Since a guardian is set over not only the ward’s affairs but also his morals, in the first place he will fix the fees for preceptors, not the least he can, but according to the capacity of the patrimony and the dignity of birth; he will provide sustenance for slaves and freedmen, and sometimes even for outsiders, if this will be expedient for the ward; he will send customary gifts to parents and relatives. But he will not give a dowry to a sister born of another father, even if otherwise she could not marry: for although it is honorable, nevertheless it is an act of liberality, which must be reserved to the ward’s discretion.
In solvendis legatis et fideicommissis attendere debet tutor, ne cui non debitum solvat, nec nuptiale munus matri pupilli vel sorori mittere. aliud est, si matri forte aut sorori pupilli tutor ea quae ad victum necessaria sunt praestiterit, cum semet ipsa sustinere non possit: nam ratum id habendum est: nec enim eadem causa est eius, quod in eam rem impenditur et quod muneris legatorumve nomine erogatur.
In discharging legacies and fideicommissa the tutor must take care not to pay to anyone what is not owed, nor to send a nuptial gift to the ward’s mother or sister. It is otherwise if perhaps the tutor has provided to the ward’s mother or sister the things necessary for sustenance, when she cannot support herself: for that is to be held valid; for the cause is not the same in respect of what is expended for that purpose and what is disbursed under the name of a gift or of legacies.
Si tutor constitutus quos invenerit debitores non convenerit ac per hoc minus idonei efficiantur, vel intra sex primos menses pupillares pecunias non collocaverit, ipse in debitam pecuniam et in usuras eius pecuniae quam non faeneravit convenitur.
If an appointed tutor does not proceed against the debtors whom he has found, and through this they become less creditworthy, or if within the first six months he has not invested the ward’s monies, he himself is proceeded against for the money due and for the interest on that money which he did not put out at interest.
Cum quaeritur iudicio tutelae, quae nomina a tutore facta agnoscere pupillus debeat, Marcellus putabat, si tutor pecuniam pupilli mutuam dedisset et suo nomine stipulatus esset, posse dici nomina integra pupillo salva esse, deperdita et male contracta ad tutorem pertinere. sed verius se putare posse tutorem eam condicionem adulescenti deferre, ut id quod gessisset tutor in contrahendis nominibus aut in totum agnoscere aut a toto recedere, ita ut perinde esset ac si tutor sibi negotium gessisset. idem est et si pupilli nomine credidisset.
When it is inquired in the action of guardianship which claims (nomina) made by the guardian the ward ought to acknowledge, Marcellus thought that, if the guardian had lent the ward’s money and had stipulated in his own name, it could be said that intact claims remained safe to the ward, while those lost and badly contracted pertained to the guardian. But he more truly thinks that the guardian can tender this condition to the adolescent: that what the guardian has transacted in contracting the claims he either acknowledge in the whole or withdraw from in the whole, so that it would be just as if the guardian had conducted the business for himself. The same holds even if he had lent in the ward’s name.
Qui tutor negotia pupilli gessit, quamvis in nulla re auctor pupillo fuerit, quin tutelae iudicio teneatur, dubitari non oportet: quid enim prohibet ita patrimonium pupilli compositum esse, ut nihil gerere necesse sit, in quo tutoris auctoritas interponi debeat?
He who, as tutor, has managed the ward’s affairs, although in no matter he has furnished his authority to the ward, ought not to be doubted to be held by the action of guardianship; for what prevents the ward’s patrimony from being so composed that there is nothing that needs to be transacted in which the tutor’s authority must be interposed?
Lucius titius gaium seium filium familias testamento filio suo tutorem dedit: gaius seius sciente et consentiente patre tutelam administravit: quaero, an defuncto gaio seio actio tutelae adversus patrem eius et in quantum competat. Marcellus respondit secundum ea quae proposita essent actione de peculio et de in rem verso patrem teneri: nec multum videri in hoc casu facere patris scientiam et consensum ad obligandum eum in solidum, nisi forte contutore vel alio quo volente eum facere suspectum intercessit et quasi in se periculum recepit.
Lucius Titius appointed Gaius Seius, a son-in-power, as tutor for his son by testament; Gaius Seius, with his father knowing and consenting, administered the guardianship. I ask whether, Gaius Seius having died, an actio tutelae lies against his father, and to what extent. Marcellus responded that, according to the matters set forth, by the action de peculio and the action de in rem verso the father is held; nor does the father’s knowledge and consent seem in this case to do much to bind him in solidum, unless perhaps he interposed—at the wish of a co-tutor or of some other person wanting to have him made suspect—and, as it were, took the risk upon himself.
Vulgo observatur, ne tutor caveat ratam rem pupillum habiturum, quia rem in iudicium deducit. quid tamen si dubitetur, an tutor sit vel an duret tutor vel an gestus illi commissus sit? aequum est adversarium non decipi.
It is commonly observed that the tutor not furnish a caution that the pupil will have the matter ratified, because he brings the matter into judgment. But what if it is doubtful whether he is a tutor, or whether the tutorship endures, or whether the administration has been committed to him? It is equitable that the adversary not be deceived.
Decreto praetoris actor constitui periculo tutoris solet, quotiensque aut diffusa negotia sint aut dignitas vel aetas aut valetudo tutoris id postulet: si tamen nondum fari pupillus potest, ut procuratorem facere possit, aut absens sit, tunc actor necessario constituendus est.
By decree of the praetor an actor is usually appointed at the guardian’s risk, whenever either the affairs are extensive or the dignity, age, or health of the guardian requires it: if, however, the ward cannot yet speak, so as to appoint a procurator, or is absent, then an actor must necessarily be appointed.
Si minoris actum fuerit cum tutoribus adsistentibus curatoribus et pupillus ob hoc egerit cum curatoribus et ei sint condemnati in id quod sua intererat minoris tutores culpa eorum condemnatos non esse: an restitutio adversus tutores cesset? et papinianus responsorum libro secundo ait nihilo minus posse restitui et idcirco curatores, si nondum iudicatum fecerunt, posse provocantes per exceptionem doli consequi, ut eis mandentur adversus tutores actiones. quid tamen si iam fecerunt iudicatum curatores?
If a minor’s matter has been transacted with the tutors, the curators standing by, and on this account the ward has sued the curators and they have been condemned to him in the amount in which it was to his interest that the minor’s tutors were not condemned through their fault: does restitution (relief) against the tutors cease? And Papinian, in the second book of the Responses, says that nonetheless restoration can be granted; and therefore the curators, if they have not yet satisfied the judgment, can, when appealing, obtain through the exceptio of fraud that actions against the tutors be mandated to them. What, however, if the curators have already satisfied the judgment?
Tutor, qui post pubertatem pupilli negotiorum eius administratione abstinuit, usuras praestare non debet ex quo optulit pecuniam: quin etiam iustius mihi videtur eum per quem non stetit, quo minus conventus restitueret tutelam, ad praestationem usurarum non compelli. ulpianus notat: non sufficit optulisse, nisi et deposuit obsignatam tuto in loco,
The guardian, who after the ward’s puberty abstained from the administration of his affairs, ought not to pay interest from the time he offered the money: moreover, it seems more just to me that one by whose fault it did not stand, that, though convened, he should restore the guardianship, be not compelled to the payment of interest. ulpian notes: it does not suffice to have offered, unless he also deposited it, sealed, in a safe place,
Divi severus et antoninus augusti sergio iuliano. " forma, qua singuli tutores, prout quisque gessit tutelam, nonnunquam in solidum tenentur, dumtaxat intra pubertatis tempora locum habet, non etiam si post pubertatem administraverint".
The deified Severus and Antoninus, Augusti, to Sergius Julianus. "The form by which individual tutors, according as each has conducted the tutelage, are sometimes held liable for the whole (in solidum), has place only within the period before puberty, not also if they have administered after puberty."
Sine herede tutor decessit: quaero, an curator pupillo datus, cum neque inventaria neque alia instrumenta a fideiussore tutoris exhibeantur, possit eundem fideiussorem convenire ex stipulatione, quanti pupilli interest. modestinus respondit in id quod tutor conveniri potuit, fideiussorem quoque conveniri posse.
The tutor died without an heir: I ask whether a curator appointed for the ward, when neither inventories nor other instruments are produced by the tutor’s surety (fideiussor), can bring action against the same surety on the stipulation, for the amount of the ward’s interest. modestinus replied that to the extent the tutor could have been sued, the surety also can be sued.
Item respondit, si minus a servo tutor percepit, quam bona fide ex fundo percipi potuit, ex eo, de quo pupillae sit obstrictus, quantum ex peculio servi servari possit, eidem tutori proficere debere, scilicet si non perdituro servo administrationem credidit.
Likewise he answered, that if the tutor received from the slave less than could, in good faith, have been collected from the estate, then, from that in respect of which he is bound to the girl-ward, as much as can be preserved out of the slave’s peculium ought to accrue to that same tutor, namely, if he entrusted the administration to a slave not about to be lost.
Interposito curatore adulescens fundum titio vendidit: postea ^ posteo^ adgnita fraude in integrum restitutus in possessionem induci iussus est: quaero, an, cum ex hac venditione melior factus non est neque in rem suam quicquam versum probetur, pretium emptori restituere non debeat. modestinus respondit pretium fundi ab adulescente venumdati, si rationibus eius non profuit nec quicquam de eo a iudicante de in integrum restitutione statutum est, emptorem frustra postulare.
With a curator interposed, a youth sold a farm to Titius: afterwards ^ thereafter^, the fraud having been recognized, having been restored in integrum he was ordered to be put into possession: I ask whether, since from this sale he was not made better off nor is anything proved to have been turned to his own use, he ought not to restore the price to the buyer. Modestinus responded that the buyer demands in vain the price of the farm sold by the youth, if it did not profit his accounts and nothing concerning it was determined by the judge on the in integrum restitution.
Item respondit sumptibus voluptatis causa ab emptore factis adulescentem onerandum non esse: qui tamen ab eodem aedificio ita auferri possunt, ut in facie pristina, id est quae fuit ante venditionem, aedificium esse possit, emptori auferre permitti oportere.
Likewise he replied that a youth is not to be burdened with expenses made by the buyer for the sake of pleasure; yet those which can be removed from the building by the same person in such a way that the building can be in its pristine face, that is, as it was before the sale, ought to be permitted to the buyer to remove.
Lucius titius coheres et curator sororis suae, cum esset ex civitate, in qua usitatum erat ipsos dominos praediorum, non conductores onera annonarum et contributionum temporariarum sustinere, morem hunc et consuetudinem semper observatam secutus et ipse pro communi et individua hereditate annonas praestitit: quaero, an in rationibus dandis opponi curatori possit, quia non recte pro parte sororis tales impensas fecerat. modestinus respondit in id demum curatorem adultae reputare ex causa de qua quaeritur posse, quod ipsa, si rem suam administraret, erogare compelleretur.
Lucius Titius, coheir and curator of his sister, being from a city in which it was customary that the owners of the estates themselves, not the lessees, should bear the burdens of the annonae and of temporary contributions, following this usage and the custom always observed, himself paid the annonae for the common and undivided inheritance: I ask whether, in rendering accounts, this can be set against the curator, because he had not rightly made such expenditures for his sister’s share. Modestinus replied that the curator of an adult woman can be considered liable, in the matter about which inquiry is made, only to the extent to which she herself, if she were administering her own affair, would be compelled to disburse.
Tutores duo post venditionem pupillarium rerum factam pecuniam inter se diviserant, post quam divisionem alter eorum in exilium datus est durante tutela: quaerebatur, an actore constituto contutor eius partem pupillaris pecuniae petere ab eo poterit. modestinus respondit: si hoc quaeritur, an contutore relegato contutor eius tutelae actionem exercere possit, non posse respondi.
Two tutors, after a sale of the pupillary goods had been made, divided the money between themselves; after which division one of them was sent into exile while the tutelage was still ongoing. It was asked whether, with an actor appointed, his co-tutor could demand from him the share of the pupillary money. Modestinus replied: if the question is whether, the co-tutor having been relegated, his co-tutor can exercise the action of tutelage, I answered that he cannot.
Inter tutores divisa tutela est: aequitas, quae merum ius compensationis inducit, propter officium et personam agentis tutoris non differtur: nam divisio tutelae, quae non iuris, sed iurisdictionis est, modum administrationi facit et inter ipsos locum habet nec experiri cum pupillo volentibus obstare debet.
The tutelage is divided among the guardians: equity, which introduces the pure right of compensation, is not postponed on account of the office and the person of the acting guardian: for the division of tutelage, which is not of law but of jurisdiction, sets a limit to the administration and has place among themselves, nor ought it to obstruct those wishing to bring an action against the ward.
Secundum quam sententiam servus institor dominicae mercis vel praepositus debitis exigendis si liber factus in eodem actu perseveret, quamvis tempore servitutis obligari non potuerit, praeteriti temporis nomine actione negotiorum gestorum non inutiliter convenietur, earum scilicet rerum, quae conexam rationem cum his, quae postea gesta sunt, habuerunt: sic enim et tutelae iudicium earum quoque rerum causa tenere placuit, quae post pubertatem administrantur, si posterior actus priori cohaereat neque divisus propriam rationem habet.
According to this opinion, a slave who is an institor of the master’s merchandise, or one preposed to exacting debts, if, once made free, he perseveres in the same function, although during the time of slavery he could not have been bound, will not be ineffectually proceeded against by the action of negotiorum gestorum for the past period—namely, for those matters which had a connected rationale with those that were afterwards transacted; for thus it has been decided that the action of tutela likewise holds for the sake of those matters administered after puberty, if the later act coheres with the former and, if separated, does not have its own independent rationale.
Inde descendit quaestio, quae volgo circa filium familias tractata est, qui tutor testamento datus post tutelam gestam emancipatus in eodem officio perseveravit. et secundum sabini et cassii sententiam eveniet, ut de eo quidem, quod post emancipationem gestum est, in solidum conveniri possit, de praeterito autem, sive peculium non sit ademptum sive ademptum sit, in id quod facere possit. quod si superioris temporis nomine patrem de peculio pupillus convenire maluerit ( annus enim utilis ex quo tutela agi posse coepit computabitur): ne capiatur pater inducta totius temporis causa, tempus, quo filius familias tutelam gessit, comprehendendum erit.
From there descends the question, which has commonly been handled concerning a filius familias, who, appointed tutor by testament, after the tutelage had been carried on and having been emancipated, persevered in the same office. And according to the opinion of Sabinus and Cassius, it will result that, as to that which was done after emancipation, he can be sued in solidum; but as to what is past, whether the peculium has not been taken away or has been taken away, only to the extent that he can make good. But if the ward should prefer to convene the father de peculio for the earlier time ( for a useful year will be computed from the point when it became possible to bring an action on the tutelage): so that the father be not caught by the introduction of the cause of the whole time, the time during which the filius familias carried on the tutelage will have to be included.
Qui se negotiis impuberis non iure tutor datus secundum patris voluntatem immiscuit, errore comperto tutorem a praetore constitui consultius petet, ne forte, si rem coeptam deseruerit, fraudis vel culpae causa condemnetur. non idem servatur, si quis ultro negotium alienum gesserit, cum satis abundeque sufficiat vel in una specie per amici laborem domino consuli.
He who, not lawfully appointed tutor in accordance with the father’s will, has intermeddled in a minor’s affairs, when the mistake is discovered will more advisedly seek to have a tutor appointed by the praetor, lest perhaps, if he abandons the matter he has begun, he be condemned on a ground of fraud or fault. The same is not observed if someone of his own accord has managed another’s business, since it is sufficiently—and more than sufficiently—enough that even in a single instance the owner be provided for through a friend’s labor.
Heres institutus, qui non habuit substitutum, priusquam hereditatem adiret, quam impuberi restituere debuit, vita decessit: cum hereditas in italia esset, scriptus autem heres in provincia vita decessisset, tutores provincialium rerum culpae nomine condemnandos existimavi, si causam testamenti non ignorantes utilitatem impuberis deseruerunt: nam hereditatis in provincia fideicommisso restituto causam quidem iuris expediri potuisse, rerum autem administrationem ad eos recidere debuisse, qui tutelam in italia suscepissent.
The instituted heir, who had no substitute, before he entered upon the inheritance which he was bound to restore to the underage, departed this life: since the inheritance was in Italy, but the heir written in the will died in a province, I judged that the guardians of the provincial affairs should be condemned under the head of fault, if, not ignorant of the testamentary causa, they abandoned the utility of the underage: for, with the inheritance in the province restored by fideicommissum, the legal causa could indeed have been cleared, but the administration of the things ought to have fallen back to those who had undertaken the tutela in Italy.
Rerum provincialium tutores in urbe causas appellationis impuberum agentes, rerum italicarum curatores ut impuberibus constituantur, ad officium suum revocare debent: alioquin si prius in provinciam redierint, dolum aut culpam eorum in ea quoque parte recte iudex conveniet.
Guardians of provincial matters who, while in the City, are conducting appeal cases of minors, and curators of Italian matters who are there so that curators may be appointed for minors, ought to be called back to their own office; otherwise, if they have returned to the province first, the judge will rightly proceed against them for their fraud or fault also in that respect.
Patruus testamento fratris filio tutor datus cum in italia domicilium haberet, tam italicarum rerum quam provincialium administrationem suscepit atque ita pecuniam ex venditionibus romae refectam in provinciam traiecit et in calendarium pupilli convertit: tutor in locum eius romae substitutus administrationem pecuniae, quae non pertinet ad tutelam suam, suscipere non cogitur.
An uncle, appointed by the brother’s will as tutor to the son, since he had his domicile in Italy, undertook the administration both of Italian affairs and of provincial affairs, and thus money realized from sales at Rome he transferred into the province and converted into the ward’s account-book (calendarium): a tutor substituted at Rome in his place is not compelled to undertake the administration of money which does not pertain to his own tutelage.
Curatores testamento vel tutores inutiliter dati neque decreto praetoris confirmati negotia gesserunt. vice mutua periculum praestare coguntur, cum officium sponte citra iuris adminiculum iniverint et qui fuit idoneus, decretum praetoris curatores vel tutores constituentis implorare debuerit.
Curators appointed by testament or tutors ineffectually given and not confirmed by a praetor’s decree have managed the affairs. They are compelled to bear the risk reciprocally, since they entered upon the office of their own accord without the support of law, and the one who was suitable ought to have implored the praetor’s decree constituting curators or tutors.
In eum, qui tutelam gerere noluit, post ceteros qui gesserunt actionem utilem tutelae dari placuit. quod tamen ex tutela non pervenit ad eos, qui se negotiis miscuerunt, sed communi neglegentia perit, citra substitutionis ordinem aequaliter omnium periculum spectat.
Against him who was unwilling to administer the guardianship, after the others who did administer it, it has been decided that a useful action of guardianship be granted. What, however, from the guardianship has not come to those who involved themselves in the business, but has perished through common negligence, regards the peril of all equally, disregarding the order of substitution.
Adulescens tutoribus conventis, a quibus totum servari non potuit, adversus curatores, qui tutelam ad se neglegentia non transtulerunt, integram actionem retinet: neque enim tutelae iudicio consumptum videtur, quod alterius officii querellam habuit.
A youth, after convening his tutors, from whom the whole could not be preserved, retains an unimpaired action against the curators who, through negligence, did not have the guardianship transferred to themselves; for it is not thought to have been consumed by the guardianship action, since he had a complaint concerning another office.
Impuberi filio centurio curatorem dedit. decreto praetoris non secuto si nihil curator datus administret, periculo contumaciae vel neglegentiae non adstringetur: nam privilegium militum ad alienam iniuriam porrigi non oportet nec in aliis circa supremam voluntatem imperitiae venia datur quam in bonis militum, filii vero tutela iure patriae potestatis, non militiae praemio mandatur.
A centurion gave a curator to his underage son. If no decree of the praetor followed, then, if the curator appointed administers nothing, he will not be bound by the peril of contumacy or negligence: for the privilege of soldiers ought not to be extended to another’s injury, nor in other matters concerning a last will is indulgence for inexperience granted, except in the goods of soldiers; but the wardship of a son is entrusted by the right of paternal power, not by a prerogative of military service.
Qui plures tutores habuit, unum, qui solvendo non fuit, rationem actus sui vetuit reddere. quoniam eius liberatio, quod ex tutela percepit aut dolo contraxit, non est relicta, contutores, qui suspectum facere neglexerunt, ex culpa recte conveniuntur: tutor enim legatarius ex culpa, quae testamento remissa est, non tenetur.
He who had several tutors forbade one, who was not solvent, to render an account of his administration. Since a release was not left to him for what he received from the tutelage or contracted by fraud, the co-tutors, who neglected to institute a proceeding of suspicion, are rightly sued on account of fault: for a tutor who is a legatee is not held for fault which has been remitted by the testament.
Qui, cum esset fratris sui filiae curator, quadringenta dotis nomine marito eius se daturum promisit: quaero, an succurrendum sit ei, cum postea aere alieno emergente supra vires patrimonii eius dos promissa sit, quoniam in instrumento ita scriptum sit " ille patruus et curator stipulanti spopondit". movet quaestionem, quod non ut de suo dotem daret, sed cum crederet rationem pupillarem sufficere, promisit. praeterea et illud hic potest tractari, ut, si sciens curator non sufficere promiserit, vel donasse videatur vel, quoniam dolo fecit, non illi succurratur. respondi: curator cum officium suum egressus sponte se obligaverit, non puto ei a praetore subveniri debere, non magis quam si creditori puellae pecuniam se daturum spopondisset: sed is de quo tractamus si non donandi animo, sed negotii gerendi causa dotem promisit, habet mulierem obligatam et poterit dici etiam manente matrimonio eam teneri ( quia habet dotem sic ut in collatione bonorum dicitur) vel certe post divortium ( sive exacta sit dos sive maneat nomen), quia potest efficere, ut ei accepto feratur.
He, when he was curator of his brother’s daughter, promised that he would give four hundred as a dowry to her husband: I ask whether he should be succored, since afterwards, with debt arising beyond the powers of her patrimony, the dowry was promised beyond means, because in the instrument it is written thus: “that uncle and curator promised to the stipulator.” The question is moved by the fact that he did not promise to give the dowry as from his own, but promised when he believed the ward’s account would suffice. Furthermore, this also can be treated here: that, if the curator, knowing it would not suffice, promised, either he may seem to have donated, or, since he acted in dolus, he is not to be succored. I answered: since the curator, having gone beyond his office, voluntarily obliged himself, I do not think he ought to be aided by the praetor, any more than if he had promised the girl’s creditor that he would give money: but the person of whom we are treating—if he promised the dowry not with an animus of donating, but for the sake of managing the business—has the woman obligated, and it can be said that even while the marriage endures she is held (because she has a dowry in such a way as is said in the collation of goods), or certainly after divorce (whether the dowry has been exacted or the claim remains), because he can bring it about that it is carried to her account as “received” (credited).
but if the woman cannot have her curator fulfill that which he promised to give in dowry beyond the powers of her patrimony, the curator is to be relieved, as to the excess, by way of exception; the woman, however, ought to put forth a caution (security) to her husband, to the effect that, if at any time, with the marriage subsisting, she becomes more wealthy, she preserves the remainder of the dowry for the husband.
Si pupillus alterum ex tutoribus post pubertatem liberasset, improbe alterum illius nomine conabitur interpellare. idemque dicemus in duobus magistratibus collegis, quorum alterum res publica convenit. sed haec in magistratibus tractavi, quasi duo rei eiusdem debiti essent omnimodo: quod non ita est.
If a pupil, after puberty, has released one of his tutors, he will improperly attempt to interpellate the other in that one’s name. And we will say the same in the case of two colleague magistrates, of whom the Republic sues one. But I have handled these matters in regard to magistrates as though the two were in every way defendants of the same debt—which is not so.
Lucius titius curator gaii seii tempore curae fundum cornelianum locavit sempronio, qui sempronius reliqua traxit: pupillus aetate probata eundem quondam colonum sempronium fecit procuratorem: quaero, an ex eo, quod ille ut procurator egit, omne debitum adulescens agnovisse videatur eoque nomine curatorem suum liberasset. paulus respondit non ex eo, quod adultus eum, qui praedia eius coluit, procuratorem habere voluit, debitum, quod ex conductione reliquatus est, adgnovisse eum videri.
Lucius Titius, curator of Gaius Seius, during the time of the curatorship leased the Cornelian estate to Sempronius, and Sempronius ran up arrears: the ward, his age having been verified, made that same Sempronius—formerly a tenant-farmer—his procurator. I ask whether from the fact that he acted as procurator the youth is to be seen as having acknowledged the whole debt and on that account as having released his curator. Paulus responded that not from the fact that, as an adult, he wished to have as procurator him who cultivated his lands, does he seem to have acknowledged the debt that was left outstanding from the lease.
Sempronii, qui ex pollicitatione debitor patriae suae exstiterat, bona res publica iussu praesidis possedit: quorum bonorum magistratus rei publicae tres curatores constituerunt, qui apud graecos epimelytai vocantur, qui postea inter se sine consensu rei publicae administrationem bonorum sempronii diviserunt: ex quibus quidam, cum reliqua traherent, idonei in ipso tempore administrationis esse desierunt: postea pupillus heres sempronii, qui abstentus erat, ab imperatore impetravit, ut bona paterna ei restituerentur: quaero, an ex bonis eorum, qui idonei sunt, indemnitati pupilli prospici debeat, cum individuum his officium curae a magistratibus iniunctum sit. paulus respondit, si pupillo in curatores bonorum actiones decerni placuerit, pro eius portione, qui idoneus non sit, magistratus conveniri oportere: alia enim causa est tutorum, alia eorum, qui rei publicae negotia administrant.
The goods of Sempronius, who by a pollicitatio had become a debtor to his commonwealth, were possessed by the commonwealth by order of the governor: and for these goods the magistrates of the commonwealth appointed three curators, who among the Greeks are called epimelytai, who later among themselves, without the consent of the commonwealth, divided the administration of Sempronius’s goods; of whom certain men, while they were dragging out the remainder, ceased to be fit/solvent at that very time of the administration. Afterwards the ward, the heir of Sempronius, who had abstained, obtained from the emperor that the paternal goods be restored to him. I ask whether, out of the goods of those who are solvent, provision ought to be made for the ward’s indemnity, since an indivisible office of care had been enjoined upon these men by the magistrates. Paul answered that, if it is decided to grant actions to the ward against the curators of the goods, then for the share of him who is not solvent the magistrates ought to be convened; for the case of tutors is one thing, that of those who administer the business of the commonwealth is another.
Quaesitum est, an eius pecuniae, qua tutor usus est, post finitam quoque tutelam in diem iudicii accepti easdem usuras praestare debeat. paulus respondit finita administratione eas usuras debere computari, quae in tutelae iudicio computantur.
It was asked whether, for the money which the tutor used, even after the guardianship has ended, he ought to pay the same interest up to the day when the action is accepted for judgment. paulus replied that, once the administration is finished, the interest to be computed is that which is computed in the guardianship action.
Tutelae iudicio tutor conventus edidit librum rationum et secundum eum condemnatus solvit: postea cum a debitoribus paternis, quorum nomina libro rationum non inerant, exigere vellet pupillus, prolatae sunt ab his apochae tutoris: quaesitum est, utrum adversus tutorem an adversus debitores actio ei competat. paulus respondit, si tempore administrandae tutelae tutori tutelam gerenti debitores solvissent, liberatos eos ipso iure a pupillo: sed si cum tutore actum esset, posse eundem adulescentem propter eam causam tutelae experiri et adversus exceptionem rei iudicatae doli mali uti replicatione.
In a guardianship action the guardian, having been sued, produced a book of accounts and, having been condemned in accordance with it, paid: afterwards, when the ward wished to exact from his father’s debtors, whose names were not contained in the book of accounts, receipts of the guardian were produced by them: it was asked whether an action lies for him against the guardian or against the debtors. paulus responded that, if at the time of the administration of the guardianship the debtors had paid the guardian while he was conducting the guardianship, they were ipso iure released as against the ward: but if the suit had been with the guardian, that same youth can for that cause bring the action of guardianship and, against the exception of res judicata, employ the replication of fraud (doli mali).
Cum testamento duo tutores dati essent pupillo et alter ex his vita defunctus fuisset, in locum eius petente matre ex praesidis provinciae praecepto a magistratibus alius tutor datus est, a quo magistratus satis exegerunt rem salvam fore: tutor testamento datus postea datum suspectum fecit: quaesitum est, in quantum teneatur. paulus respondit tutorem testamento datum pro ea parte conveniri oportere, pro qua parte administravit: pro contutoris autem portione prius eos conveniri debere, qui pro eo se obligaverunt vel magistratus qui eum dederunt: tunc si solidum pupillus consequi non potuerit, de officio contutoris quaerendum, an suspectum facere debuerit, praesertim cum suspectum quoque eum postulasse dicatur. alias quidem cum magistratus plures tutores dant, non prius ad eos reverti pupillus potest, quam omnes tutores excussi fuerint: in proposito cum unus a magistratibus datus proponeretur, non est visum prius collegam conveniendum, qui et suspectum fecit et testamento datus est, perindeque habendos singulos, ac si in partes dimidias tutores dati essent.
When by testament two tutors had been appointed for a ward and one of them had died, in his place, at the mother’s petition, by the precept of the governor of the province another tutor was given by the magistrates, from whom the magistrates exacted surety that the property would be kept safe; the tutor appointed by testament declared the one appointed thereafter suspect; the question was asked to what extent he is liable. Paulus replied that the tutor appointed by testament ought to be convened for that share in which he administered; but for the portion of the co‑tutor, those should first be convened who bound themselves on his behalf, or the magistrates who appointed him; then, if the ward cannot recover the whole (in solidum), inquiry must be made concerning the duty of the co‑tutor, whether he ought to have made him suspect, especially since he too is said to have petitioned that he be declared suspect. Otherwise indeed, when the magistrates appoint several tutors, the ward cannot have recourse to them before all the tutors have been proceeded against; in the case proposed, since one appointed by the magistrates was in question, it did not seem that his colleague, who both made him suspect and was appointed by testament, should first be convened, and the individuals are to be regarded just as if the tutors had been appointed in half shares.
Titium et maevium tutores quis dedit et cavit: boulomai kai parakalw pantas ginesvai meta tys maibiou tou adelfou mou gnwmys, kai dixa autou to ginomenon akuron estw. titius solus a debitoribus exegit: an liberati essent? respondi, si et administrationem maevio dedisset, non recte solutum.
Titius and maevius as guardians someone appointed and stipulated: "I wish and I urge that everything be done with the judgment of maevius, my brother, and, without him, what is done shall be void." titius alone collected from the debtors: were they released? I replied: if he had also conferred the administration upon maevius, it was not rightly paid.
Tutores dati ad res italicas instrumenta romae reppererunt debitorum provincialium, ut pecunia romae aut ubicumque petitum fuerit solvatur: quaero, cum neque debitores in italia essent neque eorum praedia, an haec exactio ad italicae rei tutores pertineat. respondi, si provincialis contractus esset, non pertinere, respicere tamen ad officium eorum, ne instrumentorum ignorantia contractus eos, ad quos administratio pertineret, lateret.
Tutors appointed for Italian affairs discovered at Rome the instruments of provincial debtors, providing that the money be paid at Rome or wherever it shall have been demanded. I ask, since neither the debtors were in Italy nor their estates, whether this collection pertains to the tutors of the Italian matter. I answered that, if it were a provincial contract, it does not pertain; nevertheless it has regard to their office, lest, through ignorance of the instruments, the contract be hidden from those to whom the administration would pertain.
Praefectus legionis ita testamento cavit: " volo, ut sit in arbitrio tutorum filii mei, si voluerint, huius summae uncias inferre usurarum nomine ita, ne nummi dispargantur"; quaero, si apparuerit pecunia faenerata a tutoribus, iudicio tutelae uncias usuras an vero eas quas stipulati sunt praestare debeant. respondi, si secundum voluntatem defuncti elegissent usurarum praestationem neque pupilli nomine in faenus dedissent, id praestatur, quod testator voluisset.
The prefect of a legion thus provided in his will: " I wish that it be in the discretion of my son’s tutors, if they should wish, to pay twelfths of this sum in the name of interest, in such a way that the coins not be scattered"; I ask, if money shall appear to have been lent at interest by the tutors, whether in the action of guardianship they ought to render the twelfths as interest, or rather those which they stipulated. I answered: if, according to the will of the deceased, they chose the performance of interest and did not lend at interest in the name of the ward, that is to be rendered which the testator had wished.
Lucius titius mutuam pecuniam a tutore accepit et rem hereditariam pignori ei dedit: post triennium iam puberibus his, quorum tutela administrata est, fisco bona defuncti adiudicata sunt, quia mortem eius heres non est ultus: quaeritur, an id nomen pupillus recusare possit. respondi secundum ea quae proponuntur id nomen ad onus tutorum non pertinere.
Lucius titius received money on loan from his tutor (guardian) and gave him an hereditary thing in pledge: after three years, when now of full age were those whose tutelage was administered, the goods of the deceased were adjudged to the fisc, because his heir did not avenge his death: it is asked whether the ward can refuse that claim. i answered that, according to the matters proposed, that claim does not pertain to the burden of the tutors.
Altero ex duobus fratribus sociis bonorum et negotiationis defuncto, herede filio, patruus tutor venditis omnibus communis negotiationis mercibus et sibi redemptis negotium suo nomine exercuit: quaesitum est, utrum compendium negotii an usuras pecuniae praestare debeat. respondi secundum ea quae proponuntur pupillo usuram, non compendium praestandum.
With one of two brothers, partners in assets and in business, having died, the son being heir, the paternal uncle, as tutor, after selling all the wares of the common business and purchasing them for himself, carried on the business in his own name: it was asked whether he ought to provide the profit of the business or the interest of the money. I responded, on the basis of what is set forth, that interest to the ward, not profit, must be rendered.
Inter bonorum ventrisque curatorem et inter curatorem furiosi itemque prodigi pupillive magna est differentia, quippe cum illis quidem plane rerum administratio, duobus autem superioribus sola custodia et rerum, quae deteriores futurae sunt, venditio committitur.
Between the curator of goods and the curator of the womb, and the curator of a madman and likewise of a prodigal or of a pupil, there is a great difference, since to the latter indeed the straightforward administration of the property is entrusted, but to the two former only custody and the sale of things which are going to become worse is committed.
Si duo pluresve tutores tutelam administrent, in fideiussorem quidem in solidum per quemlibet eorum committitur stipulatio: at si inter eos divisa sit tutela regionibus, quod plerumque fit, et alius urbica negotia, alius peregrina administraret, tunc ex substantia cuiusque rei aut committi contra fideiussorem stipulationem aut non committi dicemus: nam licet omnes tutores sint et tutelam gerant, tamen cum quis de ea re, quae extra suam regionem erit, experiri vel ad iudicium vocari coeperit, perinde non committitur stipulatio, atque si ei administratio tutelae permissa non esset: quantum enim facit in totum denegata, tantundem valet, si in ea re de qua agitur denegata sit.
If two or more guardians administer the guardianship, as to the surety the stipulation is indeed committed for the whole through any one of them; but if among them the guardianship is divided by regions—which very often happens—and one administers urban affairs, another foreign affairs, then according to the substance of each matter we shall say that the stipulation against the surety is either committed or not committed. For although all are guardians and conduct the guardianship, nevertheless when someone begins to bring an action or to be called to judgment concerning a matter that lies outside his own region, the stipulation is not committed, just as if the administration of the guardianship had not been entrusted to him; for just as much effect as a denial has when made for the whole, so much it avails if it has been denied in the very matter at issue.
Aemilius dexter magistratus sui tempore datis tutoribus cessaverat in exigenda satisdatione, deinde quibusdam excusatis a sequentibus magistratibus dexter tutor adsumptus fuerat: creatus conveniebatur in solidum duplici ratione, quod cum magistratus esset et tutores dedisset satisdationem non exegisset. ex diverso dictum est, licet satis exactum non esset, tamen in diem tutelae finitae idoneos fuisse tutores neque cessationem curatorum obesse tutoribus debere. pronuntiavit, si in diem finitae tutelae idonei permansissent tutores, licet et satis non esset exactum, curatorum esse periculum, si minus, tutorum et magistratuum: hoc est tunc esse periculum eius, qui suspectum non fecisset aut satis non exegisset, cum finita tutela non inveniretur idoneus fuisse.
Aemilius Dexter, in the time of his magistracy having appointed guardians, had been remiss in exacting satisdation; then, certain persons having been excused by the subsequent magistrates, Dexter himself had been taken on as tutor: once appointed, he was sued in solidum on a double ground, namely that, when he was magistrate and had assigned guardians, he had not exacted satisdation. On the other hand it was said that, although security had not been exacted, nevertheless up to the day the guardianship ended the guardians had been suitable, nor ought the cessation of the curators to prejudice the guardians. He ruled that, if up to the day the guardianship ended the guardians had remained suitable, although even then security had not been exacted, the risk was that of the curators; if not, that of the guardians and the magistrates: that is, then the risk is his who had not brought a charge of suspicion or had not exacted satisdation, when at the end of the guardianship it would not be found that he had been suitable.
Non existimo maximis usuris subiciendum eum, qui a contutoribus suis mutuam pecuniam pupilli accepit et cavit certasque usuras promisit, quas et alii debitores pupillo dependunt, quia hic sibi non consumpsit nec clam nec quasi sua pecunia licenter abutitur et, nisi his usuris a contutore mutuum ei daretur, aliunde accepisset: et multum refert, palam aperteque debitorem se ut extraneum et quemlibet faceret pupillo an sub administratione tutelae pupillique utilitate latente sua commoda pupilli pecunia iuvaret.
I do not think he should be subjected to the highest usury, who received from his co-guardians the ward’s money as a loan and gave security and promised fixed interest, which other debtors also pay to the ward; for he did not consume it for himself, nor does he secretly, nor as if it were his own money, licentiously abuse it; and, unless a loan at this rate of interest were given to him by a co-guardian, he would have obtained it from elsewhere. And it makes a great difference whether he openly and plainly made himself a debtor to the ward as an outsider and as any person whatever, or whether, under the administration of the tutelage and with the ward’s utility lying hidden, he was aiding his own advantages with the ward’s money.
Tres tutores pupillo dati sunt, unus tutelam gessit et solvendo non est, secundus titio gerendam mandavit et titius quaedam administravit, tertius nihil omnino gessit: quaesitum est, quatenus quisque eorum teneatur. et tutorum quidem periculum commune est in administratione tutelae et in solidum universi tenentur. plane si pecunia numerata pupilli inter eos distributa est, non in maiorem summam quisque eorum quam accepit tenetur.
Three tutors were given to a pupil: one conducted the tutelage and is not solvent; the second mandated that it be managed by Titius, and Titius administered certain matters; the third did nothing at all: the question was raised, to what extent each of them is bound. And indeed, the risk of the tutors is common in the administration of the tutelage, and all of them are liable in solidum. Clearly, if the pupil’s ready money, counted out, has been distributed among them, each of them is not held for a greater sum than he received.
Sed si ipsi tutores rem pupilli furati sunt, videamus, an ea actione, quae proponitur ex lege duodecim tabularum adversus tutorem in duplum, singuli in solidum teneantur et, quamvis unus duplum praestiterit, nihilo minus etiam alii teneantur: nam in aliis furibus eiusdem rei pluribus non est propterea ceteris poenae deprecatio, quod ab uno iam exacta est. sed tutores propter admissam administrationem non tam invito domino contrectare eam videntur quam perfide agere: nemo denique dicet unum tutorem et duplum hac actione praestare et quasi specie condictionis aut ipsam rem aut eius aestimationem.
But if the tutors themselves have stolen the pupil’s property, let us consider whether, by that action which is proposed from the Law of the Twelve Tables against a tutor for double, each is held in solidum, and, although one has paid the double, nonetheless the others also are held: for in the case of other thieves, there being several of the same thing, there is not on that account a remission of the penalty for the rest, because it has already been exacted from one. But tutors, on account of the administration undertaken, seem not so much to be handling it against the owner’s will as to be acting perfidiously: no one, finally, will say that one tutor both should pay the double by this action and, as it were under a kind of condiction, either the thing itself or its valuation.
Non solum ergo gessisse tutelam is creditur, qui alii gerendam mandavit, sed et qui satis a contutore accepit rem salvam pupillo futuram eique permisit administrationem totius tutelae, nec potest se defendere constitutionibus, quae iubent ante conveniri eum qui gessit.
Therefore, not only is he deemed to have administered the guardianship who entrusted it to another to be managed, but also he who received sufficient surety from a co‑guardian that the property would be safe for the ward and permitted him the administration of the whole guardianship; nor can he defend himself by the constitutions which order that the one who administered be proceeded against first.
Item in eo quod nemo gessit non utique eius periculum est, qui quaedam gessit, sed communiter omnium: exigi autem ab eo solo periculum ob alia quae non gessit non oportet, nisi si qua talia sunt, quae vel consummationem coeptorum ab eo desiderabant vel ita coniuncta fuerunt, ut separari non debuerunt.
Likewise, as to that which no one managed, the peril is assuredly not his who managed certain things, but is common to all; moreover, the peril ought not to be exacted from him alone on account of other things which he did not manage, unless there are some such things which either required from him the consummation of the undertakings begun or were so conjoined that they ought not to have been separated.
Quod autem dicitur desisse solvendo esse vel non esse contutores praestare debere, videamus, qualem intellectum habet, id est utrum sufficit nihil deminutum esse de facultatibus contutoris, ex quo tempore datus est, sed eandem faciem patrimonii permansisse, an, etsi nihil post accidit, quod palam faciat deminutionem patrimonii, debet tamen contutor inquirere fortunas contutoris. sed hoc et ex personae qualitate et ex temporis intercapedine, quo testamentum factum est, usque ad mortem patris aliam aestimationem accipere debet: nam aperte prodigo vel cuius bona venierunt ( licet obreptum fuerit praetori, qui decreto eum dedit) permittere contutori administrationem non debet, et potuit aliquid pater eorum post testamentum factum accidens ignorasse aut, cum destinatum haberet mutare testamentum, id non fecisse.
But as to what is said, that co-guardians ought to make good for a man’s having ceased to be solvent or for his not being so, let us see what sense it has: that is, whether it suffices that nothing has been diminished from the co-guardian’s resources from the time he was appointed, but the same aspect of his patrimony has remained; or, even if nothing afterwards has occurred to make a diminution of the patrimony manifest, nevertheless the co-guardian ought to inquire into the fortunes of his fellow co-guardian. But this ought to receive a different evaluation both from the quality of the person and from the interval of time from when the testament was made up to the father’s death: for to one who is openly a prodigal or one whose goods have been sold ( although the praetor, who by decree appointed him, was imposed upon) one ought not to allow the administration to the co-guardian; and the father of them could have been ignorant of something that befell after the testament was made, or, although he had it destined to change the testament, did not do so.
Tutor rerum et animalium pupilli venditionem fecit, sed quaedam animalia emptoribus pretium non solventibus retinuit et apud se habuit, pretium idem rationibus pupilli accepto tulit: ex his aliquot nata sunt: defuncto tutore heres eius eandem tutelam administravit et animalia annis plurimis possedit: quaesitum est, an, cum is cuius tutela administrata est annis viginti quattuor esset, iure animalia vindicaret. respondit secundum ea quae proponerentur pupillum ea vindicare non posse.
The tutor (guardian) made a sale of the ward’s goods and animals, but, as the buyers did not pay the price, he retained certain animals and kept them with himself; he credited the same price as received in the ward’s accounts. Of these, several offspring were born. The tutor having died, his heir administered the same tutelage and possessed the animals for very many years. It was asked whether, when he whose tutelage was administered was twenty-four years old, he would by right vindicate the animals. He responded that, according to the matters proposed, the ward could not vindicate them.
Chirographis debitorum incendio exustis cum ex inventario tutores convenire eos possent ad solvendam pecuniam aut novationem faciendam cogere, cum idem circa priores debitores propter eundem casum fecissent, id omisissent circa debitores pupillorum, an, si quid propter hanc cessationem eorum pupilli damnum contraxerunt, iudicio tutelae consequantur? respondit, si adprobatum fuerit eos tutores hoc per dolum vel culpam praetermisisse, praestari ab his hoc debere.
With the chirographs of the debtors burned by a fire, since from the inventory the guardians could sue them to compel payment of the money or to effect a novation, and since they had done the same regarding prior debtors on account of the same occurrence, but had omitted this regarding the debtors of the wards, whether, if by reason of this their cessation the wards have incurred any loss, they obtain it by the action of guardianship? He responded: if it is proved that the guardians passed this over through fraud or fault, this must be made good by them.
Ab eo, qui sententia praesidis bonis ademptis relegatus erat, cum ex permissu principis appellatio eius recepta sit, quam is qui pronuntiaverat non receperat, fundum emerat pupillus intervenientibus tutoribus et appellatione iniusta pronuntiata fundus ei ablatus est: quaesitum est, an tutelae iudicio pretium fundi pupillus consequi a tutoribus possit. respondit, si scientes emerunt ab eo, qui in ea causa esset, ut obnoxius sententiae priori esset, tutelae iudicio eos teneri.
From him who, by the governor’s sentence, with his goods taken away, had been relegated—although by the emperor’s permission his appeal was admitted, which the one who had pronounced the sentence had not admitted—a ward, the guardians intervening, bought an estate, and, the appeal having been pronounced unjust, the estate was taken from him: it was asked whether, by an action of guardianship, the ward could recover from the guardians the price of the estate. He answered: if they knowingly bought from one who was in such a condition as to be subject to the prior sentence, they are liable in an action of guardianship.
Qui negotiationem per pamphilum et diphilum prius servos, postea libertos exercebat, suo testamento eos tutores reliquit et cavit, ut negotium eodem more exerceretur, quo se vivo exercebatur: hique tutelam administraverunt non tantum, cum impubes patroni filius fuisset, sed etiam post pubertatem eius. sed diphilus quidem cum incremento negotiationis rationes optulit, pamphilus autem putavit reddere oportere non ad incrementum negotiationis, sed ad computationem usurarum, ut in tutelae iudicio solet. quaesitum est, an secundum voluntatem defuncti exemplo diphili pamphilus quoque rationem reddere debeat.
He who was conducting a commercial enterprise through pamphilus and diphilus, formerly slaves, afterward freedmen, by his will left them as guardians and stipulated that the business be conducted in the same manner as it was conducted while he was alive: and these administered the guardianship not only when the patron’s son was underage, but also after his puberty. But diphilus indeed submitted accounts including the increase of the business, whereas pamphilus thought he ought to render not with respect to the increase of the business, but with a computation of interest, as is customary in an action on guardianship. The question was asked whether, according to the intention of the deceased, following the example of diphilus, pamphilus also ought to render an account.
Ex duobus tutoribus pupilli altero defuncto adhuc impubere pupillo, qui supererat ex persona pupilli sui iudice accepto consecutus est cum usuris, quantum ex tutela ad tutorem defunctum pervenerat: quaesitum est, iudicio tutelae, quo experitur pubes factus, utrum eius tantum portionis, quae ab initio quod ex tutelae ratione pervenerat ad defunctum contutorem, usurae veniant, an etiam eius summae, quae ex sortis usuris pupillo aucta post mortem eius ad superstitem aeque cum sorte translata sit aut transferri debuit. respondit, si eam pecuniam in se vertisset, omnium pecuniarum usuras praestandas: quod si pecunia mansisset in rationibus pupilli, praestandum, quod bona fide percepisset aut percipere potuisset, sed, faenori dare cum potuisset, neglexisset, cum id, quod ab alio debitore nomine usurarum cum sorte datur, ei qui accipit totum sortis vice fungitur vel fungi debet.
Of the two guardians of a ward, one having died while the ward was still underage, the survivor, acting in the person of his ward, after a judge had been appointed, recovered with interest as much as had come from the guardianship into the hands of the deceased guardian. It was asked, in the action of guardianship, by which he proceeds once he has become of age, whether interest is to accrue only on that portion which from the beginning, by reason of the guardianship, had come to the deceased co‑guardian, or also on that sum which, increased to the ward by interest on the principal after his death, was transferred or ought to have been transferred to the survivor along with the principal. He responded: if he had turned that money to his own use, interest on all the monies must be paid; but if the money had remained in the ward’s accounts, he must render what he had in good faith received or could have received, but neglected to lend at interest when he could have done so, since that which is given by another debtor under the name of interest together with the principal, for him who receives it functions wholly in the place of principal, or ought to function.
Testamento dati tutores, quod ruptum videbatur, cessaverunt in administratione tutelae et a praeside tutor datus est pupillo, iussi autem sunt etiam hi, qui dati erant testamento tutores, tutelam administrare coniuncto eo, qui a praeside datus coeperat administrare: quaesitum est, ex testamento datos periculum antecedentis temporis administrationis utrum ex apertis tabulis, an ex quo iussi sunt, pertineat ad eos. respondit ad eos de quibus quaereretur nullum antecedentis temporis periculum pertinere.
The tutors appointed by a testament, which seemed to be invalid, refrained from the administration of the guardianship, and a tutor was appointed by the governor for the ward; but those also who had been given as tutors by the testament were ordered to administer the guardianship in conjunction with him who, having been appointed by the governor, had begun to administer. It was asked whether, for those appointed under the testament, the liability for the prior period of administration pertains to them from the opening of the tablets, or from the time when they were ordered. He responded that, as to those about whom inquiry was made, no liability for the antecedent time pertains to them.
Pupillo herede instituto filiae exheredatae duo milia nummorum aureorum legavit eosdemque tutores utrisque dedit: quaesitum est, an ex eo die, quo duo milia potuerunt a substantia hereditatis et in nomina collocare neglexerint, usurarum nomine pupillae tutelae iudicio teneantur. respondit teneri.
With a pupil instituted as heir, he bequeathed two thousand gold coins to his disinherited daughter and assigned the same tutors to both; the question was raised whether, from the day on which the two thousand could have been detached from the substance of the inheritance and invested in credits, which they neglected to do, they are to be held, by the action of guardianship, liable to the girl by way of interest. He replied that they are liable.
Quaesitum est, an usurae pupillaris pecuniae, quas tutores debuerunt, cum ad curatorem transferuntur, in sortem computantur et universae summae usuras debere curatores incipiant. respondit omnis pecuniae, quae ad curatores transit, parem causam esse, quia omnis sors efficitur.
It was asked whether the interest on a ward’s money, which the guardians had owed, when it is transferred to a curator, is computed into the principal, and whether the curators begin to owe interest on the whole sum. He answered that all money which passes to curators is in the same position, because all is made principal.
Cum hereditas patris aere alieno gravaretur et res in eo statu videretur, ut pupilla ab hereditate paterna abstineretur, unus ex tutoribus cum plerisque creditoribus ita decidit, ut certa crediti portione contenti essent acciperentque: idem curatores iam viripotenti accepti cum plerisque creditoribus deciderunt: quaesitum est, an, si aliquis tutorum creditor patris pupillae solidam pecuniam expensam sibi ex re pupillae cum usuris fecerit, revocari a curatoribus pupillae ad portiones eas possit, quas ceteri quoque creditores acceperunt. respondit eum tutorem, qui ceteros ad portionem vocaret, eadem parte contentum esse debere.
When the inheritance of the father was burdened with debt and the situation seemed to be such that the girl-ward would abstain from the paternal inheritance, one of the tutors, with most of the creditors, settled on terms that, content with a fixed portion of their claim, they should accept; the same curators, appointed for her now of marriageable age, settled with most of the creditors. It was asked whether, if any of the tutors, being a creditor of the ward’s father, has made for himself, from the ward’s property, the whole sum as entered paid with interest, he can be recalled by the curators of the ward to those portions which the other creditors also received. He answered that that tutor, who calls the others to a portion, ought to be content with the same share.
Apud aristonem ita scriptum est: quod culpa tutoris pupillus ex hereditate desiit possidere, eius aestimatio in petitione hereditatis sine ulla dubitatione fieri debebit ita, si pupillo de hereditate cautum sit: cautum autem esse videtur etiam si tutor erit idoneus, a quo servari possit id, quod pupillus ex litis aestimatione subierit. sed si tutor solvendo non est, videndum erit, utrum calamitas pupilli an detrimentum petitoris esse debeat perindeque haberi debet, ac si res fortuito casu interisset, similiter atque ipse pupillus expers culpae quid ex hereditate deminuisset corrupisset perdidisset. de possessore quoque furioso quaeri potest, si quid ne in rerum natura esset, per furorem eius accidisset.
In Aristo it is written thus: because by the fault of the tutor/guardian the ward ceased to possess something from the inheritance, its valuation in the petition for the inheritance must, without any doubt, be made, provided that security has been taken for the ward concerning the inheritance; and it is considered to have been secured even if the tutor will be suitable, by whom that which the ward has undergone from the valuation of the suit can be preserved/made good. But if the tutor is not solvent, it will have to be considered whether the misfortune should be the ward’s or the detriment the petitioner’s; and it ought to be treated just as if the thing had perished by fortuitous chance, similarly as if the ward himself, free of fault, had diminished, spoiled, or lost something from the inheritance. Concerning a possessor too who is insane, the question can be raised, if anything had happened through his madness such that it was no longer in the realm of things.
since otherwise one will be able to say more elegantly that only the actions which the ward would have against the tutor are to be furnished to the seller of the inheritance, just as an heir or a possessor of the goods, if nothing has been done through his fault (for example, if he has been ejected by force from an hereditary farm, or an hereditary slave has been wounded by someone without the possessor’s fault), ought to furnish nothing more than the actions which he has under that title. the same is to be said also if through the curator of a madman something has been lost by fault or by fraud, just as if the tutor or curator had stipulated something or had sold an hereditary thing. but I think it should be allowed without penalty, what has happened through someone’s madness, in the same way as if by some chance it had happened without the act of a person.
Quamquam regula sit iuris civilis in rem suam auctorem tutorem fieri non posse, tamen potest tutor proprii sui debitoris hereditatem adeunti pupillo auctoritatem accommodare, quamvis per hoc debitor eius efficiatur: prima enim ratio auctoritatis ea est, ut heres fiat, per consequentias contingit, ut debitum subeat. se tamen auctore ab eo stipulari non potest. et cum quidam auctoritatem accommodaret pupillae suae, ut servo suo stipulanti sponderet, divus pius antoninus rescripsit iure pupillam non teneri, sed in quantum locupletior facta est, dandam actionem.
Although it is a rule of civil law that a tutor cannot become an auctor in his own matter, nevertheless a tutor can lend his authority to a ward who is entering upon the inheritance of the tutor’s own debtor, although by this the ward becomes his debtor: for the primary rationale of the authority is that he become heir; it is by consequentia that he assumes the debt. He cannot, however, with himself as auctor, stipulate from him. And when a certain man was lending authority to his female ward so that she might promise by sponsio to his own slave who was stipulating, the deified Antoninus Pius rescripted that the ward was not bound as a matter of law, but that an action should be granted to the extent that she was made more wealthy.
Etsi pluribus datis tutoribus unius auctoritas sufficiat, tamen si tutor auctoretur, cui administratio tutelae concessa non est, id ratum a praetore haberi non debet. et ideo puto verius esse, quod ofilio placebat, si eo tutore auctore, qui tutelam non gerat, emam a pupillo sciens alium eius tutelam gerere, dominum me non posse fieri: item si eo auctore emam, qui a tutela fuerit remotus: nec enim id ratum haberi.
Although when more tutors have been appointed the authority of one suffices, nevertheless, if a tutor gives authorization to whom the administration of the guardianship has not been granted, that ought not to be held ratified by the praetor. And therefore I think it truer, as pleased Ofilius, that if, with that tutor as authorizer who does not conduct the guardianship, I buy from the ward, knowing that another conducts his guardianship, I cannot become owner; likewise if I buy with as authorizer one who has been removed from the guardianship: for indeed that is not to be held ratified.
Pupillus obligari tutori eo auctore non potest. plane si plures sint tutores, quorum unius auctoritas sufficit, dicendum est altero auctore pupillum ei posse obligari, sive mutuam pecuniam ei det sive stipuletur ab eo. sed et cum solus sit tutor mutuam pecuniam pupillo dederit vel ab eo stipuletur, non erit obligatus tutori: naturaliter tamen obligabitur in quantum locupletior factus est: nam in pupillum non tantum tutori, verum cuivis actionem in quantum locupletior factus est dandam divus pius rescripsit.
A pupil cannot be obligated to his tutor with him as authorizer. Plainly, if there are several tutors, the authority of one of whom suffices, it must be said that with another as authorizer the pupil can be obligated to him, whether he gives him a loan of money or stipulates from him. But even when there is a single tutor, if he has given a loan of money to the pupil or stipulates from him, he will not be obligated to the tutor: nevertheless he will be naturally obligated to the extent that he has been made more wealthy: for the deified Pius wrote in a rescript that, against a pupil, an action is to be given not only to a tutor but to anyone, to the extent that he has been made more wealthy.
Item ipse tutor et emptoris et venditoris officio fungi non potest: sed enim si contutorem habeat, cuius auctoritas sufficit, procul dubio emere potest. sed si mala fide emptio intercesserit, nullius erit momenti ideoque nec usucapere potest. sane si suae aetatis factus comprobaverit emptionem, contractus valet.
Likewise, the guardian himself cannot discharge the office both of buyer and of seller; but if he has a co‑guardian whose authority suffices, beyond doubt he can buy. But if the purchase has taken place in bad faith, it will be of no moment, and therefore he cannot acquire by usucapion. Indeed, if, once he has come into his own age, he has ratified the purchase, the contract is valid.
Quod dicimus in rem suam auctoritatem accommodare tutorem non posse, totiens verum est, quotiens per semet vel subiectas sibi personas adquiritur ei stipulatio: ceterum negotium ei geri per consequentias, ut dictum est, nihil prohibet auctoritas.
What we say—that a tutor cannot accommodate his authority for his own interest—is true as often as a stipulation is acquired for him, whether through himself or through persons subject to him; however, as has been said, authority does not forbid the business to be transacted for him by way of consequences.
Si duo rei sint stipulandi et alter me auctore a pupillo stipuletur, alter altero tutore auctore, dicendum est stipulationem valere, sic tamen, si auctoritas tutoris unius sufficiat: ceterum si non sufficiat, dicendum erit inutilem esse stipulationem.
If there are two parties jointly stipulating, and one, with me as authorizer, stipulates from a ward, the other with the other tutor as authorizer, it must be said that the stipulation is valid, provided, however, that the authority of one tutor suffices: otherwise, if it does not suffice, it must be said that the stipulation is ineffective.
Obligari ex omni contractu pupillus sine tutoris auctoritate non potest: adquirere autem sibi stipulando et per traditionem accipiendo etiam sine tutoris auctoritate potest: sed credendo obligare sibi non potest, quia sine tutoris auctoritate nihil alienare potest.
A pupil cannot be obligated from any contract without the authority of his tutor; however, he can acquire for himself by stipulating and by receiving through tradition even without the tutor’s authority; but by giving credit he cannot create an obligation in his favor, because without the tutor’s authority he can alienate nothing.
Si ad pupillum aut furiosum bonorum possessio pertineat, expediendarum rerum gratia et in agnoscenda et in repudianda bonorum possessione voluntatem tutoris curatorisque spectari debere placuit: qui scilicet si quid eorum contra commodum pupilli furiosive fecerint, tutelae curationisve iudicio tenebuntur.
If the possession of the goods pertains to a ward or to a madman, for the sake of expediting matters it has been decided that, both in recognizing and in repudiating the possession of the goods, the will of the tutor and of the curator should be looked to: who, of course, if they do any of these things contrary to the interest of the ward or the madman, will be held liable by an action of guardianship or of curatorship.
Si servus communis tuus et titii a pupilla tua te auctore aliquam rem per traditionem acceperit, tota ad titium pertinebit. Marcellus notat: nam quodcumque ad omnes dominos non potest pertinere, id pro solido ad eum, cui adquiri potest, pertinere veteres comprobaverunt.
If a slave common to you and Titius, from your female ward, with you authorizing, should receive some thing through delivery, the whole will pertain to Titius. Marcellus notes: for whatever cannot pertain to all the owners, the ancients approved that it pertains in full (pro solido) to him to whom it can be acquired.
Impuberes tutore auctore obligantur, etiamsi taceant: nam cum pecuniam mutuam acceperint, quamvis nihil dicant, auctoritate tutoris interposita tenentur. quare et si non debita pecunia his personis soluta fuerit, quamvis tacuerint, interposita tutoris auctoritas sufficit, ut condictione teneantur.
Impubes are obligated with a tutor as authorizer, even if they keep silent: for when they have received money as a loan, although they say nothing, they are held, the authority of the tutor having been interposed. Therefore, even if money not owed has been paid to these persons, although they were silent, the authority of the tutor being interposed suffices, so that they are liable under a condictio.
Accipientis et edentis iudicium idem tutor auctor utrique fit. sed hoc utrum ita est, si bis auctor factus est, an et una auctoritas sufficiat eo animo, ut ad utrumque pertineat ? dubitat quidem pomponius, sed fortiter defenditur sufficere unam auctoritatem.
The same tutor becomes auctor for both the one who accepts the trial and the one who sets forth the trial. But is this so only if he has been made auctor twice, or does even a single auctoritas suffice, with the intention that it pertain to both ? Pomponius indeed is in doubt, but it is stoutly defended that a single auctoritas suffices.
Potest pupillus tutore auctore debitorem suum titio delegare: sed cum tutor debet pupillo, dicendum est neque delegari eum neque procuratorem adversus tutorem dari ipso tutore auctore posse, quia futurum sit, ut auctoritate sua liberetur.
A ward can, with the tutor authorizing, delegate his debtor to Titius; but when the tutor owes the ward, it must be said that neither can he be delegated, nor can a procurator be appointed against the tutor with the tutor himself authorizing, because it would come about that by his own authority he would be released.
Inter pupillos paternae hereditatis divisio facta est praesente tutore, sed non adsignante instrumento divisionis: quaesitum est, an ei stari oporteret. respondit, si tutor auctor fuisset, non idcirco minus standum esse divisioni, quod non adsignasset.
Among the wards a division of the paternal inheritance was made with the guardian present, but not signing the instrument of division: it was asked whether it ought to be stood by. he answered, if the guardian had given his authority, the division ought not on that account to be any the less stood by, because he had not signed.
Defendente tutore pupillus condemnatus ex contractu patris accepit curatorem, inter quem et creditorem acta facta sunt apud procuratorem caesaris infra scripta. priscus procurator caesaris dixit: " faciat iudicata". novellius curator dixit: " abstineo pupillum". priscus procurator caesaris dixit: " responsum habes: scis, quid agere debeas". quaesitum est, an secundum haec acta adulescens a bonis patris abstentus sit. respondit proponi abstentum.
with the tutor defending, the ward, condemned on the basis of his father’s contract, received a curator; between him and the creditor the proceedings written below were done before the procurator of caesar. priscus, procurator of caesar, said: "let him perform the things adjudged." novellius, the curator, said: "i abstain the ward." priscus, procurator of caesar, said: "you have an answer: you know what you ought to do." it was asked whether, according to these proceedings, the young man was kept from his father’s goods. he answered that he is put forward as abstained.
Si tutor vel curator pecunia eius, cuius negotia administrat, mutua data ipse stipulatus fuerit vel praedia in nomen suum emerit, utilis actio ei, cuius pecunia fuit, datur ad rem vindicandam vel mutuam pecuniam exigendam.
If a tutor or curator, using the money of the person whose affairs he administers, after giving it as a loan has taken the stipulation in his own name, or has purchased estates in his own name, a useful action is given to the one whose money it was, to vindicate the thing or to exact the money lent.
Dolus tutorum puero neque nocere neque prodesse debet: quod autem vulgo dicitur tutoris dolum pupillo non nocere, tunc verum est, cum ex illius fraude locupletior pupillus factus non est. quare merito sabinus tributoria actione pupillum conveniendum ex dolo tutoris existimavit, scilicet si per iniquam distributionem pupilli rationibus favit. quod in depositi quoque actione dicendum est, item hereditatis petitione, si modo, quod tutoris dolo desiit, pupilli rationibus illatum probetur.
The deceit of guardians ought neither to harm nor to benefit the boy: but what is commonly said, that a guardian’s deceit does not harm the ward, is true when the ward has not been made richer by that fraud. Therefore with good reason Sabinus thought that by the tributory action the ward should be sued on account of the guardian’s deceit, namely if through an inequitable distribution he has favored the ward’s accounts. The same must be said in the action of deposit, likewise in a claim to an inheritance, provided only that what, through the guardian’s deceit, has ceased to be pursued is proven to have been brought into the ward’s accounts.
Post mortem furiosi non dabitur in curatorem qui negotia gessit iudicati actio, non magis quam in tutores, si modo nullam ex consensu post depositum officium novationem factam et in curatorem vel tutorem obligationem esse translatam constabit.
After the death of the madman, an action on the judgment will not be granted against the curator who managed the affairs, any more than against the tutors, provided only that it is established that no novation by consent was made after the office was laid down and that the obligation was not transferred onto the curator or tutor.
Tutor, qui pecuniam se soluturum cavit, quam pater pupilli condemnatus fuerat, actionem post tutelam finitam recte recusat. non idem in eo placuit, qui suo nomine mutuam pecuniam accepit et iudicatum pro pupillo fecit, nisi forte creditor ideo contraxit, ut in causam iudicati pecunia transiret.
A tutor who gave security that he would pay the money for which the ward’s father had been condemned, after the guardianship is finished rightly refuses the action. The same was not approved in the case of one who, in his own name, received a loan of money and entered a iudicatum (judgment-bond) on behalf of the ward, unless perhaps the creditor for that reason contracted, so that the money would pass into a judgment-debt.
An autem apud legatum proconsulis suspectus postulari possit, dubium fuit: sed imperator antoninus cum divo severo braduae maurico proconsuli africae rescripsit posse, quia mandata iurisdictione officium ad eum totum iuris dicundi transit. ergo et si praetor mandet iurisdictionem, simili modo dicendum est suspectum posse apud eum postulari cui mandata est: cum enim sit in provincia hoc rescriptum, consequens erit dicere et eum, cui a praetore mandata est iurisdictio, posse de suspecto cognoscere.
But whether before the legate of the proconsul a challenge on suspicion can be moved was doubtful: but Emperor Antoninus, together with the deified Severus, wrote in reply to Bradua Mauricus, proconsul of Africa, that it can be, because when jurisdiction is mandated, the whole duty of saying the law passes to him. Therefore even if the praetor mandates jurisdiction, in like manner it must be said that a challenge on suspicion can be moved before him to whom it is mandated: for since this was written in a province, it will be consequent to say that he also, to whom jurisdiction has been mandated by the praetor, can take cognizance concerning the “suspect.”
Quin immo et mulieres admittuntur, sed hae solae, quae pietate necessitudinis ductae ad hoc procedunt, ut puta mater. nutrix quoque et avia possunt. potest et soror, nam in sorore et rescriptum exstat divi severi: et si qua alia mulier fuerit, cuius praetor perpensam pietatem intellexerit non sexus verecundiam egredientis, sed pietate productam non continere iniuriam pupillorum, admittet eam ad accusationem.
Nay rather, even women are admitted, but only those who, led by the piety of kinship, proceed to this, as for example a mother. A nurse too and a grandmother can. A sister also can, for in the case of a sister there exists also a rescript of the deified Severus; and if there shall be any other woman whose duly weighed piety the praetor shall have understood to be not that of one overstepping the modesty of her sex, but, brought forth by piety, not to put up with the injury to the wards, he will admit her to the accusation.
Tutor quoque contutorem potest suspectum facere, sive duret adhuc tutor, sive iam desierit ipse, contutor autem maneat tutor: et ita divus severus rescripsit. plus divus pius caecilio paetino rescripsit posse tutorem suspectum remotum contutores suos suspectos facere.
A tutor also can have a co-tutor declared suspect, whether the tutorship still endures, or he himself has already ceased, while the co-tutor remains tutor: and thus the deified Severus wrote in a rescript. More, the deified Pius wrote in a rescript to Caecilius Paetinus that a tutor removed as suspect can have his co-tutors declared suspect.
Liberti quoque pupillorum grate facient, si tutores vel curatores eorum male gerentes rem patronorum vel liberorum patronorum suspectos fecerint: sed si patronum suum ut suspectum in tutela facere velint, melius est libertos ab accusatione repelli, ne in ipsa cognitione gravius aliquid emergat, cum hoc aliis omnibus pateat.
The freedmen also of wards will act commendably if they render the tutors or curators of them, who are mismanaging the business of their patrons or of the patrons’ children, suspect; but if they wish to render their own patron suspect in a guardianship, it is better that the freedmen be repelled from the accusation, lest in the very inquiry something more grave should emerge, since this is open to all others.
Nunc videamus, ex quibus causis suspecti removeantur. et sciendum est aut ob dolum in tutela admissum suspectum licere postulare, si forte grassatus in tutela est aut sordide egit vel perniciose pupillo vel aliquid intercepit ex rebus pupillaribus iam tutor. quod si quid admisit, ante tamen admisit, quam tutor esset, quamvis in bonis pupilli vel in tutela, non potest suspectus tutor postulari, quia delictum tutelam praecessit.
Now let us see for what causes the suspected are to be removed. And it must be understood that it is permitted to petition that a tutor be declared suspect on account of dolus committed in the guardianship, if perchance he has run riot in the guardianship or has acted sordidly or perniciously to the ward, or has intercepted something from the ward’s property, after he was already tutor. But if he committed anything before he was a tutor, although it pertains to the ward’s goods or to the guardianship, a suspect tutor cannot be petitioned for, because the delict preceded the guardianship.
Quaeri potest, si tutor fuerit pupilli idemque sit curator confirmatus adulescenti, an possit ex delictis tutelae suspectus postulari. et cum possit tutelae a concuratoribus conveniri, consequens erit dicere cessare suspecti accusationem, quia tutelae agi possit deposito officio et alio sumpto.
It can be asked, if someone has been tutor of a pupillus and the same man is confirmed as curator for the adolescent, whether he can be demanded as suspected on account of delicts of the tutela. And since he can be convened on the tutela by the co‑curators, it will be consequent to say that the accusation of suspicion ceases, because the tutela action can be brought, the office having been laid down and another taken up.
Idem erit quaerendum et si proponas aliquem desisse esse tutorem et rursum coepisse ( ut puta usque ad tempus vel ad condicionem erat datus, deinde iterum vel superveniente condicione testamentaria vel etiam a praetore postea datus est), an suspectus postulari possit. et quia duae tutelae sunt, si est, qui eum tutelae iudicio conveniat, aequissimum erit dicere cessare crimen suspecti.
The same will have to be inquired also if you suppose someone to have ceased to be a guardian and then to have begun again (for instance, he had been appointed up to a time or upon a condition, then again, upon the supervening testamentary condition, or even later was appointed by the praetor), whether he can be petitioned as suspect. And because there are two guardianships, if there is someone who proceeds against him by the tutela action, it will be most equitable to say that the charge of being suspect ceases.
Si autem ipse tutor est solus, numquid, quia tutelae cessat, removendus sit ab hac administratione, quasi in hac suspectus ex eo, quod in alia male versatus sit? ergo et in eo, qui curator solus post finitam tutelam confirmatus est, idem dici potest.
If, however, the tutor himself is sole, is it the case that, because he ceases from the tutelage, he ought to be removed from this administration, as though in this he were suspect from the fact that in the other he has conducted himself badly? Therefore, even in the case of one who, as sole curator, has been confirmed after the tutelage has been finished, the same can be said.
Quod si quis ita tutor datus sit: " quoad in italia erit, tutor esto" vel " quoad trans mare non ierit", an possit suspectus postulari ex eo gestu, quem administravit, antequam trans mare abesset? et magis est, ut postulari possit, quasi una tutela sit habens intervalla.
But if someone has been appointed tutor in this way: " so long as he shall be in Italy, let him be tutor" or " so long as he shall not have gone across the sea," can he be petitioned as suspect on account of the management which he conducted before he was absent across the sea? And the sounder view is that he can be petitioned, as if it were a single guardianship having intervals.
Si quis afuturus rei publicae causa desideravit in locum suum constitui alium tutorem, an reversus ex ante gesto suspectus postulari possit? et quia potest ex priore gestu utili actione conveniri, cessabit postulatio.
If someone, about to be absent for the sake of the republic, desired that another tutor be appointed in his place, can he, upon his return, be petitioned against as suspect on account of what was managed before? And since he can be proceeded against by a useful action from the prior management, the petition will cease.
Si curator ventri bonisque datus fraudulenter versatus sit, deinde tutor datus, an postulari suspectus propter fraudes in cura admissas possit, dubitari potest. et si quidem habet contutores, non poterit postulari, quia conveniri potest, si non habet, amoveri potest.
If a curator for the womb and the goods has conducted himself fraudulently, and then a tutor is appointed, it may be doubted whether he can be challenged as suspect on account of the frauds admitted in the curatorship. And if indeed he has co-tutors, he cannot be petitioned against, because he can be sued; if he does not have them, he can be removed.
Sed si non latitet, sed praesens nihil posse decerni contendit quasi inopibus, si datis pupillo advocatis in mendacio revincatur, ad praefectum urbis remittendus est: neque enim interest id agere quemquam, ut corrupta fide inquisitionis tutor constituatur, an bona fide constitutum velut praedonem bonis alienis incumbere: hic ergo non quasi suspectus removebitur, sed remittetur puniendus ea poena, qua solent adfici, qui tutelam corruptis ministeriis praetoris redemerunt.
But if he does not lurk in hiding, but in person argues that nothing can be decreed on the plea of indigence, if, when advocates have been assigned to the ward, he is refuted and convicted of lying, he must be remitted to the Prefect of the City: for it makes no difference whether one contrives that a tutor be appointed by an inquiry whose good faith has been corrupted, or, though appointed in good faith, proceeds to bear down upon another’s goods like a brigand; therefore this man will not be removed as “suspect,” but will be sent back to be punished with that penalty with which those are regularly visited who have purchased a tutelage by the praetor’s corrupted ministries.
Qui pecuniam ad praediorum emptionem conferre neque pecuniam deponere pervicaciter perstant, quoad emptionis occasio inveniatur, vinculis publicis iubentur contineri, et insuper pro suspectis habentur. sed sciendum est non omnes hac severitate debere tractari, sed utique humiliores: ceterum eos, qui sunt in aliqua dignitate positi, non opinor vinculis publicis contineri oportere.
Those who persist pervicaciously in refusing either to contribute money for the purchase of estates or to deposit money until an opportunity for purchase is found, are ordered to be confined in public bonds, and moreover are held as suspect. But it must be known that not all ought to be treated with this severity, but certainly the more humble; however, those who are placed in some dignity, I do not think ought to be kept in public bonds.
Qui ob segnitiam vel rusticitatem inertiam simplicitatem vel ineptiam remotus sit, in hac causa est, ut integra existimatione tutela vel cura abeat. sed et si quis ob fraudem non removebit aliquem, sed ei adiunxerit, non erit famosus, quia non est abire tutela iussus.
One who has been removed on account of sloth or rusticity, inertia, simplicity, or ineptitude is in this case, that he departs from guardianship or curatorship with unimpaired reputation. But also, if someone, on account of fraud, does not remove a person, but has joined someone to him, he will not be infamous, because he has not been ordered to depart from the guardianship.
Suspectus fieri is quoque, qui satis dederit vel nunc offerat, potest: expedit enim pupillo rem suam salvam fore, quam tabulas rem salvam fore cautionis habere: nec ferendus est contutor, qui ideo collegam suum suspectum non fecit, quoniam cautum erat pupillo,
Even he too who has given security or now offers it can be made suspect: for it is expedient for the pupil to have his property safe, rather than to have deeds of security that the property will be safe; nor is the co‑tutor to be tolerated who for that reason did not make his colleague suspect, since security had been provided to the pupil,
Praeterea accesserunt quaedam species ex epistula imperatoris nostri et divi severi ad atrium clonium: nam adversus eos, qui, ne alimenta decernantur, sui copiam perseverant non facere, ut suis rebus careant praecipitur reique servandae causa pupillus in possessionem mittatur eius, qui suspectus sententia sua factus est quaeque mora deteriora futura sunt curatore dato distrahi iubentur.
Moreover, certain categories have been added from the epistle of our emperor and the deified Severus to the atrium clonium: for against those who, so that maintenance not be decreed, persist in not affording their own presence, it is prescribed that they go without their own goods; and for the sake of preserving the estate the ward is sent into possession of the one who has been made suspect by sentence; and such things as by delay would become worse are ordered to be sold, a curator being appointed.
Item si quis tutor datus non compareat, solet edictis evocari, novissimeque si copiam sui non fecerit, ut suspectus removeri ob hoc ipsum, quod copiam sui non fecit. quod et perraro et diligenti habita inquisitione faciendum est.
Likewise, if any tutor appointed does not appear, he is accustomed to be summoned by edicts; and ultimately, if he has not made himself available, he is to be removed as suspect for this very fact, that he did not make himself available. Which is to be done very rarely, and with a diligent inquiry having been held.
Si tutor aliquo vinculo necessitudinis vel adfinitatis pupillo coniunctus sit vel si patronus pupilli liberti tutelam gerit et quis eorum a tutela removendus videatur, optimum factum est curatorem ei potius adiungi quam eundem cum notata fide et existimatione removeri.
If a tutor is connected to the ward by some bond of relationship or affinity, or if the patron of the ward’s freedman is carrying the tutelage, and any of them seems to be removed from the tutelage, it has been judged best that a curator be added to him instead, rather than that the same person be removed with his good faith and reputation marked.