DE TUTELIS. § 142. Transeamus nunc ad aliam divisionem. nam ex his personis, quae neque in potestate neque in manu neque in mancipio sunt, quaedam vel in tutela sunt vel in curatione, quaedam neutro iure tenentur. videamus igitur quae in tutela vel in curatione sint: ita enim intellegemus ceteras personas quae neutro iure tenentur. § 143. Ac prius dispiciamus de his quae in tutela sunt. $144. Permissum est itaque parentibus liberis quos in potestate sua habent testamento tutores dare: masculini quidem sexus inpuberibus dumtaxat, feminini autem tam inpuberibus quam nubilibus. veteres enim voluerunt feminas, etiamsi perfectae aetatis sint, propter animi levitatem in tutela esse. § 145. Itaque si quis filio filiaeque testamento tutorem dederit, et ambo ad pubertatem pervenerint, filius quidem desinit habere tutorem, filia vero nihilominus in tutela permanet: tantum enim ex lege Iulia et Papia Poppaea iure liberorum a tutela liberantur feminae. loquimur autem exceptis virginibus vestalibus quas etiam veteres in honorem sacerdotii liberas esse voluerunt: itaque etiam lege XII Tabularum cautum est. § 146. Nepotibus autem neptibusque ita demum possumus testamento tutores dare, si post mortem nostram in patris sui potestatem iure recasuri non sint. itaque si filius meus mortis meae tempore in potestate mea sit, nepotes quos ex eo habeo non poterint ex testamento meo habere tutorem, quamvis in potestate mea fuerint: scilicet quia mortuo me in patris sui potestate futuri sunt. § 142. Let us now proceed to another classification: persons not subject to power, nor to hand, nor held in mancipation, may still be subject either to guardianship or to administration, or may be exempt from both forms of control. We will first examine what persons are subject to guardianship and administration, and thus we shall know who are exempt from both kinds of control. § 143. And first of persons subject to guardianship or tutelage. $144. The law allows a parent to appoint guardians in his will for the children in his power, below the age of puberty, if they are males; above the age of puberty, if they are females; for, according to our ancestors, even women who have attained their majority, from their intellectual weakness, require to be kept in tutelage. § 145. Accordingly, when a brother and sister have a testamentary guardian, on attaining the age of puberty the brother ceases to be a ward, but the sister continues, for it is only under the lex Julia and Papia Poppaea and by title of maternity that women are emancipated from tutelage; except in the case of vestal virgins, for these, even in our ancestors' opinion, are entitled by their sacerdotal function to be free from control, and so the law of the Twelve Tables enacted. § 146. A grandson or granddaughter can only receive a testamentary guardian provided the death of the testator does not bring them under parental power. Accordingly, if before the grandfather's death the father was in the grandfather's power, the grandchildren, though in the grandfather's power, cannot have a testamentary guardian, because his death leaves them in the power of the father. § 147. As in many other matters after-born children are treated on the footing of children born before the execution of the will, so it is ruled that after-born children, as well as children born before the will was made, may have guardians therein appointed, provided that if born in the testator's lifetime they would be subject to his power [and immediate successors], for the inheritance may be devised to such after-born children, but not to afterborn strangers. $148. A wife in the testator's hand may receive a testamentary guardian as if she were a daughter, and a son's wife in the son's hand as if she were a granddaughter. § 149. The most regular form of appointing a guardian is in the following terms: 'I APPOINT'—or, 'I DEVISE AND APPOINT-LUCIUS TITIUS GUARDIAN TO MY CHILDREN ;' the form, 'BE LUCIUS TITIUS GUARDIAN TO MY CHILDREN'—or, 'TO MY WIFE'-is also valid. § 150. To a wife in his hand a testator is permitted to devise the selection of her guardian, that is, he may authorize her to choose whom she pleases, in the following terms: To TITIA MY WIFE I DEVISE THE SELECTION OF HER GUARDIAN; whereupon she may nominate either a general guardian or a guardian for certain specified matters. § 151. The option of a guardian may be limited or unlimited. § 152. Unlimited option is usually devised in the form above mentioned; limited option in the following terms: TO TITIA MY WIFE I DEVISE NOT MORE THAN ONE OPTION' -or, 'NOT MORE THAN TWO OPTIONS -OF A GUARDIAN.' § 153. The effect of these forms is very different: unlimited option is a power of changing the guardian an indefinite number of times; quae vero angustam habet optionem, si dumtaxat semel data est optio, amplius quam semel optare non potest: si tantum bis, amplius quam bis optandi facultatem non habet. § 154. Vocantur autem hi qui nominatim testamento tutores dantur, dativi; qui ex optione sumuntur, optivi. limited option is the right of a single choice, or of two choices, as may happen. § 154. A guardian nominated by the testator is called a dative guardian; one selected by the widow is called an optative guardian. Having examined those inferiorities of legal capacity which constituted a status, we now proceed to examine certain cases of incapacity which, though analogous to the former as belonging to the sphere of unequal rights, were not included by the Romans under the denomination of status. The inferiorities of capacity in infancy, minority, wardship, curatel, were not so considerable as those which we have hitherto examined. The diminution of rights in a lapse from independence to curatel was less than the least capitis minutio, and accordingly a prodigal who was interdicted from the administration of his estate and subjected to the control of a curator, was not said to undergo a status mutatio: his patrimony still vested in him, though he was deprived of its administration; whereas adrogatio and in manum conventio divested a person of the capacity of ownership and active obligation: inferior status, in a word, is incapacity of right; wardship and curatel are only incapacities of disposition. Guardianship is thus defined: Est autem tutela jus ac potestas in capite libero, ad tuendum eum qui propter aetatem se defendere nequit, jure civili data ac permissa, Inst. 1, 13, 1. Guardianship is a right and power over an independent person conferred or authorized by the civil law for the protection of one who is incapacitated by age for self-defence.' The duties of the guardian related both to the person and to the property of the ward. In respect of his person, the guardian was charged with the care of his nurture and education: in respect of his property, the guardian's function was distinguished as either exclusive administration or concurrent interposition of authority. Up to the age of seven the ward was called infans, and during this period the guardian acted alone (administratio, negotiorum gestio); after the completion of seven years until the age of puberty (fourteen for males, twelve for females) the ward acted, and the guardian concurrently gave his sanction (auctoritas). Even in the latter period the guardian might act alone or concurrently according to his discretion: he probably gave his sanction in proceedings governed by the Civil law [Nemo alieno nomine lege agere potest, Dig. 50, 17, 123. 'No appearance in another person's name, i. e. no representation or agency, is admissible in statute-process'], and simply administered in proceedings governed by the law of nations. In the time of Gaius, women continued subject to guardianship after the age of puberty: the functions of the guardian were then confined to auctoritas, which in most cases was a mere formality; the power of administration vested in the woman, § 190. § 147. Postumus (afterborn) has no etymological connection with inhumation, and no reference to the death of the testator, but simply denotes a person born after the execution of a will, whether after the death or in the lifetime of the testator. The law, however, originally made a distinction between the two cases. The institution or disinherison of a postumus born after the death of a testator was valid at Civil law, and availed to save the will from rupture by afterbirth (agnatio) of an immediate successor (suus heres): the same institution or disinherison would have been invalid and unavailing if the postumus had been born in the lifetime of the testator, before the enactment of the lex Junia Velleia in the reign of Augustus, 2 § 130, commentary. A grandson was postumus alienus if born in the lifetime of his father; he was postumus suus, i. e. immediate lineal successor to his grandfather, if born after the death of his father, 2 § 241, and only in this event could he receive a guardian by the will of his grandfather. Aquillius Gallus invented a form for the conditional institution or disinherison of a grandson, and, doubtless, also for the nomination of his guardian, by a will executed in the lifetime of his father: conditioned, that is, to take effect in the event of the decease of the father before the death of the grandfather. It appears, then, that the statement of Gaius, § 147, is inaccurate, unless we complete it by words taken from the parallel passage in the Institutes, and read: Si modo in ea causa sint ut, si vivis nobis nascantur, [sui et] in potestate nostra fiant. § 148. In filii manu must be regarded as an inaccurate expression for filiusfamilias was incapable of all civil rights, including manus, and could only serve as a conduit-pipe by which the right of manus vested in his father. DE LEGITIMA AGNATORUM TUTELA. § 155. Quibus testamento quidem tutor datus non sit, iis ex lege XII agnati sunt tutores, qui vocantur legitimi. § 156. Sunt autem agnati per virilis sexus personas cognatione iuncti, quasi a patre cognati: veluti frater eodem patre natus, fratris filius neposve ex eo, item patruus et patrui filius et nepos ex eo. At hi qui per feminini sexus personas cognatione iunguntur non sunt agnati, sed alias naturali iure cognati. itaque inter avunculum et sororis filium non agnatio est, sed cognatio. item amitae, materterae filius non est mihi agnatus, set cognatus, et invicem scilicet ego illi eodem iure coniungor: quia qui nascuntur patris, non matris familiam sequuntur. § 157. Sed olim quidem, quantum ad legem XII tabularum attinet, etiam feminae agnatos habebant tutores; set postea lex Claudia lata est quae, quod ad feminas attinet, tutelas illas sustulit. itaque masculus quidem inpubes fratrem puberem aut patruum habet tutorem; feminae vero talem habere tutorem non intelleguntur. § 158. Set agnationis quidem ius capitis diminutione perimitur, cognationis vero ius non commutatur: quia civilis ratio civilia quidem iura corrumpere potest, naturalia vero non potest. § 155. In default of a testamentary guardian the statute of the Twelve Tables assigns the guardianship to the nearest agnates, who are hence called statutory guardians. § 156. Agnates (3 § 10) are cognates through males, that is, through their male ascendents: as a brother by the same father, such brother's son or son's son; a father's brother, his son or son's son. Cognates through female ascendents are merely natural kinsmen. Thus, between a man and his sister's son there is not agnation, but cognation: so my father's sister's son or my mother's sister's son is not my agnate, but my cognate, and viceversa; for children are members of their father's family, but not of their mother's. § 157. In former times, the statute of the Twelve Tables made females as well as males wards of their agnates: subsequently a law of the Emperor Claudius abolished this wardship in the case of females: accordingly, a male below the age of puberty has his brother above the age of puberty or his paternal uncle for guardian, but females are not in the wardship of their agnates. § 158. Loss of status extinguishes rights by agnation, while it leaves unaffected rights by cognation, because civil changes can affect rights annexed to a civil title, but not rights annexed to a natural title. The maxim of the Civil law is stated by Justinian: Plerumque ubi successionis est emolumentum, ibi et tutelae onus esse debet, Inst. 1, 17. As a general rule, those that have the emolument of succession should bear the burden of guardianship.' Feudal law, and its daughter, the Common law, in respect of guardianship in socage, was guided by the opposite policy. Guardianship in socage |