3. Permissum est itaque parentibus, liberis impuberibus, quos in potestate habent, testamento tutores dare. Et hoc in filio filiaque omnimodo procedit; nepotibus tamen neptibusque ita demum parentes possunt testamento tutores dare, si post mortem eorum in patris sui potestatem non sint recasuri. Itaque si filius tuus mortis tuæ tempore in potestate tua sit, nepotes ex eo non poterunt testamento tuo tutorem habere, quamvis in potestate tua fuerint; scilicet quia mortuo te in patris sui potestatem recasuri sunt. 3. Ascendants may give tutors by testament to such of their children as have not attained the age of puberty, and are under their power. And this, without any distinction, in the case of all sons and daughters. But grandfathers can only give tutors to their grandchildren when these will not fall under the power of their father on the death of the grandfather. Hence, if your son is in your power at the time of your death, your grandchildren by that son cannot have a tutor appointed them by your testament, although they were in your power; because, at your decease, they will fall under the power of their father. GAI. i. 144. 146. 6 The law of the Twelve Tables said, Uti legassit super pecunia tutelave suæ rei, ita jus esto.' None but the head of the family could appoint a tutor by testament, and for none but children, or descendants in his power, who were included in the term sua res. Further, he could only appoint a tutor for those who, on his death, became sui juris, and were under age. 4. Cum autem in compluribus aliis causis postumi pro jam natis habentur, et in hac causa placuit non minus postumis quam jam natis testamento tutores dari posse, si modo in ea causa sint, ut, si vivis parentibus nascerentur, sui et in potestate eorum fierent. 4. Posthumous children, as in many other respects, so also in this respect, are considered as already born before the death of their fathers; and tutors may be given by testament to posthumous children, as well as to children already born, provided that the posthumous children, had they been born in the lifetime of their ascendant, would have been sui heredes, and in their ascendant's power. GAI. i. 147. It was a maxim of Roman law that nothing could be given by testament to an uncertain person, and a posthumous child was looked on in this light, so much so that he could not be heir, nor take a legacy, nor have a tutor appointed by will; afterwards this was so far modified that as regarded the chief of his family he was looked on as if born in the father's lifetime (pro jam nato habebatur); that is, the ascendant might make him heir, disinherit him, give him a legacy, or appoint a tutor for him. It was not until the time of Justinian that the posthumous child of a stranger was capable of taking under a testament. (See note on Bk. ii. 20. 28.) The words compluribus in causis are extracted from Gaius; Justinian left no point of difference between the posthumous child and the child born in its father's lifetime. (C. vi. 48.) The proper meaning of posthumus is born after the death a person.' Under special legislation it received the artificial sense of born after the date of a testament.' (Bk. ii. 13. 2.) of a By the term sui heredes were meant those persons who, on the death of the head of the family, having no one above them in the line of ascent, became sui juris, and were the necessary heirs of the deceased, if intestate. (See Introd. sec. 77.) 5. Sed si emancipato filio tutor a patre testamento datus fuerit, confirmandus est ex sententia præsidis omnimodo, id est sine inquisitione. 5. But, if a father gives a tutor by testament to his emancipated son, the appointment must be confirmed by the sentence of the præses in all cases, that is, without inquiry. D. xxvi. 3. 1. The emancipated child not being in the power of his father, could not, strictly speaking, be subject to the father's directions as to his tutor; but a magistrate had power to carry out an appointment of a tutor in a testament if there was only this technical objection to be surmounted. The wishes of a father were considered so sure an indication to the magistrate of the fittest person to be tutor, that they were always carried out without examining into the suitability of the appointment (sine inquisitione), unless some change in the position of the tutor since the making of the testament made him obviously unfit for the office. (D. xxvi. 111. 8. 9.) A father could appoint by testament a tutor for his natural children if he left them property; and the mother, the patron, and indeed any one who left property to infants sui juris, might appoint a tutor by testament, and the magistrate carried out the appointment, but in these cases not until he had examined all the circumstances of the case. (D. xxvi. 111. 2. 4.) The husband might also by testament appoint a tutor to his wife in manu, or give her the option of fixing on a tutor. (GAI. i. 148–154.) TIT. XIV. QUI DARI TUTORES TESTAMENTO Dari autem potest tutor non Not only a paterfamilias may be solum paterfamilias, sed etiam appointed tutor, but also a filiusfafiliusfamilias. milias. The office of tutor was looked on as in some respects a public one, as the tutor supplied what was wanting to the persona of a citizen; and a filiusfamilias was always capable of holding any public office. (D. i. 6. 9.) Any one could be made a tutor with whom there was the testamenti factio (D. xxvi. 2. 21), or, in other words, any one who had the rights of citizenship sufficiently to enable him to go through the peculiar forms of Roman law. Women could not be appointed tutors according to the old law, but the emperors would confirm the power of a mother named by testament tutor of her children. (D. xxvi. 1. 18.) 1. Sed et servus proprius testamento cum libertate recte tutor dari potest. Sed sciendum est, eum et sine libertate tutorem datum tacite et libertatem directam accepisse videri et per hoc recte tutorem esse. Plane si per errorem quasi liber tutor datus sit, aliud dicendum est. Servus autem alienus pure inutiliter datur testamento tutor: sed ita cum liber erit utiliter datur. Proprius autem servus inutiliter eo modo datur tutor. 1. A man may also by testament appoint as a tutor his own slave, at the same time giving him his liberty. But it must be observed that if a slave is appointed tutor without an express gift of liberty, he is still held to receive by implication a direct freedom, and thus can legally be tutor. If, however, it is by mistake, and from the testator supposing him to be free, that he is appointed tutor, the decision would be different. The appointment of a slave belonging to another person as tutor is ineffectual, if unconditional; but is valid when made with this condition, 'when he shall be free.' If, however, any one appoints his own slave with such a condition, the appointment is void. D. xxvi. 2. 32. 2. A slave was ir capable of holding any legal office. It was therefore necessary to enfranchise him in order that he might become a tutor. If the appointment was made without express enfranchisement, it was the opinion of Paul (D. xxvi. 2. 32) that the appointment implied enfranchisement, and this as if given by the testator himself (directa), and not entrusted to his heir to give (fideicommissaria). Valerian and Gallian, however, decided subsequently by a rescript (C. vii. 4. 9), that it was only a libertas fideicommissaria which such an appointment carried with it. Justinian here restores the authority of the former opinion. The appointment of the slave of another carried with it the libertas fideicommissaria, that is, it was incumbent on the heir to purchase and emancipate the slave, who could then discharge the office of tutor. (D. xxvi. 2. 10. 4.) If the heir was not able to purchase the slave, then the slave could not act as tutor until he gained his freedom in some other way. Even if the testator had not used the words cum liber erit, or some corresponding expression, he was presumed to have intended to use them, unless a contrary intention appeared. (D. xxvi. 2. 10. 4; Cod. vii. 4. 9.) If a testator said of his own slave that he was to be tutor when free, this showed that the testator, who had the power to enfranchise him, did not choose to exercise it; and as he thus voluntarily made his own appointment void, the law would not help him. 2. Furiosus vel minor viginti quinque annis tutor testamento datus tutor erit, cum compos mentis aut major viginti quinque annis fuerit factus. 2. If a madman or a person under the age of twenty-five years is by testament appointed tutor, the one is to begin to act when he becomes of sound mind, and the other when he has completed his twenty-fifth year. D. xxvi. 1. 11; xxvi. 2. 32. 2. Meanwhile the magistrate would appoint another tutor. (See Tit. 20.) 3. Ad certum tempus vel ex certo tempore vel sub condicione vel ante heredis institutionem posse dari tutorem non dubitatur. 3. There is no doubt that a tutor may be appointed either until a certain time, or from a certain time, or conditionally, or before the institution of an heir. The old law regarded the naming the persons designed to take as heirs under the testament as the base of the testament, and passed over every declaration of the testator's wishes placed before this as out of due order and entirely void. The Proculians (GAI. ii. 231) thought this ought not to be extended to the appointment of a tutor, and Justinian did away with the doctrine altogether. 4. Certæ autem rei vel causæ tutor dari non potest, quia personæ, non causæ vel rei datur. 4. A tutor cannot be appointed for a particular thing or business, as it is to a person, and not for a business or a thing, that a tutor is appointed. D. xxvi. 2. 12. 14. The tutor had to take charge of the whole interests of the pupil, and complete his persona, and therefore to appoint him to take charge of his interest in any one matter only was inconsistent with the nature of his office, and such an appointment was void. (D. xxvi. 2. 13.) If, however, the property of the pupil was situated in provinces far apart from each other, a separate tutor might be appointed to take care of his interests in each province. (D. xxvi. 2. 15.) 5. Si quis filiabus suis vel filiis tutores dederit, etiam postumæ vel postumo videtur dedisse, quia filii vel filiæ appellatione et postumus et postuma continentur. Quid, si nepotes sint, an appellatione filiorum et ipsis tutores dati sunt? Dicendum est, ut ipsis quoque dati videantur, si modo liberos dixit. Ceterum si filios, non continebuntur: aliter enim filii, aliter nepotes appellantur. Plane si postumis dederit, tam filii postumi quam ceteri liberi continebuntur. 5. If any one appoints a tutor to his sons or daughters, he is held also to appoint him as tutor to his posthumous children; because, under the appellation of son or daughter, a posthumous son or daughter is included. But if there are grandchildren, are they included in the appointment of a tutor to sons? We answer, that under an appointment to children, grandchildren are included, but not under an appointment to sons; for son and grandson are quite distinct words. But, if a testator appoints a tutor to those who are posthumous, the term obviously includes all posthumous children, whether sons or grandsons. TIT. XV. DE LEGITIMA Quibus autem testamento tutor datus non sit, his ex lege duodecim tabularum adgnati sunt tutores, qui vocantur legitimi. ADGNATORUM TUTELA. They to whom no tutor has been appointed by testament, have their agnati as tutors, by the law of the Twelve Tables, and such tutors are called 'legal tutors.' D. xxvi. 4. 1; GAI. i. 155. Tutores legitimi means tutors appointed by a law, that is, by the law of the Twelve Tables, or according to some inference from its provisions, as in the case of patrons. 'Legal' must be here understood as equivalent to by virtue of a law." 1 Sunt autem adgnati per virilis sexus cognationem conjuncti, quasi a pater cognati, veluti frater eodem patre natus, fratris filius neposve ex eo, item patruus et patrui filius neposve ex eo. At qui per feminini sexus personas cognatione junguntur, non sunt adgnati, sed alias naturali jure cognati. Itaque amitæ tuæ filius non est tibi adgnatus, sed cognatus (et invicem scilicet tu illi eodem jure conjungeris), quia qui nascuntur, patris, non matris familiam sequuntur. 1. Agnati are those who are related to each other through males, that is, are related through the father, as, for instance, a brother by the same father, or the son of such a brother, or the son of such a son; or, again, a father's brother, or a father's brother's son, or the son of such a son. But those who are related to us through females are not agnati, but merely cognati by natural relationship. Thus the son of a father's sister is related to you not by agnation, but by cognation, and you are also related to him by cognation; as children belong to the family of their father, and not to that of their mother. GAI. i. 156. The law gave the rights of relationship, such as inheritance and appointment as tutors, to the agnati only. All persons, related by ties of blood, were cognati to each other. Within this larger circle the members of any one family were agnati to each other. A family, in this sense, consisted of all persons related to each other, by having a common ancestor, in whose power, if he was alive, they would all be. A brother and sister, for instance, were agnati, and a nephew and aunt, by the father's side. For if the grandfather were alive all would be in his power. But the tie was dissolved by the sister or aunt marrying in manum (see Introd. sec. 46); and as the children of females would be in the power of the husband, they could never be agnati to their mother's agnati, except by adoption; and hence it is here said that agnati are related through males only. By the 118th Novel Justinian abolished this distinction between agnati and cognati, and the nearest in blood was thenceforth the tutor legitimus. (Nov. 118. 4, 5.) 2. Quod autem lex ab intestato vocat ad tutelam adgnatos, non hanc habet significationem, si omnino non fecerit testamentum is, qui poterat tutores dare, sed si quantum ad tutelam pertinet, intestatus decesserit. Quod tunc quoque accidere intellegitur, cum is, qui datus est tutor, vivo testatore decesserit. 2. The law calling the agnati to be tutors in case of intestacy, does not refer merely to the case of a person who might have appointed a tutor, dying without having made any testament at all, but also to that of a person dying intestate only so far as regards the appointment of a tutor, and this includes the case of a tutor nominated by testament dying in the lifetime of the testator. D. xxvi. 4. 6. |