boards charged with the supervision of orphan children,[1] which so early as the middle of the fifteenth century were already in existence in most of the towns of Holland.[2] Their functions were variously defined by the keuren of the various towns. Strictly speaking, their authority was co-ordinate merely with that of the testamentary guardian,[3] but they constantly tended to supervise[4] and sometimes to encroach upon[5] his functions. Thus in the town of Alkmaar, testamentary guardians must be confirmed by the Orphan Chamber, though as a rule such guardians did not require confirmation.[6] Consequently it was the common practice of testators when appointing guardians by will to express in clear terms their wish to exclude the Orphan Chamber from interference with the estate.[7] Even this did not always produce the desired result.[8]
Is a surviving parent ipso jure guardian?
The word ‘guardianship’ is not free from ambiguity, for it implies sometimes guardianship of the person, sometimes administration of the property, sometimes both. Where property alone is concerned the term ‘curatorship’ may be employed. But it is not always easy to distinguish the two functions, for the person who controls the property tends also to control the person.- ↑ i.e. of minor children who had lost one or both parents (Gr. 1. 7. 2); sometimes also of onbestorven kinderen (Gr. 1. 6. 1).
- ↑ Hoola van Nooten, vol. i, p. 550.
- ↑ Ibid. pp. 564 ff.
- ↑ Gr. 1. 9. 2.
- ↑ Van Leeuwen, 1. 16. 3.
- ↑ This is implied by Van Leeuwen, who mentions the case of Alkmaar as exceptional; but in Cens. For. 1. 1. 17. 3 he says: hodie omnes omnino tutores ex inquisitione dantur aut confirmantur. See Voet, 26. 3. 1 and 26. 7. 2 (ad fin.). It appears from Van der Keessel (Th. 116) that the practice varied. In South Africa confirmation is always necessary (Administration of Estates Act, 1913, sec. 73), provided that a father or mother does not require letters of confirmation (Ibid.).
- ↑ Hoola van Nooten, vol. i, p. 567; V. d. L. 1. 5. 2–3.
- ↑ Van Leeuwen, ubi sup. The Orphan Chamber was abolished in Cape Colony by Ord. 103, 1833, which vested its functions in the Master of the Supreme Court. In South Africa Orphan Chambers exist at the present day and the administration of estates is often left to them, but they are not official and no longer appoint guardians. They are in fact merely Trust Companies. In Brit. Gui. the Orphan Chamber was abolished by Ords. Nos. 17 and 18 of 1844, which created in its place the office of Administrator-General.
