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business belonging to the ward. The guardian is bound to do § 92. all acts of this kind, in order that the interests of the ward may be as efficiently attended to as though the ward were himself in a position to undertake the management of his property. A guardian, however, is only answerable for the diligentia quam suis rebus (sup. p. 319). As he does not undertake his office voluntarily, but in pursuance of a duty cast on him by the law, it is sufficient if, in guardianship matters, he shows the same degree of care as he does in his own. But if he should fall short of this standard, he is liable to the ward in damages. He would, of course, be equally liable if he were to make important dispositions of the ward's property without a magisterial decree, in other words, in excess of his powers, or if he were to misappropriate the ward's property or convert it to his own use, and so forth. And with a view to securing wards in their claims for damages against guardians, the latter are bound (except in certain specified cases), on entering on their guardianship, to give security for proper administration (rem pupilli salvam fore) by means of sureties or pledges. Under the law of the later empire the ward has even a statutory hypothec over the entire estate of his guardian.

On the termination of the guardianship, the guardian is moreover bound to render an account of his administration and to hand over the ward's property to the ward.

The remedy by which a ward can compel his guardian to a due performance of his duties is the actio tutelae directa, an action condemnation in which, according to Roman law, entails infamy (sup. p. 128). If there are several guardians, each of them is liable for the whole amount, i. e. their obligation is solidary (sup. p. 282, and n. 5 ibid.); but where the powers are divided, or where the entire power is vested in a single guardian, the liability attaches, in the first instance, to the guardian who was empowered to act and was primarily answerable. The liability of the others is merely subsidiary. In addition to the guardians themselves, a subsidiary liability also attaches to the 'postulatores' ('nominatores'), or persons who proposed the guardian; the 'affirmatores,' or persons

2 A guardian appointed by the ward's father or by a superior magistrate is not required to give such security.

§ 92. who asserted his fitness for the office, in the magisterial enquiry; and lastly to the magistrate himself—though in Roman law only to a magistratus minor, e. g. a municipal magistrate-who failed to exercise proper care in the appointment or supervision of the guardian.

$93.

If the guardian converts any of the ward's property to his own use, the remedy is by 'actio rationibus distrahendis,' which is an action in duplum, the ward claiming both damages and a penalty.

On the other hand, if the ward fails to recoup his guardian for disbursements, the guardian has the actio tutelae contraria.

In the case of a cura, the parties have the same remedies as they would have under a negotiorum gestio (v. sup. p. 318).

'Protutor' is the name given to a person who (whether he believed himself a guardian or not) has acted as a guardian without being one, or to a person who, being really a guardian, has acted as one without knowing it. The actions against and by a protutor are called the actio protutelae directa and contraria respectively.

L. I pr. D. de tut. (27, 3) (ULPIAN.): In omnibus quae fecit tutor, cum facere non deberet, item in his quae non fecit, rationem reddet hoc (tutelae) judicio, praestando dolum, culpam, et quantam in suis rebus diligentiam.

§ 93. Termination of Guardianship.

Guardianship terminates (apart from the death or capitis deminutio of guardian or ward), as a rule, ipso jure with the disappearance of the ground which called it into existence, e. g. with the majority of a ward, or the recovery of a lunatic; the cura prodigi however only terminates with a magisterial decree cancelling the guardianship on the ground of a return to prudent habits.

Guardianship may also be terminated through the removal of the guardian by the state as guardian-in-chief. Such a removal is either a simple one, i. e. it takes place on the ground that the guardian is not fit to discharge his functions (so-called 'excusatio necessaria'), or it is an ignominious one, entailing infamy in Roman law, if occasioned by dolus, i. e. it takes place on the ground that the guardian

is suspected of misconduct (so-called 'remotio suspecti tutoris '). § 93. Any one is entitled to make the accusatio suspecti tutoris; the duty to do so, rests on the fellow-guardian.

In the classical period a tutor testamentarius was permitted to resign his office at will (abdicatio tutelae), but in Justinian's law no resignation is allowed except on specific grounds, such as poverty, deafness, blindness, and subject to the discretion of the magistrate.

$94. The State as Guardian-in-Chief.

The state is guardian-in-chief in the sense that all other guardians § 94. are subject to its supervision and control. Already in Roman law we find that the state sees to the due installation of the guardian, to his giving the requisite security against maladministration, and to his causing an inventory of the guardianship property to be made. In some cases, as we have seen (sup. p. 400), the state appoints the guardian; its sanction is always necessary in order to validate any important alienation of the ward's property (p. 403); and in certain circumstances it performs the office of removing a guardian or accepting his resignation. The functions of the state as guardianin-chief have been considerably enlarged in the German Pandect law, and the judicial department which, in these matters, represents the state (the 'Obervormundschaftsbehörde') has been developed into a power superintending and controlling the entire management of all guardianships.

§ 95.

CHAPTER II.

THE LAW OF INHERITANCE.

§ 95. Hereditary Succession; its Foundation and Conception.

THE fundamental idea which lies at the root of proprietary rights and proprietary liabilities (obligations) is the idea of immortality. An owner may die, but his ownership survives him. A debtor may pass away, but his debt remains. In this respect the rights and duties of private law, on the one hand, differ from those of public and family law, on the other hand; for it is a principle of the rights and duties incident to public and family law that they perish with the person to whom they are attached. There are, it is true, certain private legal relations such as a usufruct or a penal liability for a delict--which, by their very nature, are bound up with a particular person, and which consequently perish with the death of that person. But the fundamental characteristic of a private right and a private liability, as such, is that they can survive their subject and can pass to a new subject. Property is not destroyed by the death of the proprietor.

And the reason is this. Though the individual may die, the family survives. In the oldest times the family is the sole owner; individual ownership is unknown and common ownership is the only recognised form. The common ownership of the family developed, in the course of time, into the common ownership of the community, on the one hand, and the private ownership of the individual, on the other. The rights given to the family in the law of inheritance testify to the influence of the original conception of family ownership on the law of private ownership. The death of the individual

does not remove the true owner of the property, because the family § 95. continues to exist. The individual holder of the property dies, but

his family survives him and, through it, his property.

The title of the relatives of the deceased, and more especially of his own children, to succeed him on his death, is based on a rule of law, on a legal necessity, on the fact that, prior to his death, they were co-owners of the property. In the course of time, however, the idea of private ownership was destined to outstrip the traditional conception of family ownership, and the individual was allowed, through the medium of a will, to realize his absolute right of disposition (i. e. his sole ownership) as against the family even after his death. In the earliest times there is only intestate succession. At a later period we find intestate opposed to testamentary succession. Nevertheless the associations of the old family ownership are still clearly traceable. The claims of certain very near relations are so strong that they survive the recognition of individual ownership. The view moreover asserts itself that the interests of a man's nearest relations are, in a sense, also the interests of the community; that it is a matter of public concern that the nearest relations, who depend for their existence on the deceased, should not be deprived of his property without sufficient cause. The result of the working of these ideas is that, concurrently with the development of testamentary succession, the view that there may be a succession contrary to the will, a 'succession by necessity,' gains acceptance. In the old law these rules concerning succession by necessity mark the limits within which the conception of family ownership continues to operate on that of individual ownership. In the later law, as shaped by legislation, the rules concerning succession by necessity govern the entire field within which the interests of the family are regarded as identical with the interests of the state. Testators are compelled, to some extent, to satisfy the just demands of their nearest relatives. Just as the rules of intestacy bear witness to the primeval rights of the family, and the rules of testamentary succession to those of the individual, so the rules on succession by necessity give expression to the coincidence, within certain limits, of the interests of the family with those of the state.

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