§ 146. A grandson or grand-daughter can only receive a testamentary guardian provided the death of the testator does not bring them under parental power. Accordingly, if at the time of 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 self-successors], for such after-born children may be instituted heirs, but not 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 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 choosing a guardian an indefinite number of times; limited option is the right of a single choice, or of two choices, as may happen.
§ 154. A guardian actually nominated by the will of the testator is called a dative guardian; one taken by selection (of 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 of acting independently 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, tutelary wardship, curatel, were different in character and 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, ut Servius definit, 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 (rem gerere et auctoritatem interponere). Up to the age of seven the ward was called infans, 3 § 109, 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, as the time was ultimately fixed, twelve for females) the ward acted, and the guardian concurrently gave his sanction (auctoritas). The sanction of the guardian was a legal act of a highly formal character (actus legitimus), by which such legal acts of his ward, as would otherwise have been imperfect, obtained validity. Accordingly the guardian could not give his sanction by letter or through an agent, but had to be present himself for the purpose at the time when the act of the ward was executed, so that he might be a subsidiary party to it. Inst. 1, 21, 2 Tutor autem statim in ipso negotio praesens debet auctor fieri, si hoc pupillo prodesse existimaverit. post tempus vero aut per epistulam interposita auctoritas nihil agit.
The sanction of the guardian was necessary whenever the act of the ward was one which might possibly entail loss, but not otherwise. Cf. 2 §§ 80-85, Inst. l. c. pr. and 1 Auctoritas autem tutoris in quibusdam causis necessaria pupillis est, in quibusdam non est necessaria. ut ecce si quid dari sibi stipulentur, non est necessaria tutoris auctoritas: quod si aliis pupilli promittant, necessaria est: namque placuit meliorem quidem suam condicionem licere eis facere etiam sine tutoris auctoritate, deteriorem autem non aliter quam tutore auctore. unde in his causis, ex quibus mutuae obligationes nascuntur, in emptionibus venditionibus, . . . si tutoris auctoritas non interveniat, ipsi quidem, qui cum his contrahunt, obligantur, at invicem pupilli non obligantur In respect of administration of property the guardian incurred a quasi-contractual obligation, and was accordingly liable to the judicium or actio tutelae.
In the time of Gaius, women continued subject to guardianship after the age of puberty: the functions of the guardian were in their case confined to auctoritas, which in most cases was a mere formality; the power of administration vested in the woman, § 190.
§ 147. For an account of the different classes of Postumi see 2 § 130, comm.
§ 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.
§ 154. In the Code and Digest of Justinian the term tutor dativus is used to signify a guardian appointed by a magistrate. Cod. 5, 50, 5; Dig. 46, 6, 7.
DE LEGITIMA AGNATORVM TVTELA.
§ 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 persons related 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. Persons related through female ascendents are not agnates but simply cognates. Thus, between an uncle and his sister’s son there is not agnation, but cognation: so the son of my aunt, whether she is my father’s sister, or my mother’s sister, is not my agnate, but my cognate, and vice versa; for children are members of their father’s family, 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 a female cannot have such a guardian.
§ 158. Capitis deminutio extinguishes rights by agnation, while it leaves unaffected rights by cognation, because civil changes can take away rights belonging to civil law (jus civile), but not rights belonging to natural law (jus naturale).
§ 156. As to this definition of agnati see Moyle’s note to Inst. 1, 15, 1. The maxim here enunciated is calculated to give a false idea of the relation of the institutes of jus gentium to those of jus civile. Title by cognation is just as much an institute of positive law as title by agnation, though cognation, or blood-relationship, is in itself a natural and permanent tie, while agnation is an artificial one, and therefore only occasional. The synthesis of title and right in jus civile may be freakish and capricious, while that in