BOOK III. Inst. ii. 12 pr.: —militibus, qui in potestate parentum sunt, . . . de eo quod in castris adquisierint permissum est ex constitutionibus principum testamentum facere: quod quidem initio tantum militantibus datum est tam ex auctoritate D. Augusti quam Nervae nec non optimi imperatoris Traiani, postea vero subscriptione D. Hadriani etiam dimissis militia, i.e. veteranis, concessum est.1 Ulp. Si filius familias miles decesserit, si quidem intestatus, bona eius non quasi hereditas, sed quasi peculium patri deferuntur: si autem testamento facto, hic pro hereditate habetur castrense peculium.-1. 2, D. de castr. pec. $150. THE LATER LAW: PECULIUM QUASI CASTRENSE; BONA ADVENTICIA. From the time of Constantine a proprietary independence was gradually acquired by filii fam., to an ever wider extent. Acquisitions by public office (state, court or ecclesiastical service) were placed on the same footing as military acquisitions: Peculium quasi castrense. Inst. ii. 11, § ult.: Sciendum tamen est, quod ad exemplum castrensis peculii tam anteriores leges quam principales constitutiones quibusdam quasi castrensia dederunt peculia, atque eorum 1 Soldiers that are under parental power... have been allowed by imperial constitutions to make a testament concerning such property as they have acquired in the field; and this right was at the outset granted by the late Emperors Augustus and Nerva and the excellent Emperor Trajan only to those engaged in the service, but afterwards it was allowed by a subscriptio of the late Emperor Hadrian to soldiers discharged from the service, i.e., to veterans. If a fil. fam. has died as a soldier, and that intestate, his estate devolves upon his father not as inheritance, but as peculium; but if a testament has been made, in this case the military peculium is treated as an inheritance. Part II. quibusdam permissum erat etiam in potestate BOOK III. Moreover, a maternal inheritance (bona materna) was in general recognised in every acquisition proceeding from the maternal side (bona materni generis), and finally, inheritance by marriage (lucra nuptialia), as the peculiar property of the fil. fam., in which the pat. fam. should possess only the usufruct for life: bona adventicia. In certain cases the father's usufruct even a Cf. Curtesy was not allowed, as when the acquisition, especially of an inheritance, was made against the declared will of the pater fam., or if the donor had by stipulation taken away the right of the latter to the user: bona adventicia irregularia. Finally, Justinian provided that every non-military acquisition of filii fam., which they had not made from the property of the pater, should be on the same footing as bona materna; so that there was thenceforth (1) fully free property of the child (bona castrensia vel quasi); (2) bona adventicia of the same, and besides, (3) as in the older Law, still merely one peculium, that is, a patre profectum.' Inst. ii. 9, § 1: Sancitum etenim a nobis est, ut si quid ex re patris ei obveniat, hoc secundum antiquam observationem totum parenti adquirat : . quod autem ex alia causa sibi filiusfamilias adquisivit, huius usumfructum quidem patri ad 1 We must, however, note that, according to the analogy of military peculium, both ancient statutes and imperial constitutions have conferred quasi-military peculia on certain persons; and to some of such persons leave has been given to make a testament, even while under paternal power, and our constitution, by wider development of this, has allowed all to make a testament in respect alone of this peculium. (Scrutton, pp. 98-99). BOOK III. "For English Law, see Steph. ii. 316-7. quirat, dominium autem apud eum remaneat, ne quod ei suis laboribus vel prospera fortuna accessit, hoc in alium perveniens luctuosum ei procedat.1 INFLUENCE OF GUARDIANSHIP UPON PROPERTY. § 151. THE DISCHARGE OF GUARDIANSHIP." Upon the guardian devolves the administration of the property of the ward, representation of him, and In respect of concurrence in his legal transactions. tutela mulierum, see Ulp. ai. 25, 27. As regards the administration of the property (administratio, gestio) and the whole representation, by Private Law, of pupils, the tutor (1) in the older Law assumes an entirely unfettered position: he can alienate property of the pupil, has to conclude legal transactions, and to conduct law-suits, but his administration must be to the advantage of the ward under his protection, and he must in general guard his interest in all particulars, and in this is responsible for culpa in concreto.e Paul. Tutor qui tutelam gerit, quantum ad providentiam pupillarem, domini loco haberi debet.-1. 27, D. h. t. (de adm. tut. 26, 7).2 Id. Tutor ad utilitatem pupilli et novare et rem in iudicium deducere potest: donationes autem ab eo factae pupillo non nocent.-1. 22 eod.3 For we have ordained that whatever devolves upon him by virtue of his father's property shall, according to the ancient practice, be wholly acquired by him for the father; . . . but whatever the fil. fam. has gained for himself upon another title, of this the father shall in fact have the usufruct, whilst the ownership shall remain with him, that what has come into his possession through his own effort or success may not pass into another's hands and cause him trouble. 2 A guardian that conducts the guardianship must be regarded as owner in so far as concerns solicitude for the ward. 3 A guardian can for the benefit of the ward undertake nova Marc. Tutoris praecipuum est officium, ne indefensum pupillum relinquat.-1. 30 eod.' Ulp. Generaliter quotienscumque non fit nomine pupilli quod quivis paterfamilias idoneus facit, non videtur defendi: sive igitur solutionem sive iudicium sive stipulationem detrectat, defendi non videtur. l. 10 eod.2 Callistr. A tutoribus et curatoribus pupillorumı eadem diligentia exigenda est circa administrationem rerum pupillarium, quam paterfamilias rebus suis ex bona fide praebere debet.-1. 33 pr. eod.3 The administrative authority of the guardian was first limited by the Oratio D. Severi (195 A.D.), which rendered necessary the issue of a magisterial decree, after preliminary causae cognitio, for alienations of praedia rustica and suburbana. In the succeeding period this prohibition of alienation was transferred also to other property in wardship, to the widest extent, and the independent administration of guardians was thereby circumscribed within very narrow limits. Ulp. Imperatoris Severi oratione prohibiti sunt tutores et curatores praedia rustica vel suburbana distrahere. § Quae oratio in senatu recitata est Tertullo et Clemente consulibus Idibus Iuniis, et sunt verba eius huiusmodi : § Praeterea, patres conscripti, interdicam tu tion and carry a cause before the iudex; but donations made by him do not prejudice the ward. 1 The main duty of the guardian is, not to leave the ward unprotected. 2 A ward seems in general to be without a protector whenever that is not done in the name of the ward which is done by every capable head of a household; and whether it is the guardian refuses to make a payment, or to institute proceedings, or to give a stipulative undertaking, the ward appears to be without protection. 3 From tutors and curators of wards the same carefulness is required in respect of the management of the ward's affairs as the head of a household ought in good faith to exhibit in his own affairs. BOOK III. Part II. BOOK III. tural.' & Or horticultural.' 1 toribus et curatoribus, ne praedia rustica vel suburbana distrahant, nisi ut id fieret, parentes testamento vel codicillis caverint: quodsi forte aes alienum tantum erit, ut ex rebus ceteris non possit exsolvi, tunc praetor urbanus vir clarissimus adeatur, qui pro sua religione aestimet, quae possint alienari obligarive debeant, manente pupillo actione, si postea potuerit probari obreptum esse praetori; si communis res erit et socius ad divisionem provocet, aut si creditor, qui pignori agrum a parente pupilli acceperit, ius exsequetur, nihil novandum censeo.'-D. 27, 9, 1. 1 pr., §§ 1, 2.' Imp. Constant. Iam venditio tutoris nulla sit sine interpositione decreti, exceptis his dumtaxat vestibus, quae detritae usu aut corruptae servando servari non potuerint. Animalia quoque supervacua minorum quin veneant, non vetamus. -C. 5, 37, 22, 6.2 By a speech of the Emp. Severus, tutors and curators were "Or agricul- forbidden to dispose of rural" or suburban estates. § And this speech was read in the senate under the consuls Tertullus and Clemens on the 13th June, and the wording of it is as follows: 'Moreover, conscript fathers, I shall prohibit tutors and curators from disposing of rural or suburban estates, unless the parents should have provided for that being done in the testament or in codicils. But if the debts shall chance to be so great that they cannot be paid out of the rest of the property, then resort shall be had to the Urban Praetor, a most honourable personage, that he may conscientiously determine what lands can be sold or should be mortgaged, so that an action remain for the ward, should he afterwards be able to prove that the Praetor's decree has been obtained covertly. If the thing shall be owned in common, and the joint-owner shall press for partition, or if a creditor who shall have received land in pledge from the ward's father shall enforce his right, I am of opinion that no change should be made (in the pre-existing right).' 2 There shall now be no sale on the part of a tutor without the issue of a decree, with the exception alone of such garments as, worn out or spoilt by use, cannot be preserved by keeping. And we do not forbid the sale of superfluous cattle belonging to minors. |