Page:An introduction to Roman-Dutch law.djvu/85

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male ascendant; (2) Tutores legitimi, i.e. the nearest agnatic (afterwards cognatic[1]) 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;[2] 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,[3] and that by the mother no less than by the father of the minor children.[4]

(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
  1. Nov. 118, capp. 4–5 (A. D. 543).
  2. Hoola van Nooten, Vaderlandsche Rechten, vol. i, pp. 644–6; and see on the whole subject Rechtsg. Obs. pt. 4, no. 9.
  3. Hoola van Nooten, vol. i, p. 558; V. d. L. 1. 5. 2.
  4. 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.