TUTELA IMPUBERUM. $63. CAPACITY FOR GUARDIANSHIP. EXCUSATIONES. As regards the capacity to undertake guardianship, the only requisites in ancient time, as long as guardianship was still a private right of the guardian, were possession of citizenship and belonging to the male sex; in case of individual incapacity to exercise guardianship (because of immature age, bodily defects, mental infirmity), the person appointed could decline it, and another guardian was appointed in his stead. Imp. Diocletian. In servili condicione constitutum tutorem vel curatorem dari non posse, nullam habet iuris dubitationem.-C. 5, 34, 7.1 Inst. i. 14 pr., § 1: Dari autem potest tutor Gai. Tutela virile officium est.-1. 16 pr., Nerat. Feminae tutores dari non possunt, Nov. 118, c. 5: Mulieres etiam nos tutelae munus subire prohibemus, nisi mater vel avia That a man placed in the condition of a slave cannot be appointed a tutor or curator admits of no doubt in Law. 2 As tutor can be appointed, not only a pat. fam., but a fil. fam. also. But one's own slave can be legally appointed tutor in the testament, with freedom. 3 Tutela is a service rendered by a male. • Women cannot be appointed tutors, because this is an office for males, save as they specially petition the Emperor for the tutela of their children. BOOK II. BOOK II. sit. His enim solis secundum hereditatis ordinem etiam tutelam subire permittimus, si apud acta et secundis nuptiis et beneficio. SC. Velleiani renuntiaverint.' Paul. Complura senatusconsulta facta sunt, ut in locum furiosi et muti et surdi tutoris alii tutores dentur.-1. 17, D. de tut.2 According to later and Justinianean Law, the following persons are absolutely incapable (a) impuberes and minores, (3) muti, surdi, furiosi, (y) soldiers, bishops and monks ; while incapable relatively werecreditors and debtors of the ward. Minores autem XXV annis olim quidem excusabantur: a nostra autem constitutione prohibentur ad tutelam vel curam adspirare, adeo ut nec excusatione opus fiat; qua constitutione cavetur, ut nec pupillus ad legitimam tutelam vocetur nec adultus, cum erat incivile eos, qui alieno auxilio in rebus suis administrandis egere noscuntur et sub aliis reguntur, aliorum tutelam vel curam subire.-§ 13, I. de excus. 1, 25.3 1 Women also we prohibit from undertaking the office of tutela, with the exception of the mother or grandmother. For it is these alone we allow, according to the order of succession, to undertake tutela, if in the course of the proceedings they shall renounce both a second marriage and the benefit of the SC. Velleianum. 2 Many Sca. have resulted from the purpose to appoint other tutors in the place of an insane, and dumb, and deaf tutor. 3 Those who were under 25 years of age were formerly able to decline; but since our constitution they are forbidden to aspire to a tutela or curatela, so that neither is the right to decline of any use. By this constitution it is provided that neither a ward nor a minor shall be called to a legal tutela, since it was subversive of law for persons who are known to need the 'help of another' in the conduct of their own affairs, and are under the control of others, to undertake tutela or curatela of others. A person capable of guardianship can decline it only BOOK II. upon grounds fixed by statute." These are the 'ex a Part I. Except, peralready tary tutors in official Law: Ulp. xi. haps, testamen the Classical cusationes tutorum,' which either absolve from the duty bb Vat. Fgm. 245: Qui complura allegant, quae singula non sint firma, interdum excusari solent. -(Paul.)1 Imp. Sever. Sed imperfectae diversae species vacationis, licet permixtae, ad excusationem non proficiunt. Scire igitur debes, eum qui duos filios habet et duas tutelas administrat, excusationem non mereri.-C. 5, 69 1. un.2 The 'excusatio' must be made good by petition at the right time, and allowed, otherwise the guardian is responsible for any delay in undertaking the office. Qui excusare se volunt, intra dies L continuos, ex quo cognoverunt, excusare se debent, ... si intra centesimum lapidem sunt ab eo loco, ubi tutores dati sunt: si vero ultra centesimum habitant, dinumeratione facta XX milium diurnorum et amplius XXX dierum; quod tamen, ut Scaevola dicebat, sic debet computari, ne minus sint quam quinquaginta dies.-§ 16, I. de excusat.3 1 They that set up several things which taken separately are inadequate can sometimes be excused. 2 But incomplete various grounds of release, although connected with one another, do not avail for excuse. You must therefore know that he who has two sons and exercises two guardianships has no claim for excuse. ... 3 Those desiring to decline. . . must decline during the period of fifty days, from the day when it came to their knowledge, if they are within one hundred miles of the place where they were appointed tutors; but if they reside further off than one See Inst. i. 25, I. BOOK II. l'art I. : Ulp. Tutor vel curator, cuius . . . excusatio recepta non sit, ex quo accedere ad administrationem debuit, erit obligatus.-D. 26, 7, 20.1 Earlier on the tutor nominated by the magistrate could be liberated also by potioris nominatio,' i.e., proof that some person was more closely related or was better fitted for the exercise of the guardianship; but this potioris nominatio-with, moreover, very lengthy procedure-disappeared in the later Law, after it had been materially circumscribed by Septimus Severus. Paul. ii. 28, 1: Non recte potiorem videtur nominare, qui causam nominati potioris non expresserit. Vat. fgm. 157: Tunc demum excusandus est, qui prius datus fuerat, si is, quem nominaverit, et potior necessitudine et idoneus re fideque nec absens deprehendatur.3 158 Pars orationis imperatoris Severi : Promiscua facultas potioris nominandi nisi intra certos fines cohibeatur, ipso tractu temporis pupillos fortunis suis privabit: cui rei obviam ibitur, patres conscripti, si censueritis, ut collegae patris vel pupilli in decuria vel corpore, item cognati vel adfines utriusque necessitudinis, qui lege Iulia et Papia excepti sunt, potiorem non nominent; ceteri cognati vel adfines amicive atque municipes eos tantummodo nominent, quos supra complexus hundred miles, twenty miles are reckoned for a day, and thirty days are added; this, however, as Scaevola used to say, must be so reckoned that there be not less than fifty days. 1 A tutor or curator whose . . . excuse has not been acknowledged, will be liable from the time when he ought to enter upon the administration. 2 He is not considered rightly to nominate one under a preferential obligation, who has not declared the ground for such preferential obligation. 3 Then only is he to be excused who had been appointed before, if the person he has named is found to be preferable, both by reason of relationship and as suitable in means and in credit, and not absent. sum; vicinitatis autem iure nemo potior existi- 216: Excipiuntur autem lege quidem Iulia § 64. NOMINATION OF TUTOR. THE GUARDIANSHIP. ASSUMPTION OF There are three grounds of the delatio' of Tutela, ¿.e., species and forms of the appointment of a tutor: Testament, Statute, Magisterial disposition. 'Testamentaria tutela.' BOOK II. Part I. (1) A paterfamilias can by testament nominate a guardian (tutor testamentarius, dativus) for the children, being impuberes, placed under his potestas." Ulp. xi. 14: Testamento nominatim tutores see § 156, and 1 Part of a speech of the Emperor Severus: 'The indiscriminate right of naming a preferential person, unless confined within certain limits, will, by very lapse of time, deprive wards of their fortunes, which will be met, conscript fathers, if you shall decide that the joint guardians of the father or ward, by ten or in a body, cognates too, or near kinsmen of either relationship, who are excluded by the l. Iul. et Pap., shall not name a preferential person; other cognates, or next of kin, or friends and burghers, may nominate those only whom we have included above; but let no one be thought preferential by virtue of being neighbours. 2 Now six degrees of cognates are excepted by the l. Iulia, and a son of a cousin-german from the seventh, but a daughter also by interpretation of the statute. By the l. Papia the following next of kin are excepted: those that have ever been husband or wife, son-in-law, daughter-in-law, father-in-law, motherin-law, likewise a step-father, step-mother, step-son, stepdaughter. X a For the testamenti factio, comp. D. 26, 2, 9. |