An Introduction to Roman-Dutch Law/Book I/Chapter IV

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Chapter IV


Guardianship. In the Institutes of Justinian under the titles of tutela and cura are considered two several institutions designed by the law for the protection of persons who, though not subject to parental control, are nevertheless on account of immaturity of years or for other like cause incompetent to be in all respects their own masters. The first of these, tutela, related to young persons alone, and ended with puberty. The second, in the case of young persons, extended from the fourteenth to the twenty-fifth birthday, and was also applicable to the case of lunatics and prodigals.

In Roman-Dutch Law there is one kind of minority only; which, as we have seen, now ends by statute at twenty-one. The distinction between tutela and cura has therefore largely disappeared.[1] But the terms tutor and curator are still retained to denote various cases of control.

In this chapter we shall consider: (1) the different kinds of guardianship and how guardians are appointed; (2) who may be guardians; (3) the powers, rights, and duties of guardians; (4) actions arising out of guardianship; (5) how guardianship ends.

Section 1.—The Kinds of Guardians and the Appointment of Guardians

The kinds of guardians: In Roman Law three principal kinds of guardians were recognized: (1) Tutores testamentarii, i.e. guardians appointed to minors in his power by the father or other male ascendant; (2) Tutores legitimi, i.e. the nearest agnatic (afterwards cognatic[2]) relatives of the minor, who acted in default of testamentary appointment; (3) Tutores dativi, i.e. guardians appointed by the magistrate in default of either of the first two classes.

(a) Tutors testamentary. In early Germanic Law testamentary guardians were unknown, but fathers sometimes, before their death, committed the care of their minor children to persons in whom they confided;[3] failing these, some near relative or relatives were considered to be entitled to the guardianship; failing these, again, an appointment was made by the King and in later times by the Count or other feudal lord, who also claimed the prerogative of confirming guardians belonging to either of the first-named classes. This prerogative right was the source of the upper guardianship (opper-voogdij) of minors, which in later Dutch Law and also at the present day is vested in the Court.

The Roman-Dutch Law here, as elsewhere, has worked the principles of the Civil Law into the original Germanic fabric. When in later times testaments came into use, testamentary guardians began to be appointed, and the phrase was taken to include guardians appointed, whether in an ante-nuptial settlement or by other judicial or notarial act inter vivos,[4] and that by the mother no less than by the father of the minor children.[5]

(b) Tutors assumed. A special variety of testamentary guardian was the assumed or substituted guardian, i.e. a guardian named by a testamentary guardian, by virtue of a special authority conferred upon him in that behalf, to act either together[6] with such testamentary guardian, or in substitution for him, particularly in the event of his death.[7]

The guardianship of blood relations, Failing testamentary guardians, the guardianship or the appointment of guardians devolved upon the nearest relatives of the minor and, in particular, as Grotius[8] tells us, went to the ‘four quarters’ (vier vieren-deelen), i.e. to the nearest of kin on the side of each of the four grand-parents. ‘Afterwards, however,’ he continues, ‘it was thought better that guardians should be appointed by the authorities, that is, by the Court of Holland, by the town and country Courts, or by the Orphan Chambers,[9] which are in several places charged with that duty, the upper guardianship of orphans remaining, however, in the Court. These authorities are accustomed and bound in appointing guardians to take the advice of the nearest relatives, and to choose the guardian from amongst them so far as this can be done with advantage to the wards.’

unknown in the modern law. The consequence of the change described by Grotius was to extinguish the last survivals of the old Germanic guardianship of blood-relations as a separate institution, so that Grotius and Voet are able to speak of ‘born’ or ‘lawful’ guardians as no longer recognized by the common law of Holland.[10] (c) Tutors dative. All guardians thenceforward were either: (1) testamentary; or (2) appointed;[11] and the intermediate class of ‘legitimi tutores’ disappears.[12] Over both of these classes, it is important to remember, subsists the upper guardianship of the Sovereign exercised through the Courts of Justice.

Orphan Chambers. At this point something may conveniently be said with regard to the Orphan Chambers. These were official boards charged with the supervision of orphan children,[13] which so early as the middle of the fifteenth century were already in existence in most of the towns of Holland.[14] 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,[15] but they constantly tended to supervise[16] and sometimes to encroach upon[17] 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.[18] 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.[19] Even this did not always produce the desired result.[20]

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. This is seen when we consider the relation of guardians testamentary or dative to a surviving spouse. Guardianship certainly does not exclude the parental power,[21] but neither is it excluded by it. A surviving parent, it must be remembered, was not, as such, guardian of the property of his or her minor children,[22] however much parental power might imply control of the person. Accordingly such parent, unless appointed by the deceased spouse[23] or by the Orphan Chamber or Court,[24] could not lawfully intermeddle with the estate.[25] This seems somewhat extreme in the case of the father, who having been sole administrator of the minor's property during the subsistence of the marriage, might reasonably expect to continue to exercise the same functions after his wife's death, at all events as regards property not coming to the child ex parte materna. The reasonableness of this claim is recognized by the law of South Africa, which gives the father the exclusive control of the person and also of the property of his minor children, during the whole of his life, and even permits him to bestow equally extended powers upon guardians appointed by his will to act after his death.[26] This would seem to exclude the mother altogether from the control of the persons of her own minor children,[27] which in the Dutch Law she exercised concurrently with the testamentary guardians.[28]

On the other hand, when no testamentary guardians have been appointed she is solely entitled to the control of the person to the exclusion of guardians dative.[29] After the death of both parents the guardians, whether testamentary or dative, exercise personal control and also administer the property conjointly.[30]

In South Africa the appointment of tutors dative is vested in the Master of the Supreme Court, subject to review by the Court.[31] The same official confirms testamentary tutors,[32] and supplies casual vacancies in case of death, incapacity, or removal.[33]

(d) Curators nominate. A testamentary tutor, as we have seen, is appointed by parents only. But it is permitted to any person whomsoever who gives or bequeaths property to a minor or insane person to direct at the same time that some specified person shall administer it.[34] A person so appointed is termed a curator nominate,[35] and if a curator nominate is expressly empowered to appoint another to act as co-guardian, (e) Curators assumed.such other becomes (after confirmation) a curator assumed.[36]

(f) Curators dative. Curators dative are appointed by the Court (in South Africa upon the application of the Master or of some person interested) to insane persons or prodigals,[37] either for the care of the person, or the administration of the property, or both.[38] (g) Curators bonis. In case of minor disqualifications such as deafness, dumbness, or the like,[39] curators bonis may be appointed whose functions will be limited by the requirements of the particular case.[40]

(h) Curators ad litem. Curators ad litem are appointed to a minor or insane person or prodigal, for the purpose of bringing or defending an action, when such minor has no other guardian or curator, or where the guardian or curator is a party to the litigation.[41]

The various kinds of guardian, then, are: (1) tutors testamentary; (2) tutors assumed; (3) tutors dative; (4) curators nominate; (5) curators assumed; (6) curators dative; (7) curators bonis; (8) curators ad litem; and they are appointed in the ways above described.

Section 2.—Who may be Guardians

Some persons are disqualified from being guardians. Van der Linden says that some persons are prohibited from being guardians; others may excuse themselves.[42] To the first class he assigns: (1) persons who are themselves subject to tutela or cura,[43] with whom must be included all persons less than twenty-five years of age, although majority may have been anticipated by marriage or venia aetatis;[44] (2) women, except a mother and grandmother, and they only so long as they have not contracted a second marriage;[45] (3) creditors and debtors of the minor, if the debt is considerable and the Court sees fit to exclude them.[46]

To these the laws of the Cape and of the Transvaal add: (4) any person who as witness has attested the execution of any will which appoints such person guardian, and the wife or husband of such person.[47]

Others may excuse themselves; The second class includes: (1) soldiers;[48] (2) persons already burdened with three guardianships; (3) persons upwards of seventy years of age; (4) persons disqualified by sickness or infirmity. This list is not exhaustive; nor by the common law can any one claim exemption as of right. In fact, no rigid rule can be laid down; for in the modern law the whole matter lies in the discretion of the Court.[49] but in South Africa guardianship is voluntary. In South Africa, however, excuses are unnecessary, for guardianship is at the present day a purely voluntary office, which no one can be compelled to undertake against his will.[50] This marks a departure from the Roman-Dutch common law, according to which every one who was named guardian was bound to accept the office, and in the case of unwillingness could be compelled to undertake it by civil imprisonment.[51]

Section 3.—The Powers, Rights, and Duties of Guardians

The duties and functions of guardians: Without seeking to distinguish too exactly between the duties and the powers or rights of guardians, we may classify their functions of whatever kind under the following heads.

(1) To find security; 1. The duty to find security. In Holland practice varied in different localities. Van der Linden says:[52] ‘The practice of guardians finding security is in our law fairly out of use, though where there are weighty reasons for doing so the Court may demand it.’ But in South Africa, by the Administration of Estates Act, 1913, s. 82, every tutor and every curator now gives security, except only a testamentary tutor or a curator nominate when: (a) he is the parent of the minor; or (b) has been nominated by will executed before the commencement of the Act (October 1, 1913), and has not been directed by the will to find security; or (c) has been nominated by will executed after the commencement of the Act and the testator has directed the Master to dispense with security; or (d) the Court otherwise directs.

(2) to make an inventory; 2. Inventory. Guardians must make a full inventory of the estate which they are to administer, or demand an inventory from a surviving parent.[53] In South Africa every tutor and every curator must make such inventory within thirty days[54] of the date of his entering on office. If a guardian fails herein, he is liable (besides other penalties)[55] to removal; as he is, also, if he wilfully omits items of credit or inserts false items of debit.[56] A surviving parent who, in preparing the inventory, fraudulently conceals any property forfeits his or her interest therein.[57] A similar inventory must be made by parent or guardian in the event of any property coming to a minor from any source whatever, e. g. by testament, either during the lifetime of both parents or after the death of one or both of them.[58] The inventory when complete must be delivered to the Orphan Chamber,[59] or in Cape Colony to the Master of the Supreme Court.

(3) to distribute the estate; 3. Distribution of the estate. The next duty of the guardian (and this is the object of the inventory), is, subject to the control of the proper authority, to see that each child has assigned to him his proper share in the property in question.[60] This done, the guardian proceeds to deal with the estate of the minors in his charge, retaining it under his own control as administrator, or placing it in the hands of the proper authority, according to the requirements of the local law.[61] A surviving parent may not under any circumstances proceed to a second marriage, without first assigning to the minor children of the first marriage their proper shares in the joint estate[62], or at all events giving security for their future payment. In South Africa this security takes the form of a notarial general mortgage-bond passed by the surviving spouse. It is known as a deed of Kinderbewys.[63]

(4) to maintain and educate the minors; 4. Maintenance and education. All preliminaries being properly settled, it is next the duty of the guardian to provide for the maintenance and education[64] of the ward according to the directions of the father, if he has left any, and, failing such, to see that the child is educated by the mother or other near relations.[65]

The guardian must take care that his expenditure in this regard keeps well within the limits of the annual income of the estate, unless in very special circumstances, which should be made the subject of an application to the Court.[66]

(5) to administer the property; 5. Administration of the ward's property.[67] This includes the general supervision and management of the minor's estate, in which task the guardian must display the diligence which a bonus paterfamilias applies to his own affairs.[68] His expenditure must be such as is demanded by the interest and credit of the minor, regard being had to the value of the estate and the minor's position in life.[69] He must preserve and secure the property,[70] call in and enforce debts,[71] invest in good securities,[72] and meet the minor's liabilities as they fall due. When the guardianship comes to an end, the guardian must properly wind up the business of his office, and is deemed to remain guardian for the purpose.[73] Where there are more guardians than one, it is not necessary that they should all act; but, whether he acts or not, each is responsible for the acts of every other.[74]

(6) not to alienate immovables without leave of Court; 6. Alienation of property. A guardian may, in due course of administration, sell[75] or mortgage any movable property under his charge. But the alienation or hypothecation of immovable property, except by leave of the Court,[76] is entirely void. Such leave is only given after full inquiry, and it is, besides, usual to consult the nearest relatives.^ The measures proposed must be necessary for payment of debts, maintenance, or marriage, of the ward, or otherwise to his manifest advantage.^ The word ' immovables ' extends to such incorporeal rights as are commonly included under the term immovable property, and to the cession of rights of action relating to such property.^ Alienation includes any act of the guardian whereby a real right of the ward is in any way diminished, lost, or aban- doned.* Failing a judicial decree (where such is necessary) everything that takes place m the course of or incidentally to such alienation is ipso jure null and void.* The same applies if the decree is shown to have been obtained from the Court by fraud.* The prohibition of the sale of immovables is stated by Grotius to extend to money put out at interest and rents.' Van der Keessel says that the same rule ought to be laid down in respect of public Dutch or foreign securities.* Voet goes still further and adds to the hst all movables which are not perishable in their nature [quae servanda servari possunt),^ as gold, silver, and jewellery, whereas perishable movables the guardian not only may sell, but must.^" It appears that by the law of Holland even movables could not be sold without proAdous notice to the Orphan Chamber (unless this were expressly excluded), and by pubhc auction.^^ In the case of immov- ables also the sale must be by public auction. Otherwise (which is not the case with movables) the sale will be void. In both cases the guardian is answerable ui damages. ^^

Voet, 27. 9. 7 ; and the Weeskamer. V. d. K. Th. 131. 
Voet, 27. 9. 7-8. » Voet, 27. 9. 2. 
  • Voet, 27. 9. 3. But short leases are permitted and bind the ward

even after majority. Voet, 19. 2. 17.

Gr. 1. 8. 6. 8 Voet, 27. 9. 9. 

' Renten ende pachten. 6r. 1. 8. 6.

V. d. K. Th. 130. » Of. Cod. 5. 37. 22. 6. 

i» Voet, 27. 9. 1. But see V. d. K. Th. 130. " Gr. 1. 8. 5 ; Van Leeuwen, 1. 16. 8 ; V. d. K. Th. 129. 12 Gr. 1. 8. 5-6 ; Van Leeuwen, 1. 16. 9. GUARDIANSHIP 57 In South Africa by the Administration of Estates Act, South 1913, sec. 87, no tutor and no curator (other than a tutor f^gnatlon testamentary or a curator nominate duly authorized ofimmov- thereto by the wiU or deed under which he has been appointed) shall alienate or mortgage any immovable property belonging to a minor unless the Court or, when the Master is satisfied that the immovable property does not exceed three hundred pounds in value, unless the Master authorize the alienation or mortgage of such property. But the Master may authorize the mortgage of immovable property belonging to a miaor to an extent not exceeding three hundred pounds, if satisfied that the mortgage is necessary for the preservation or improvement of the property, or for the payment of expenses necessarily incurred in connexion therewith, or for the maintenance or education of the minor. The same Act by sec. 86 saves the common law as regards the powers and duties of tutors except so far as they are affected by that Act. But it is submitted that in regard to the sale of the ward's property the principle ' Expressio unius est exclusio alterius ' holds, and therefore all that is required of the guardian in alienating his ward's movable property ia that he should exercise a wise discretion and in matters of difficulty seek the guidance of the Court.^ The ward's remedies in respect of unauthorized aliena- Kemediea tion are two: against the tutor and against the aHenee. o"un^au- Against the first he has the actio tutelaedirecta. From the thorized second he may vindicate the property (together with aU tion. fruits, if the defendant's possession is mala fide ; but if it is bona fide together with fruits existing at the date of action 'brought) . If, however, the purchase-money has been received and applied to the m i nor's use, it must be refunded with interest as a condition precedent of the return of the property .^ A sale of immovable property made by a minor without judicial decree and without his guardian's authority caimot be impeached on behalf of

In Brit. Gui. a guardian may dispose of valuable movables with- 

out leave of the Court [G.]. ' Voet, 27. 9. 10. 58 THE LAW OP PERSONS such minor, where the minor has falsely represented him- self as of full age.^ Ratifica- An alienation void ab initio may be ratified on fuU age. voMalie E,atification is express or tacit. An example of tacit ations. ratification is when the ward, having reached full age, claims the purchase-money from the guardian ia an actio tutelae; or when the ward after majority allows a certaia time, which varies with the circumstances, to elapse without asserting his right.^ When ratification has taken place the transaction may, in Roman-Dutch Law, still be rescinded on the ground of laesio enormia,'* but in the Cape Province and in the Orange Free State this is no longer law.* (7) to 7. Accounts. The guardian must render annual or counts ^' ^^^^^ periodic accounts as required by law to the proper authority.^ If the testator has remitted this duty, the Court or other authority may none the less in its discretion insist upon it.^ (8) tore- 8. Bepresenting the minor in Court. A minor has no thrmLor persona standi in judicio.' He must therefore be repre- in Court ; sontcd or assisted by his guardian in any proceedings to which he is a party, whether as plaintifE or defendant.^ If the guardian is himself a party to the proceedings the ward obtaias a curator ad litem.' No doubtful action may be brought by a guardian ia the name of the ward

Voet, 27. 9. 13(ad^»i.). 
Voet, 27. 9. 14. If the alienation was made for value the period 

is five years ; if donationis titulo, ten years irUer praesentee, twenty inter absentes. Cod. 6. 74. 3.

Voet, ibid, {ad fin.) ; Cod. 4. 44. 2 and 8. 
  • Cape, Greneral Law Amendment Act, No. 8, 1879, sec. 8 ; O.F. S.

Ord. No. 6 of 1902, sec. 6. The doctrine of laesio enormis is still in force in the Transvaal, Natal, and Brit. Gui. See below, p. 203, n. 3.

Gr. 1. 9. 12 ; Hoola van Nooten, vol. 1, p. 583 ; V. d. K. Th. 120 

and 157; 1 Maasdorp, p. 256.

  • Van Leeuwen, 1. 16. 6.

' Gr. 1. 7. 8 ; V. d. K. Th. 127 ; V. d. L. 1. 5. 5. In Brit. Gui., by Ord. No. 11 of 1893, sec. 6, a minor may bring an action in his own name for a sum of money not exceeding one hundred dollars, which may be due to him for wages or piece-work, or for work as a servant. If the action fails, he is liable for costs [G.]. " Gr. 1. 8. 4 ; Voet, 26. 7. 12. » Gr. vhi sup. GUARDIANSHIP 59 without previous sanction of the Court ; ^ otherwise, if the ward fails in the suit, the guardian will be liable to pay the costs himself.^ In all other matters of impor- tance too, says Van der Linden,* the Court should be consulted. . Contracting in the name 0/ the minor. Guardians have (9) to con- the right to contract on behalf of their wards, but must thTname proceed with particular caution, otherwise they wiU be oithe liable in damages.* By such contracts the wards acquire ' rights and incur liabilities. They may sue and be sued on the contracts entered into by their guardians,^ saving, however, their right to restitutio in integrum, if they have been prejudiced thereby ; which right they must prosecute within four years after attaining majority.® It seems that a guardian who has contracted nomine pupilli is him- self alternatively liable to the other contracting party ; though if the contract was a proper one, he wUl be entitled to an indemnity from the estate. A ward is not bound by a donation made by his guardian or by a release of a manifest right.* . Authorizing the minor's acts. Finally, it is the duty (lo) to of the guardian (and the law gives him power) to 'interpose l^^ °"^^ his authority ', that is, to assist and represent the minor minor's in all transactions ; and in particular, as has been seen, to represent biiTi in Court. ' Authority ' in Roman Law ^ Or subsequent allowance by the Court ?

Voet, uU sup. =" V. d. L. 1. 5. 3. Of. Gr. 1. 9. 2. 
  • Gr. 1. 8. 7 ; 3. 1. 30 ; Voet, 26. 9. 1-2.
Gr. 1. 8. 8 ; V. d. K. Th. 133 ; and see Cod. 5. 39. Senible, if a 

guardian contracting on behalf of his ward, has acted fraudulently, the ward is not liable, except : (1) to the extent of his enrichment ; (2) in the absence of enrichment only if the guardian is solvent, so that the ward can have recourse against the guardian's estate ; and the ward can always free himself by ceding his actions against the guardian. Gr. 3.1.30; Voet, 26. 9.4.

Cod. 2. 52 (53) 7. pr. ; Voet, 44. 3. 6-7. 

' Voet, 26. 9. 3 ; but generally only during the continuance of the guardianship. Cf. Cod. 5. 39. 1. .

Gr. 3. 1. 30 and 3. 2. 7 ; unless it be a remuneratory d.onation. 

Gr 3. 2. 3. Guardians may make a novation in the name of their wards, if for the wards' benefit. Voet, 46. 2. 8. Guardians may compromise on behalf of their wards provided they do not thereby effect an aliena- tion of the ward's property. V. d. K. Th. 517. 60 THE LAW OF PERSONS meant a present consent to and approval of what is done by the ward, but in the modern law a subsequent ratifica- tion will have the same effect as a contemporaneous authority.^ Where there are several co-tutors the author- ity of one alone is generally sufficient.^ If the guardian withholds his authority the Court will in a fit case compel it.' A male or female minor upwards of fourteen or twelve years of age requires no authority to make a wiU,* nor is a marriage contracted without authority of the guardian invahd.^ Thus far of the powers , rights , and duties of the guardians of minors. Since the functions of the curators of lunatics and interdicted prodigals are generally similar,® it is unnecessary in an elementary treatise to make them the subject of special discussion. Section 4. Actions arising out of Guabdianship The actio Two actions arise out of guardianship, the one by the d^cta ward against the guardian {actio tutelae directa), the other and con- by the guardian agaiast the ward {actio tutelae contraria). The first is available to the ward and his heirs' against the guardian and his heirs,® and against each guardian in solidum (saving that on satisfaction by one the others are released), to render an accotmt of his administration,^ to transfer everything which by virtue of the guardianship has come under his control ; ■^" and also to make good all losses caused to the minor by his bad management. The contrary action lies for the guardian and his

Voet, 26. 8. 1. 2 Voet, 26. 8. 7. 

^ Voet, 26. 8. 8, i. e. morihus. It was otherwise jure civili. Dig. 26. 8. 17.

  • Gr. 1. 8. 2. 5 Qr. 1. 8. 3.

» Gr. 1. 11. 5 ; Voet, 27. 10. 5 ff. ' Voet, 27. 3. 4 ; also to the husband of a minor against her former guardians and in some cases to creditors.

  • Voet, 27. 3. 5 ; or other successors.

» Voet, 27. 3. 7.

  • Voet, 27. 3. 8 ; including claims arising ex contractu. Gr. 3. 1. 38.

The emancipated ward may sue in respect of such claims without cession of the right of action. V. d. K. Dictat. ad loc. ; Dig. 26. 9. 2. GUARDIANSHIP 61 heirs ^ against the ward and his heirs to be indemnified for expenses ^ and to recover a reasonable recompense for his time and trouble.^ In the Civil Law these actions only lay after the termina- tion of the guardianship,* but in the modern law they may be brought, when necessary, also during its continuance.^ The statement made above that each tutor is liable in Extent solidum must be understood subject to the law as to the '^^^^' benefit of excussion and the benefit of division. Where liability. one tutor alone has acted he must be sued before the rest, who otherwise can plead the beneficium excussionis. Where more than one tutor have acted, any one of the acting tutors may be sued, but by pleading the beneficium divisionis he can divide his liability with the other tutors who were solvent at the earliest time at which the pupil could properly have sued. Where different duties of administration have been assigned by the testator, or the judicial authority, between various tutors, each is, gener- ally speaking, liable only for his own particular sphere of duty.^ In addition to the above actions the Civil Law gave other ac- various other remedies or securities to the minor, more ^o^an particularly: (1) the action 'rationibus distrahendis ' ; ' Law. (2) an action against the magistrate by whom the guardian has been appointed ; * (3) the crimen suspecti ^ for the

Voet, 27. 4. 2. ^ yoet, 27. 4. 3-6. 

' V. d. L. 1. 5. 6. In the Civil Law the office of tutor was unpaid. Dig. 26. 7. 33. 3. In R.-D. L. a reasonable remuneration was allowed except to parents. Gr. 1. 9. 11 ; Voet, 27. 4. 12. The amount was usually fixed by local statutes. V. d. K. Th. 156.

  • Dig. 27. 3. 4, pr. and 27. 4. 1. 3.

' Groen. de leg. abr. ad Dig. 27. 3. 4. « Van Leeuwen, 1. 16. 12 ; Voet, 27. 8. 6. ' With regard to losses occasioned by omissions, all the guardians are liable in solidum, and though they may claim the benefit of division as between themselves, are not entitled to the benefit of excussion. 1 Maasdorp, p. 259 ; Nie- kerk v. Niekerk (1830) 1 Menz. 452. ' Dig. 27. 3.1. 9; 27.3.2. ^ Dig. 27. 8. 1. This action was given by a S. C. of the time of Trajan. Cod. 5. 75. 5. " Inst. lib. l,tit. 26 : Sciendum est suspecti crimen e lege duodecim tabularum descendere. 62 THE LAW OF PERSONS removal of guardians on the ground of misconduct actual or anticipated ; (4) a tacit hypothec or legal mortgage upon the whole of the guardian's estate.^ The action rationibus distrahendis, ' for separation of accounts ', which was as old as the Twelve Tables,^ applied only to those who during their administration had carried ofE something from the ward's estate.^ It lay for twice the value of the thing taken. Voet seems to treat this remedy as still existing, but Groenewegen says that the penalty of double was disused.* In the Civil Law a subsidiary action lay in certain cases against the magistrates, when the ward had failed to obtain satisfaction from the guardian appointed by them.® Whether this action subsisted in the Roman- Dutch Law was much debated. Voet and others ® allowed it in case of fraud or gross negligence. But the Orphan Chamber, at aU events, was answerable for the moneys of minors committed to its keeping.' Removal With regard to the removal of guardians the Court, as diaM^'^ ^^^ upper guardian, has a wide judicial discretion,^ exer- cised usually OR the complaint of a co-guardian or near relatives of the ward.^ Incapacity, dishonesty, or insol- vency are the most frequent grotinds of removal. In South Africa the final order for sequestration or assign- ment of the guardian's estate ipso facto determines the office of tutor or curator.^" The Lastly, wards have a legal or tacit hypothec over the r^'t'h property of their tutors or curators in respect of debts pothec.

Cod. 5. 37. 20 (Constantine, a.d. 314). 
Dig. 26. 7. 55. 1. 

' Dig. 27. 3. 2.

Groen. de leg. abr. ad Dig. 27. 3. 2. 2, and Cod. 9. 47 (rubric). 
Inst. 1. 24. 2. 

" Van Leeuwen, 1. 16. 4, and Decker's note ; Cens. For. 1. 1. 17. 4 ; Voet, 27. 8. 5 ; Groen. de leg. abr. ad Inst. 1. 24. 4 ; Vinnius, ibid. ' Decker ad Van Leeuwen, 1. 16. 4. « Voet, 26. 10. 2. » Gr. 1. 10. 4. " Administration of Estates Act, 1913, sec. 84 ; and see sees. 32 and 73. But semhle, it was not so by the common law. See De VilUers V. Stuckeris (1829) 1 Menz. 377. GUARDIANSHIP 63 due to them arising out of the administration and to the extent of loss attributable to the guardian's misconduct.^ By the Roman-Dutch Law this extends to the property of all tutors (natural, testamentary, or appointed) and cura- tors, as well as of protutors,^ i. e. persons who have acted as tutors without appointment or confirmation, and of agents and others who have concerned themselves in the administration of the minor's estate. Further, the liability attaches to a step-father who has married a mother-tutor before she has wound up the tutorship and settled her accounts ; also (senile) to the wife, married in community, whose husband has, during the marriage, undertaken the duties of guardianship.^ By statute this. legal hypothec has been abolished in the Transvaal and materially re- stricted at the Cape.* Section 5. How Gitardianship ends Guardianship is determined by the following events : How viz. (1) the death of the minor ; (2) the death of the |^^ l^_ guardian,^ in which case a surrogated tutor (if any) or tutor dative replaces him ; (3) majority, unless the Court decides that the ward is to remain under guardianship for some time longer ; * (4) marriage, imless the Court for weighty reasons orders that the guardianship is to con- tinue either absolutely or with respect to the immovable property of the ward ; ' (5) venia aetatis ; ^ (6) arrival of time or cessation of purpose, when the guardian- ship was created for a limited time or purpose ; ® (7) removal ^^ or release of the guardian by the Court ;

Gr. 2. 48. 16, and Sohorer's note ; Voet, 20. 2. 11 ft. ; 27. 3. 1 ; 

V. d. L. 1. 12. 2.

Voet, 20. 2. 12. » Voet, 20. 2. 11. 
  • 1 Maasdorp, p. 257 ; 2 Maasdorp, p. 247 ; Cape Act 5 of 1861, sec. 8;

Transvaal Procl. No. 28 of 1902, sec. 130. = Gr. 1. 10. 1. " Gr. vbi swp. The age of majority was sometimes anticipated by order of Court, but this practice was replaced by grant of venia aetatis. V. d. K. Th. 110. ' Gr- 1- 10. 2.

Gr. 1. 10. 3. But this does not carry the right to ahenate im- 

movables except by leave of the Court. Supra, p. 38. » Gr. 1. 10. 6. " w Gr 1. 10. 4 ; Voet, 26. 10. 1^ ; V. d. K. Th. 162. (8) absence of the ward [77] for a prolonged period, such as furnishes a presumption of his death, in which case his property is divided amongst his testamentary or intestate heirs, security being given for its return in the event of the ward's reappearance; (9) (in South Africa) the insolvency of the guardian [78] and, so far as concerns the property, of the ward.[79]

  1. Gr. 1. 7. 3 and Sohorer ad loc.; Voet, 26. 1. 7; 27. 10. 1; V. d. K, Th. 111.
  2. Nov. 118, capp. 4–5 (A. D. 543).
  3. Hoola van Nooten, Vaderlandsche Rechten, vol. i, pp. 644–6; and see on the whole subject Rechtsg. Obs. pt. 4, no. 9.
  4. Hoola van Nooten, vol. i, p. 558; V. d. L. 1. 5. 2.
  5. Gr. 1. 7. 9; Van Leeuwen, 1. 16. 3; Voet, 26. 2. 5. But in South Africa, by the Administration of Estates Act, 1913, sec. 71 (re-enacting and amending Cape Ord. No. 105, 1833, sec. 1): ‘It shall not be lawful for any person except—(a) the father of a minor; or (b) the mother of a minor whose father is dead or has abandoned the minor; or (c) the mother of a minor to whom the custody of such minor has been given by a competent Court; by any will or other deed to nominate any tutor or tutors to administer and manage the estate or to take care of the person of such minor.’ This is without prejudice to the right to appoint a curator nominate.
  6. Voet, 26. 2. 5 (magt van assumptie). Infra, p. 49, n. 8.
  7. Hoola van Nooten, op. oit., p. 593 (magt van surrogatie of substitutie). Vide Boey, Woorden-tolk, sub voce Voogdye; V. d. L. 1. 6. 7.
  8. 2 Gr. 1. 7. 10; Van Leeuwen, 1. 16. 4.
  9. Voet, 26. 5. 5.
  10. Gr. 1. 7. 7–8; Voet, 26. 4. 4; V. d. K. Th. 117.
  11. Gr. 1. 7. 10; Voet, 26. 5. 5; V. d. L. 1. 5. 2.
  12. Hoola van Nooten, vol. i, p. 560.
  13. 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).
  14. Hoola van Nooten, vol. i, p. 550.
  15. Ibid. pp. 564 ff.
  16. Gr. 1. 9. 2.
  17. Van Leeuwen, 1. 16. 3.
  18. 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.).
  19. Hoola van Nooten, vol. i, p. 567; V. d. L. 1. 5. 2–3.
  20. 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.
  21. Gr. 1. 7. 8; Hoola van Nooten, vol. i, p. 569.
  22. Gr. ubi sup.; Voet, 26. 4. 4. But the parents had a prior claim to be appointed, and usually were appointed, to act concurrently with one or two other tutors dative. Gr. 1. 7. 11–12.
  23. Van Leeuwen, 1. 16. 3.
  24. Gr. 1. 7. 10.
  25. Gr. 1. 7. 8; Voet, 26. 4. 4. In Brit. Gui. a father has never been required to apply to the Court to be appointed guardian of his minor children along with another person named as guardian in the will of a deceased mother [G.].
  26. Van Rooyen v. Werner (1892) 9 S. C. 425.
  27. Ibid., per de Villiers C. J. at p. 431. But a deceased father cannot exclude the mother except by appointing a testamentary guardian in her place. Voet, 27. 4. 2.
  28. V. d. K. Th. 118.
  29. (Cape) Van Rooyen v. Werner, ubi sup.; (Natal) In re Dolphin's Intestacy (1894) 15 N. L. R. 343. She does not lose her right to the custody of the children upon remarriage except in special circumstances. Voet, 27. 2. 1.
  30. V. d. K. ubi sup.
  31. Administration of Estates Act, 1913, secs. 76 and 107. In Brit. Gui. tutors dative are appointed by the Supreme Court, which may require security and impose conditions [G.].
  32. Administration of Estates Act, 1913, sec. 73.
  33. Ibid., sec. 78. By the Civil Law the mother, and by the R.-D. L. the surviving parent, was required within a short time of the death of the predeceasing spouse to notify the Court or the Orphan Chamber, and to apply for the appointment of guardians. Gr. 1. 7. 13; Cens. For. 1. 1. 16. 9. In the Civil Law the mother who failed to do so lost all right of succession to the minor children. Cod. 6. 58. 10. This penalty was disused in the R.-D. L. Groen. de leg. abr. ad Cod. ubi sup.; Voet, 26. 6. 4 (ad fin.); V. d. K. Th. 123; but the local statutes usually imposed a small pecuniary penalty. The same duty attached in the R.-D. L. in respect of an inheritance coming to a minor child during the lifetime of both parents. Gr. 1. 6. 1; V. d. K. Th. 103. Supra, p. 34.
  34. Voet, 26. 2. 5; V. d. K. Th. 118; V. d. L. 1. 5. 2.
  35. Administration of Estates Act, 1913, sec. 71.
  36. Ibid., sec. 77: (1) Nothing in this Chapter contained shall prevent any tutor testamentary of any minor or curator nominate of any estate from assuming any other person as tutor of that minor or curator of that estate (as the case may be), by virtue of any power for that purpose committed to him by the will of, or any other deed duly executed by, the person by whom the tutor testamentary or curator nominate was appointed: Provided that no person shall be entitled or qualified to act as assumed tutor or curator unless, during the lifetime of the tutor testamentary or curator nominate, letters of confirmation have been granted to the assumed tutor or curator as such by the Master.
  37. Also to administer the property of persons who are absent from the Colony and not otherwise represented. Administration of Estates Act, 1913, sec. 80.
  38. Such persons were known as bejaerde wezen (Gr. 1. 11. 3–4; Van Leeuwen, 1. 16. 13; Voet, 27. 10. 3 and 6; V. d. K. Th. 164–5) or as Hofs- or Stads-Kinderen (V. d. L. 1. 5. 8).
  39. Gr. 1. 11. 2. An insane or prodigal wife is placed under the guardianship of her husband; an insane husband is not placed under the custody of his wife, but his property may be. Gr. 1. 11. 7; V. d. K. Th. 168.
  40. Voet, 27. 10. 13.
  41. Van der Linden, Judic. Prac. 1. 8. 3.
  42. V. d. L. 1. 5. 1.
  43. Gr. 1. 7. 6.
  44. Voet, 26. 1. 5; V. d. K. Th. 112; Schorer ad Gr. 1. 7. 11; Hoola van Nooten, vol. i, p. 572. Cf. Voet, 26. 4. 2. But a surviving spouse, though under age, may, it seems, be guardian to his or her children.
  45. Gr. 1. 7. 6 and 11; Voet, 26. 1. 2; V. d. K. Th. 114. But see Maasdorp, vol. i, p. 267, and Schorer ad Gr. 1. 7. 11. A married woman may not be appointed curator over her husband if insane or prodigal. V. d. K. Th. 168. In South Africa, by the Administration of Estates Act, 1913, sec. 83: (1) The provisions of this Act in regard to the election and appointment of tutors and curators shall apply to males and females; (2) Letters of confirmation shall not, without the consent in writing of her husband, be granted to a woman married in community of property or to a woman married out of community of property when the marital power of the husband is not excluded.
  46. Grotius is silent on this point. Voet (26. 1. 4), Groenewegen (ad Cod. 5. 34. 8), and van Leeuwen (Cens. For. 1. 1. 16. 19) agree that there is no absolute disqualification. See also Sande, Decis. Fris. 2. 9. 1.
  47. Cape, Act No. 22 of 1876, sec. 4; Transvaal, Ord. No. 14 of 1903, sec. 4; 0. F. S. Ord. No. 11 of 1904, sec. 4. Brit. Gui., Ord. No. 12 of 1906, sec. 8, contains a provision to the same effect. In Natal there is no such disqualification (see Law 2 of 1868, sec. 7). In Ceylon there is no statutory provision. Voet adds to the disqualifications mentioned in the text: (5) a person not subject to the jurisdiction cannot be tutor dative (26. 5. 3); (6) persons expressly prohibited by the will of either parent (26. 1. 4).
  48. Grotius (1. 7. 6) says that soldiers cannot be guardians; so also Voet (26. 1. 4). Van der Keessel (Th. 113) agrees with Van der Linden.
  49. Gr. 1. 7. 14; Voet, 27. 1. 12; V. d. K. Th. 124.
  50. 1 Maasdorp, p. 244; Administration of Estates Act, 1913, sec. 73 (2). In Brit. Gui. a beneficiary under the will, or the parent, child, grandparent, grandchild, brother, sister, uncle, or aunt of the testator, must obtain the permission of the Court to enable him or her to refuse the guardianship. A non-relative is not compelled to act, but must file with the Registrar an affidavit that he does not desire to act. Ord. No. 12 of 1906, sec. 16 [G.].
  51. Gr. 1. 7. 15; Van Leeuwen, 1. 16. 5; V. d. L. 1. 5. 1.
  52. V. d. L. 1. 5. 3. Cf. Gr. 1. 9. 1; Voet, 26. 7. 2; V. d. K. Th. 134.
  53. Gr. 1. 9. 3 and 8; Van Leeuwen, 1. 16. 6; Voet, 26. 7. 4; V. d. K. Th. 135–6 and 146; V. d. L. ubi sup. The first-dying parent may not dispense the survivor from the duty of preparing an inventory. V. d. K. Th. 137.
  54. Administration of Estates Act, 1913, sec. 85.
  55. Ibid., sees. 108–9.
  56. Voet, 26. 7. 5.
  57. Gr. 1. 9. 4, and Schorer's note ad loc.; V. d. K. Th. 139, dissenting from Voet (26. 7. 5), who questions whether forfeiture obtains. Semble, in any event an action lies for damages.
  58. Gr. 1. 6. 1; and 1. 9. 5. If a curator nominate has been appointed to the property in question, the duty of making an inventory falls on him and not on the parent. V. d. K. Th. 140–1.
  59. Gr. 1. 9. 3 and 8; Van Leeuwen, 1. 16. 6; V. d. K. Th. 135 ff. A testator might by his will: (1) exclude the Orphan Chamber; (2) remit the duty of accounting; but such directions were not always effectual. Gr. 1. 9. 3; Van Leeuwen, 1. 16. 3 and 6; Voet, 26. 7. 4; V. d. K. Th. 135–8. In the latter case it was sometimes permitted to furnish an inventory closed and sealed; and Cape Law allowed this course: (a) when the testator had so directed; (b) in the case of a surviving spouse whom the deceased spouse had appointed tutor and boedelhouder. Ord. 105, 1833, sec. 18. This is now repealed. There is no corresponding provision in the Administration of Estates Act, 1913. For Boedelhouder see below, p. 100.
  60. Gr. 1. 9. 6 and 8; V. d. K. Th. 142.
  61. V. d. K. Th. 143 and 153. By Cape Ord. 105 of 1833, secs. 25 ft., tutors dative, curators dative, and curators bonis must pay their wards' moneys to the Master of the Supreme Court, except in so far as it may be required for the immediate payment of debts, or for the maintenance of their wards. 1 Maasdorp, p. 255. This clause is re-enacted by the Administration of Estates Act, 1913, sec. 88, which extends the above provision to a tutor testamentary and curator nominate ‘subject to the terms of the will or deed by which he was appointed’. Securities must be deposited. Gr. 1. 9. 9.
  62. Gr. 1. 9. 6; Voet, 23. 2. 100; V. d. K. Th. 142; V. d. L. 1. 5. 4; Regtsg. Obs., pt. 1, no. 15; Boey, Woordentolk, sub voce Vertigting; Ontwerp, sec. 411; Cape Act 12 of 1856, secs. 1 and 2, re-enacted by the Administration of Estates Act, 1913, sec. 56, which, however, does not require such payment or security, if the estate is of less value than one hundred pounds.
  63. 1 Maasdorp, p. 19; 2 Maasdorp, p. 247; and see the judgment of Hopley J. in Maxwell & Earp v. Dreyer's Estate (1908) 25 S. C. 723. In Brit. Gui. the instrument in use was called an Act of Verweezing. By the Married Persons Property Ordinance (No. 12 of 1904), sec. 26, no Act of Verweezing shall be necessary before or upon the marriage of any widower or widow.
  64. Gr. 1. 9. 9; Voet, 26. 7. 1 and 6. Generally speaking a surviving mother is entitled to the custody (V. d. K. Th. 141), notwithstanding a remarriage (Voet, 27. 2. 1). A surviving parent must provide for the children, males until their eighteenth, females until their fifteenth year, out of the proceeds of the minor's estate. Gr. ubi sup. Van der Keessel, however (Th. 152), says until full age.
  65. Gr. ubi sup.; Voet, 27. 2. 1.
  66. Voet 27. 2. 2.
  67. Gr. 1. 9. 11; Van Leeuwen, 1. 16. 8; V. d. L. 1. 5. 3.
  68. Dig. 26. 7. 33 pr. (but see Dig. 27. 3. 1 pr.); Voet, Compendium, 26. 7. 3.
  69. Voet, 26. 7. 6; 27. 2. 2.
  70. Voet, 26. 7. 8.
  71. Voet, 26. 7. 7.
  72. Gr. 1. 9. 10; Van Leeuwen, 1. 16. 8; Voet, 26. 7. 10; V. d. K. Th. 153–6; Van der Byl & Co. v. Solomon (1877) Buch. at p. 27 per de Villiers C.J.
  73. Voet, 26. 7. 15. If the guardianship is determined by the minor's death, the guardian must render accounts and make over the property to his heir. V. d. K. Th. 159.
  74. Gr. 1. 9. 11; Voet, 26. 7. 1; V. d. L. 1. 6. 3 (ad fin.). Remuneration of guardians—vide infra, p. 61, n. 3.
  75. Gr. 1. 8. 5; Voet, 27. 9. 4. Grotius adds: ‘doch met kennisse van de weeskamer daer de zelve niet en is uitgesloten’.
  76. Gr. 1. 8. 6. Van Leeuwen (1. 16. 9) says, ‘otherwise than with the consent of the Court or local tribunal’.
  77. Gr. 1. 10. 5, and Schorer's note; V. d. K. Th. 163.
  78. Supra, p. 62. In Brit. Gui. guardianship is not ipso jure determined by the guardian's insolvency [G.].
  79. In re Jones (1885) 5 E. D. C. 34; 1 Maasdorp, p. 264.