1Gaius, On the Provincial Edict, Book XI. Parents are permitted by the Law of the Twelve Tables to appoint by will guardians for their children of either the female or the male sex, provided they are under their control. 1We should also remember that parents are allowed to appoint testamentary guardians for their posthumous children, grandchildren, or any other descendants, if, where such children were born during the lifetime of the testator they would have been under his control, and would not have broken the will. 2It should also not be forgotten that, where anyone has a son, and also a grandson by the said son, under his control, and he appoints a guardian for his grandson, he must be held to have properly appointed him, if the grandson, after his death, does not again come under the control of his father, which would be the case if his son should cease to be under his control during the lifetime of the testator.

2Ulpianus, On Sabinus, Book II. It was stated in a Rescript by the Divine Brothers, that a soldier cannot appoint a guardian for his grandchildren, if they were liable to again come under the control of their father.

3The Same, On the Edict, Book XXXV. We should consider persons who are mentioned in a codicil confirmed by a will to be testamentary guardians. 1Those, however, who are appointed by law, should not be considered testamentary guardians.

4Modestinus, Differences, Book VII. A father can appoint a guardian for his son whether he has appointed him his heir, or disinherited him. A mother, however, cannot do this, unless she has constituted her son her heir, as a guardian is held to have been appointed rather with reference to property than to the person. It is necessary for the party appointed by the will of the mother to be confirmed only after examination, since, where he is appointed by the father—even though this has been done with the omission of some legal formalities—he will still be confirmed without any examination, unless the reason for his appointment appears to have been changed; for instance, where from a friend he has become an enemy, or where having previously been rich, he has become poor.

5Ulpianus, On Sabinus, Book XV. Where anyone appoints a guardian for his daughters or his sons, he is held also to have appointed him for a posthumous daughter, because the term “posthumous” is included in the term daughter.

6The Same, On Sabinus, Book XXXIX. But suppose there are grandchildren, must it be held that a guardian is appointed for them under the name of “children”? The better opinion is that the guardian is also appointed for them, provided the testator made use of the word “children”. If, however, he used the word “sons”, they will not be included, for the term son is one thing, and the term grandson another. It is clear that if he appointed a guardian for his posthumous children, the offspring of the latter, as well as the other children, will be included.

7Paulus, On Sabinus, Book III. Guardians do not derive their authority from the heir, but directly from the testator, and they are vested with it as soon as an heir appears; or the heir himself can be appointed guardian, and a guardian can legally be appointed after the death of the heir.

8Ulpianus, On Sabinus, Book XXIV. Where a guardian is appointed, the appointment can be revoked either by another will, or by a codicil. 1If a guardian is appointed under certain conditions, and the condition fails to take place, the appointment is void. 2Moreover, a guardian can be appointed from a certain time, and up to a certain date, as well as under a condition, and until the fulfillment of the condition. 3In the appointment of a guardian, must it be considered whether the condition is most easy of fulfillment, or latest; as, for instance, in the case of a legacy, where Titius is appointed guardian, when he is able to act, or where he is appointed, if a ship should come from Asia? Julianus very properly states in the Twentieth Book of the Digest, that the latest condition which is mentioned should be considered.

9Pomponius, On Quintus Mucius, Book III. Where no one enters upon the estate, nothing stated in the will is valid. If, however, one out of several heirs enters upon it, the appointment of a guardian will be valid, and it will not be necessary to wait for all the heirs to accept the estate.

10Ulpianus, On Sabinus, Book XXXVI. If an estate is not yet entered upon, and the appointment of a guardian is expected under the will disposing of it, the better opinion is that another guardian can be appointed, just as if there was none, nor any expectation of one. 1In testamentary guardianship, the last will of the testator is observed, and if he has appointed several guardians, we accept the last one mentioned. 2Where a man had a son, and a grandson by him, and appointed a guardian for the grandson, there may be a question whether an appointment under such circumstances will not be valid; for example, if one supposes that the son died during the lifetime of his father, and for this reason the grandson will become the heir to his grandfather during the lifetime of the latter. It must be positively held that such a guardianship is confirmed by the Lex Junia Velleia. Pomponius stated in the Sixteenth Book on Sabinus that the appointment of such a guardian is valid. For as the will is valid, the appointment of the guardian made therein will consequently also be valid; that is to say, where the grandson is either appointed heir, or expressly disinherited. 3Where an insane person is appointed a guardian by will, Proculus thinks that the appointment is properly made, if it is stated that he shall act when he ceases to be insane. If, however, he is appointed unconditionally, Proculus denies that the appointment is valid. What Pomponius says is more correct, that is, that the appointment was held to have been properly made, and that the guardian can act when he recovers his reason. 4A slave belonging to another can be appointed a guardian, where it is stated that he shall act if he becomes free. And even if the slave should be appointed without any condition, the acquisition of his freedom is held to be a condition upon which his appointment depends. Where, however, a slave belonging to another is appointed, anyone, however, can maintain that, by doing so, the testator has bequeathed him his freedom by means of a trust. For what difference does it make whether he appoints his own slave, or that of another, since, in the interest of the ward, and in consideration of the public welfare, the freedom of him who is appointed guardian is assumed? Therefore, it can be maintained that freedom through a trust has been conferred upon the slave, unless it is perfectly clear that this was not the intention of the testator.

11The Same, On Sabinus, Book XXXVII. If anyone appoints a guardian under a condition or from a certain date, another guardian should be appointed in the meantime, even though the ward may already have a legal guardian; for it must be remembered that legal guardianship is not operative so long as the appointment of a testamentary guardian is expected. 1Where the office of guardian devolves upon one appointed by will, and the testamentary guardian is afterwards excused from serving; we can say in this instance that another should be appointed in the place of the one who was excused, and that the office does not revert to the legal guardian. 2We also say that, if the guardian should be removed, the same rule will apply; for he retires in order that another may be appointed. 3If, however, the testamentary guardian should die, the office will revert to the original guardian, because in this instance the Decree of the Senate does not apply. 4It is evident that if two or more testamentary guardians are appointed, and one of them dies or forfeits his civil rights, another can be appointed in his stead; but if neither of them survives, or retains his civil rights, the legal guardianship will be established.

12The Same, On Sabinus, Book XXXVIII. A guardian cannot be appointed by will for the management of certain affairs, without including the administration of property.

13Pomponius, On Sabinus, Book XVII. And if one should be appointed under such conditions, the entire appointment will be void:

14Marcianus, Institutes, Book II. For the reason that a guardian is appointed to have charge of the person, and not merely for the care of certain property, or the transaction of some business.

15Ulpianus, On Sabinus, Book XXXVIII. Where, however, a guardian is appointed for property which is situated in Africa or Syria, the appointment will be valid, for this is our practice.

16The Same, On Sabinus, Book XXXIX. If anyone should name a guardian as follows: “I appoint So-and-So guardian of my children”, the appointment will be held to have been made for the sons as well as the daughters of the testator, for daughters are included in the term children. 1If a man should appoint a guardian for his son, and he has several sons, will he be held to have appointed him for all of them? Pomponius is in doubt on this point; but the better opinion is that he will be held to have made the appointment for all. 2Where anyone appoints a guardian for his children, or merely for his sons, he will be held to have made the appointment for any whom he may have who are held captive by the enemy, if it is not clearly established that the intention of the testator was otherwise. 3If anyone should appoint a guardian for his children, not being aware that Titius was his child; shall he be considered to have made the appointment only for those whom he knew to be under his control, or also for him who he did not know was his son? The better opinion is that he should not be considered to have made the appointment for the latter, although he is included among the number of his sons; but, for the reason that he did not have him in mind at the time, it must be said that the appointment does not have reference to him. 4Hence the same rule will apply where a man was certain that his son was dead, while in fact he was living; for he is not held to have appointed a guardian for one whom he believed was dead. 5Where anyone appoints a guardian for his posthumous children, and the latter are born during his lifetime, will the appointment be valid? The better opinion is that it will be valid, even though the said children should be born while he is living.

17The Same, On the Edict, Book XXXV. It is perfectly certain that testamentary guardians should not be compelled to give security for the preservation of the property of their wards. Still, when one of several offers to furnish security that he will administer the office alone, he should be heard, as is provided by the Edict. Moreover, the Prætor very properly inquires of the others whether they also are willing to give security, for if they are ready to do so, they should not be excluded by the offer of the first one; but if security is furnished by all, all can administer the trust, so that any of them who prefers to receive security rather than administer it will be rendered safe. 1By no means, however, is a guardian who offers to give security always to be preferred. For what if he was a suspicious person, or one who is infamous to whom the guardianship should not be entrusted, even if he gave security? Or, if he had already been guilty of many crimes in the administration of the guardianship, should he not rather be dismissed and expelled from his office, than be allowed to administer it alone? Those who do not give security should not rashly be rejected, because, generally speaking, persons who are of good repute, solvent, and honest, should not be excluded as guardians, even if they do not furnish security, nor, indeed, should they be ordered to furnish it. 2Therefore the examination instituted by the Prætor is twofold in its nature; on the one hand, it must be ascertained who, and what kind of a person he is who offers to give security; and on the other, the character and qualifications of his fellow guardian should be investigated. For it is necessary to learn what their standing and honesty are, so that they may not be subjected to the insult of being compelled to give security.

18Callistratus, On the Monitory Edict, Book III. Where several guardians are prepared to furnish security, the most solvent of them should be given the preference; so that comparison may be made between the guardians and their sureties.

19Ulpianus, On the Edict, Book XXXV. If none of the guardians volunteer to give security, but a certain person who is not a guardian appears, and requests that the guardians furnish it, or, if they do not do so, that the guardianship should be given to him, he being ready to provide security; he should not be heard. For guardianships ought not to be entrusted to a stranger, and testamentary guardians should not be compelled to give security contrary to law. 1This Edict with reference to the furnishing of security applies to testamentary guardians. Where, however, guardians are appointed after an examination, Marcellus says that this Edict is also applicable to them, and this is also indicated by an Address of the Divine Brothers. They therefore come under the same rule, hence if the majority of the guardians so decide, he shall administer the guardianship whom the majority may select, although the terms of the Edict specifically apply to testamentary guardians. 2Where a guardian is appointed by will for a posthumous child, he cannot administer the office until the posthumous child is born. An action on the ground of voluntary agency will, however, be granted to the substituted ward as against the guardian. But where the child is born, and the guardian is removed from office before he discharges any of its duties, he will be liable to this same action. If, however, he transacts any business after the child is born, he will be liable to an action on guardianship with reference also to any matters which he has previously attended to, and his entire administration will be included in this action.

20Paulus, On the Edict, Book XXXVIII. A man whose name or condition is uncertain cannot be appointed a guardian. 1We can appoint any person whomsoever a guardian by will, even if he be Prætor or Consul, because this is authorized by the Law of the Twelve Tables.

21The Same, Abridgments, Book VIII. Those can be appointed testamentary guardians who are competent to take under the will.

22Ulpianus, On the Edict, Book XLV. If anyone should appoint a slave the guardian of his son, thinking that he was free, when, in fact, he was a slave; he shall neither become free, nor act as guardian under the provisions of the will.

23Africanus, Questions, Book VIII. The appointment of a guardian is not legally made in the following terms: “Titius shall be the guardian of such-and-such of my children, whichever he prefers”. For what could we say if Titius refused to decide for which one of the children he preferred to be the guardian? 1A guardian can, however, be properly appointed in the following terms: “I appoint Titius to be the guardian of So-and-So, my son, if he is willing”.

24Javolenus, On Cassius, Book V. Where there are several guardians, it is superfluous to petition the Prætor to appoint a curator for the purpose of conducting a lawsuit against one of them, because the ward can begin the action with the authority of another guardian.

25Modestinus, Pandects, Book IV. Where a guardian is appointed for two minors, even if he can excuse himself from the guardianship of one of them, he will still remain the guardian of the other, if the property of the minors is separate.

26Papinianus, Opinions, Book IV. In accordance with our laws, the guardianship of their common children cannot be left to the mother by the father’s will, and if the Governor of the province, through ignorance, should decide that the will of the father shall be carried out, his successor cannot properly adopt his decision which is not permitted by our laws. 1A guardian is not considered to be an honorary one that the father appointed for the purpose of receiving accounts from other guardians, whom he directed to transact the business of his children. 2Where a son, who is disinherited, was provided with a guardian by the last will of his father, and desires to institute proceedings against the will as inofficious, the appointment of the guardian must be confirmed by the Prætor; and the result of the action will establish whether he received his authority from the will of the father, or from the decree of the Prætor.

27Tryphoninus, Disputations, Book XIV. The same rule applies where the defence is set up in the name of the ward that his father died intestate, or where the allegation that the will is forged is made in the name of the ward; and if a paternal uncle is living, he will become the legal guardian ab intestato, because a guardian cannot be appointed for a ward who is already provided with one. It is, however, more convenient that the guardian mentioned in the will should be appointed by the Prætor, so that the legal guardian may authorize the ward to proceed without any prejudice to the case. 1Where a paternal uncle, whom the ward declares ought to be his lawful guardian, accuses him of being a supposititious child, and claims that the estate lawfully belongs to him; Julianus is of the opinion that application for the appointment of another guardian should be made.

28Papinianus, Opinions, Book IV. Where a testamentary guardian is unwilling to undertake the duties of the office, and gives reasons for which he should be excused, he shall be deprived of any legacies which may been bequeathed to his children by the will; provided the latter have deserved these legacies not through special affection, but for the sake of their father. 1When a slave has been manumitted under the terms of a trust, he cannot legally be appointed a guardian by will. Hence, after his freedom has been granted him, he may be called to the guardianship in accordance with the desire of the testator. 2A patron cannot appoint a guardian for his freedman by will, but the Prætor can carry out his wishes if, after examination, he finds the character of the appointee to be suitable.

29The Same, Opinions, Book XV. According to the terms of the Libonian Decree of the Senate, a person cannot act who appointed himself the testamentary guardian of a ward. For as the intention of the father is not doubtful, since he stated it in an instrument in his own hand, I gave the opinion that he should be appointed curator, even though there may be other guardians. In this instance, the excuse to which he would be entitled by law should not be admitted, since he is held to have bound himself, nor can he be removed on the ground of suspicion.

30Paulus, Questions, Book VI. Two persons are named Titius, father and son; Titius is appointed guardian, but it does not appear which one the testator meant. I ask what is the law in the case? The answer was, that he should be appointed whom the testator had in his mind. If his intention is not apparent the law is not defective, but the evidence is lacking. Therefore neither of them can act as guardian.

31Scævola, Questions, Book IV. If a father should appoint guardians for a daughter whom he has disinherited, and the will should be declared to be broken on account of the birth of a posthumous child, it will be best for the said guardians to be appointed for the ward, for the purpose of claiming the inheritance of the intestate.

32Paulus, Opinions, Book IX. I ask whether anyone can appoint as testamentary guardians citizens who do not reside in the same town as the ward. Paulus answered that he can do so. 1Paulus also gives it as his opinion that a man who has been appointed guardian on account of his knowledge of certain matters, can legally be sued with reference to everything pertaining to the administration of the office, just as other guardians appointed by the same will. 2Lucius Titius appointed his minor children his heirs, and appointed guardians for them in the following words: “Gaius Mævius and Lucius Eros shall be the guardians of my children”. But he did not bequeath his freedom to Eros, who was a slave. The latter, however, was under the age of twenty-five years, and I ask whether he could claim his freedom. Paulus gave it as his opinion, that as it had been decided that a slave who was appointed a guardian by his master is considered to have deserved his freedom, he also, with respect to whom the inquiry is made, should be considered to be in the same position, and therefore should be free as soon as the estate was entered upon, and should be entitled to the guardianship when he attained lawful age.

33Javolenus, On the Last Works of Labeo, Book VIII. Certain guardians were appointed as follows: “I appoint Lucius Titius guardian, and if he should not be living, I then appoint Gaius Plautius”. Titius lived and administered the guardianship, and afterwards died. Trebatius denies that the guardianship belongs to Plautius; Labeo holds the opposite opinion, and Proculus agrees with him; but I have adopted the opinion of Trebatius because the words of the testator have reference to the time of death.

34Scævola, Digest, Book X. A testator appointed other guardians by a codicil because those whom he had appointed by will were either dead, or had offered good excuses for declining to accept the trust. Shall the surviving guardians, who were not excused, still remain in office? The answer was that there was nothing in the facts stated to prevent them from continuing in office.