Tryphoninus, 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.

Tryphoninus, Disputations, Book XIV. In the case of confirmation of a guardian, the Prætor should ascertain whether the intention of the father continued to exist. This is readily done where the latter illegally appointed either guardians or curators, at the time of his death; for if he appointed them several years before, and, in the meantime, a diminution of the property of the parties illegally appointed by him has taken place, or their bad character previously concealed, or unknown, has been discovered, or where hostility against the father has arisen;

Tryphoninus, Disputations, Book XIV. The Prætor shall consult the interest of the wards, and not inflexibly adhere to the terms of the will or the codicil, as he should consider the intention of the father, where he was not ignorant of those things which the Prætor himself has learned concerning the guardians. Finally, what if, after the father has illegally appointed a guardian by a will or codicil, he should say that he was unwilling for him to act as guardian? Then, indeed, the Prætor should not carry out the first wishes of the father which he subsequently abandoned.

The Same, Disputations, Book XLII. Ad Dig. 26,7,55 pr.Windscheid: Lehrbuch des Pandektenrechts, 7. Aufl. 1891, Bd. II, § 443, Note 10.Three guardians were appointed for a ward; one of them administered the guardianship, and became insolvent; the second committed it to the charge of Titius, who transacted some of the business; and the third did not, in any way, concern himself with the administration. The question arose, to what extent was each of them liable. As a common responsibility attaches to guardians in the administration of their trust, all of them would be liable for the entire amount. It is clear that if money belonging to the ward was distributed among them, each will not be liable for a larger sum than he received. 1Where, however, the guardians themselves have stolen the property of the ward, let us consider whether each one of them will be liable for the entire amount, in the action for double damages established by the Law of the Twelve Tables. And, even though one of them may have paid double the value of the property, still the others will also be liable; for where there are several thieves who have stolen the same article, the others are not released from the penalty for the reason that it has been exacted from one of them. Guardians, however, on account of their having been entrusted with the administration, are rather held to have acted perfidiously than to have taken the property without the consent of the owner. Finally, no one can say that one guardian is liable for double damages in an action of this kind, and, as it were, by means of a species of action for recovery also be compelled either to surrender the property itself, or to pay its value. 2Therefore, a guardian is not only considered to have administered the guardianship, where he directed another to do so for him; but also where he took security from his fellow-guardian for the preservation of the estate, and then entrusted to him the administration of the entire guardianship. Nor can he defend himself by means of the constitution which directs that the party who administered the trust shall be sued first. 3Moreover, where no one has attended to a part of the business of the administration, he who has administered other affairs pertaining to it will not be liable for what has been neglected, but responsibility for all will attach to the guardians in common. Responsibility for other things which he did not attend to cannot, however, be required of one alone, unless they are of such a character that, after having been begun, they should have been finished by him, or where they have been so connected with those of which he had charge that they should not have been separated from them. 4But when it is said that guardians are responsible where a fellow-guardian becomes insolvent, or was not solvent at the time of his appointment, let us see how this should be understood; that is to say, whether it will be sufficient if the resources of their fellow-guardian were not diminished to any extent from the time of his appointment, but the amount of his paternal estate remained the same? Or, even though nothing happened subsequently which would manifestly cause a diminution of the estate, should a guardian, nevertheless, investigate the property of his fellow-guardian? This, however, should receive another construction dependent upon the standing of the person, and the time which had elapsed since the execution of the will; for where the party is a notorious spendthrift, or one whose property has been sold, he should not be permitted by his fellow-guardian to administer the trust, even though, having taken the Prætor unawares, the latter appointed him by a decree, and his father had ignored any accident which may have happened to him after the execution of the will, or intended to change his will, but did not do so.

Tryphoninus, Disputations, Book XIV. When a guardian is absent, and a ward applies for maintenance, and negligence and want of care are imputed to the former in the administration of his trust, and in support of this it is proved that, on account of his absence, the affairs of the ward have been neglected and abandoned, the relatives and friends of the guardian having been summoned, and a judicial inquiry instituted even in the absence of the guardian, the Prætor shall issue a decree that he who seems to be worthy of such a mark of ignominy shall be removed, or that a curator shall be joined with him; and he who is appointed must provide maintenance for the ward. When, however, the absence of the guardian was necessary, and happened through accident (for example, where he suddenly made a journey to be present at a judicial inquiry in behalf of the Emperor; and was unable to arrange for the care of his own property, or to attend to the interests of his ward), and his return is expected, and he is solvent, it is not expedient for another to be joined with him as curator; but if the ward demands maintenance out of his own property, a curator can legally be appointed for this sole purpose, namely, to provide support for the ward out of his own estate.