§ 105. power was vested in a single guardian, the liability attached, in the first instance, to the guardian who was empowered to act and was primarily answerable. The liability of the others was merely subsidiary. In addition to the liability of the guardians, a subsidiary liability also attached to the 'postulatores' ('nominatores'), or persons who proposed the guardian; to the 'affirmatores,' or persons who asserted the guardian's 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.

§ 106.

If the guardian converted any part of the ward's property to his own use, the ward's remedy was the actio rationibus distrahendis, an actio in duplum in which the ward claimed both damages and a penalty.

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

In the case of a cura, the remedies were the same as in a negotiorum gestio (supra, p. 427).

'Protutor' was the name given to a person who (whether he believed himself a guardian or not) had acted as a guardian without being one, or to a person who, being really a guardian, had acted as one without knowing it. The acts of a protutor gave rise to an actio protutelae directa and an actio protutelae contraria respectively.

L. 1 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.

§ 106. Termination of Guardianship.

Guardianship terminated (apart from the death or capitis deminutio of the guardian or ward), as a rule, ipso jure with the disappearance of the ground which had called it into existence, e. g. with the majority of a ward, or the recovery of a lunatic. The cura prodigi however could only be terminated by a magisterial decree

cancelling the guardianship on the ground of a return to prudent § 106. habits.

The termination .of a guardianship might also be due to the removal of the guardian by the state as guardian-in-chief. Where the removal took place on the ground of a so-called 'excusatio necessaria,' i. e. on the ground that the guardian was not fit to discharge his functions, it was a simple removal; where it took place on the ground that the guardian was suspected of misconduct, it was an ignominious removal and one which, in Roman law, entailed infamy, if occasioned by dolus. A removal of the latter kind was called a 'remotio suspecti tutoris.' Any one was entitled to bring the accusatio suspecti tutoris; the duty to bring it rested on the fellow-guardian.

A guardianship might, lastly, be terminated by the resignation of the guardian (abdicatio tutelae). The rules as to the resignation of guardianships were not the same in the classical law and in Justinian's law. In the former, a tutor testamentarius might resign his office at will. In the latter, the guardian was required in every case to assign a specific ground (such as poverty or deafness or blindness) for his wish to resign, and the magistrate had to decide as to the sufficiency of the ground assigned.

§ 107. The State as Guardian-in-Chief.

The state is guardian-in-chief in the sense that all other guardians § 107. are subject to its supervision and control. The beginnings of a system of state control over guardianships are clearly traceable in Roman law. Thus it was the business of the state to require the guardian, when entering on his duties, to give security against maladministration and to make an inventory of the property committed to his charge. In some cases, as we have seen (supra, p. 514), the guardian was appointed by the state; the sanction of the state was always necessary in order to validate any important alienation of the ward's property (p. 517); and in certain circumstances the state performed the office of removing a guardian or

§ 107. accepting his resignation. The functions of the state as guardianin-chief were considerably enlarged by the Common German Law, and the judicial department which, in these matters, represented the state (the 'Obervormundschaftsbehörde ') became the supreme authority for superintending and controlling the entire management of all guardianships. The German Civil Code has not altered the functions of the state in this respect.

CHAPTER II.

THE LAW OF INHERITANCE.

§ 108. Hereditary Succession; its Foundation and Conception.

THE fundamental idea which lies at the root both of proprietary § 108. rights and of proprietary liabilities, or 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 annexed. There are, it is true, certain relationships of private law-such as a usufruct or a penal liability for a delict-which are inseparable, by their very nature, from 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 recognized form of ownership. 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 after effects which the original conception of family ownership produced on private ownership are

108. clearly visible in the rights assigned to the family in the law of inheritance. The death of the individual does not remove the true owner of the property, because the family continues to exist. The individual holder of the property dies, but his family and, through it, his property survive him.

The title of the relatives of the deceased, and more especially of his own children, to succeed to his property on his death, is based on a rule of law, on a legal necessity, on the fact that, prior to his death, the relatives were co-owners of the property. In the course of time, however, the idea of private ownership was destined to prevail over the traditional conception of family ownership, and the individual was allowed, through the medium of a will, to assert his absolute right of disposition (i. e. his sole ownership) as against the family even after his death. In the earliest times there was only intestate succession. At a later period we find intestate opposed to testamentary succession. Nevertheless the associations of the old family ownership were still clearly traceable. The rights of certain very near relations were so strong that they survived the recognition of individual ownership. It came to be admitted, moreover, that the claims of a man's nearest relations were in a sense also the claims of the community, and that it was a matter of public concern that the nearest relations, who depended for their existence on the deceased, should not be deprived of his property without sufficient cause. The result of the working of these ideas was that, concurrently with the development of testamentary succession, another form of succession came into use, viz. a succession contrary to the will, a 'succession by necessity.' In the old law the rules concerning succession by necessity marked the limits within which the interests of the family continued to prevail over the interests of the individual. In the later law, as shaped by legislation, the rules concerning succession by necessity governed the entire field within which the interests of the family were regarded as identical with the interests of the state. Testators were 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,