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(legitima), curatorship with respect to madmen, 13 according to Lopez in his Gl. 2. on L. 2. tit. 16. P. 6. [L. 2. tit. 16. P. 6. Gl. 2.] 4th, That the curator is appointed in the first place for the care of the property, and consequently of the person of the minor, Lopez, Gl. 2. on L. 13. tit. 16. P. 6. (L. 13. tit. 16. P. 6. Gl. 2.]
Guardianship ending at fourteen in males, and twelve in females, curatorship commences at those respective ages of the respective sexes; although the nomination of a curator will take place always when guardianship is put an end to, for any of the causes which we shall specify in Title IV., when we treat of this subject.
13 That there is no lawful curatorship, cxcept it is with regard to madmen, is what is stated by Gregorio Lopez. But if in this case it is valid, as is to be supposed, from the Roman Law, he should have said, that the same species of curatorship, for the same reason, cxists with regard to prodigals.
OF THE OBLIGATIONS OF GUARDIANS AND CURATORS.
CAP. 1. In order to the due discharge by the guardian or [ 12 ] curator of the duties of the office, it is necessary, not only that the guardianship or curatorship be admitted according to the laws of the kingdom, but that it be also exercised according thereto. Ist, The guardianship is admitted according to these laws, when the guardian, on his admission, places in security the minor and his property." 2d, It is duly exercised when the guardian takes care in the first place of the person of the minor, and consequently of his property and effects.
§ 1. That the undertaking the office of guardian consists in placing in security the person and property of the minor, is evident. ist, Because our laws direct in the first place that the guardian shall give security on oath, L. 9. tit. 16. P. 6. [L. 9. tit. 16. P. 6.) And if he does not give security? his acts are invalid, and it even affords ground for the judge's depriving him of the administration; in this case, however, of a mother or grandmother being lawful guardian, they are only obliged to make the renunciations we have before mentioned,3 L. 9. tit. 16. P. 6. [L. 9. tit. 16. P. 6.] 2d, Because guardians and curators are obliged to make an inventory; and if they do not, may be removed, unless there be just cause for their not making it; but even in this case it ought immediately to be ordered to be done, L. 15. tit. 16. P. 6. [L. 15. tit. 16. P. 4.] And this inventory must be made with the permission of the judge, before a public Escribano, and with a specification of moveables or personal effects, of real property, and other things prescribed by L. 99. tit. 18. P.3., [L. 99. tit. 18. P. 3.,] this inven tory being of such force and effect, that no opposition can be made to its correctness by the guardian, although he may have therein enumerated more property than the minor possessed, L. 120. tit. 18. P. 3. [L. 120. tit. 18. P. 3.) But when there is no property the guardian ought to make a solemn declaration to the effect before the judge, in order that this declaration or protest may serve him by way of inventory, or discharge with regard to accounts, Lopez on L. 99. tit. 18. P. 3. Gl. 3. [L. 99. tit. 18. P. 3. GI. 3.) 3d, Because the property of the guardian is pledged, or bound to the minor and his heirs, from the day on which he began to exercise his guardianship, until that of his rendering an account thereof, L. 23, tit. 13. P. 5. [L. 23. tit. 13. P. 5.)
? The literal translation is here given ; but perhaps the better translation would be, "gives security for the property of the minor.”
It would seem, that the testamentary guardian only was excepted from giving security, by the civil law. This is stated in a manuscript course of the Lectures of Dr. Halifax, in my possession, although this exception is not stated in the printed analysis of these lectures. Browne would seem to infer this exception in p. 134. lst vol. 2d edit. of his lectures. He says, the legitimate and dative tutor took an oath nearly resembling that of our executors and administrators, to administer faithfully, and to render a just account when required. They also were obliged to give security, &c. Wood, in his Inst. Civ. L. p. 129, 130, 4th fol. edit., speaking of the administration of tutelage and curatorship, says:-"That this security is to be constantly given by those guardians which the law only does assign; for it is not required from guardians appointed by testament, or by the magistrate upon inquisition; for the testator and the magistrate, by such a designation, have already approved of their honesty. But these two may sometimes be forced to give security," &c. Since the foregoing note was written, the translator has obtained the edition of the text, with notes by Palacios, who observes on this point, “ that when L. 9. tit. 18. P. 6., & L. 94. tit. 18. P. 3., which also treats of this matter, say that guardians ought to give security, they only speak of lawful guardians; but that they make no mention of testamentary guardians, nor of those judicially appointed (dativos), nor is there any law which imposes on them such an obligation.” He adds, however, that practice has nevertheless established the giving security also by guardians judi. cially appointed; and that Greg. Lop. Gl. 5. L. 9. tit. 16. P. 6. stated it was the case in
.: Palacios (2) here observes, that he finds a law which obliges lawful guardians to give security; and that he does not discover any which exempts from this obligation the mother nor grandmother; and that he does not, on this account, feel himself warranted in saying that they are released therefrom; that if authority, besides reason, avails any thing in this case, Gregorio Lopez, (and many other authors) in Gl. 8. L. 9. lit, 16. P, & ays, that they ought to give security.
$ 2. The guardianship being entered on under these solemnities, it ought to be faithfully and lawfully administered. For which reason, as it often happens that this administration is committed to many, either because the testator appoints them, or because they happen to · stand in the same degree of consanguinity to the minor, and the magistrate assigns this charge equally to all, which always produces disputes among the co-guardians, and bad consequences to the minor; they may agree upon one among themselves to discharge the duties of the administration with the approbation of the judge; who, in case they should disagree as to the nomination, may name, as administrator, him who shall offer the best security, L. 11. tit. 16. P. 6. [L. 11. tit. 16. P. 6.]
In order to this good or faithful administration two obligations are necessary; one which regards the care of the person of the minor, and the other which relates to the care of his property. The first is the principal, and it follows, in the first place, Ist, That the guardian can in no case leave the minor defenceless; wherefore, 2d, He ought to prosecute or defend the suit commenced by, or instituted against him; in which case if there be two or more guardians, either of them may do it alone, if the others be not present: but this must be understood when the minor is under seven years of age; because if he be older, he may himself prosecute and defend with the consent and presence of his guardian, L. 17. tit. 16. P. 6. [L. 17. tit. 16. P. 6.]
4 The guardianship or curatorship being appointed, that is to say, being committed by the judge to the guardian or curator respectively, the practice is “to deliver the property to him by inventory, before he enters on the exercise of his office, for the responsibility of which he binds himself in the instrument which he executes, in order to avoid all fraud and suspicion of occultation.” Palacios (3).
3d, The guardian ought to appear in person in these suits, and not by attorney, L. 17. tit. 16. P. 6.; [L. 17. tit. 16. P. 6.;] and 4th, if he find himself prevented from doing so, he may name an attorney for a particular suit, which must be expressed in the power, the form [ 14 ] of which will be seen in L. 96. tit. 18. P. 3., [L. 96. tit
. 18. P. 3.,] but always under the obligation of being subject to, or liable for the injury or damage which may result from this appointment, L. 96. tit. 18. P. 3. [L. 96. tit. 18. P. 3.) 5th, If sentence or final judgment be given against the guardian, in such suits, levy must not be made upon his property, but upon that of the minor, L. 17. tit. 16. P. 6. [L. 17. tit. 16.P.6.] 6th, He ought to interpose his authority in the affairs and contracts of the minor; because otherwise the minor shall not be bound to the performance of the contract, or to those with whom he makes it, unless the obligation or covenant be beneficial to the minor, as laid down in L. 17. tit. 16. P. 6. [L. 17. tit. 16. P. 6.] 7th, He ought to provide for him education and instruction in those sciences or arts suited to his family, birth, and property, L. 16. tit. 16. P. 6. [L, 16. tit. 16. P. 6.] 8th, He ought to provide him with aliment from his personal property (caudales) according to the direction of the judge, leaving always the real property (finca5) untouched; but when it is not fit to make known the state of his riches or poverty, the guardian may furnish it from his own means, and afterwards have recourse for remuneration to the property of the minor, L. 20. tit. 16. P. 6. [L. 20. tit. 16. P. 6.) 9th, He must provide him with a house or dwelling, which shall be the one that his father shall have pointed out in his will; and in case of no such direction, he shall be brought up in the house of his mother;6 but should the minor have no mother, or should she marry a second time, he must be brought up in the house which the judge shall determine upon, who must take care of the minor, and attend to his welfare; but by no means shall he be brought up in the house of the person who may inherit the property of the minor, L. 19. tit. 16. P. 6. [L. 19. tit. 16. P. 6.]
The second obligation, which relates to the care of the property of the minor, is comprehended under the following rules: 1st, That the guardian cannot alienate or dispose of any of the moveable goods or chattles (muebles)? of the ward without the permission of the judge of his domicile, which shall not be granted without cognisance of the cause of such alienation or sale, and of its utility to the ininor, L. 4. tit. 5. P. 5. [L. 4. tit. 5. P. 5.); however he may make such sale without the knowledge of the judge, when it is done for the purpose of providing a marriage portion (dote) for a female ward, L, 14. tit. 11. P. 4. [L. 14. tit. 11. P. 4.] 2d, Much less can he dispose of the real property of the minor, unless it be to enable him to pay debts due by the father, or to marry the brother of the minor;' but then he must obtain the approbation of the judge for the purpose, L. 18. tit. 6. P. 6. and L. 14. tit. 11. P. 4. [L. 18. tit. 6. P. 6. and L. 14. tit. 11. P. 4.) 3d, And even in these cases, which furnish just causes for the alienation of the real property, the judge shall not consent to the sale of the house [ 15 ] of the father or grandfather of the minor10 in which it appears he was born, unless it cannot be possibly avoided, L. 18. tit. 16. P. 6. [L. 18. tit. 16. P. 6.) 4th, Neither can the guardian mortgage or pledge the real property without the authority of the judge, but he may the personal" provided manifest advantage result therefrom to the minor; for which purpose he may12 lay out the money so taken or borrowed on mortgage or pledge for the minor's profit and gain, L. 8. tit. 13. P. 5. [L. 8. tit. 13. P.5.) 5th, That the guardian cannot purchase any thing belonging to the minor without the express permission of the judge 3 and the consent of his co-guardians, L. 23. tit. 11. lib. 5. Rec. L. 4. tit. 5. P. 5. [L. 1. tit. 12. lib. 10. Nov. Rec.]; and even in this case it must be for the manifest advantage and utility of the minor, for if it be not, the minor has his remedy of restitution against the injury, the demand for which he must make judicially within four years after coming of age, L. 4. tit. 5. P. 5. [L. 4. tit. 5. P.5.] 6th, But notwithstanding the guardian may, of his own authority, incur all necessary expenses; which the law allows, such as for the payment of schoolmasters, debts, marriage portions (dotes), &c., for the repayment of which all the property of the minor remains
6 I have translated “caudales" personal property, and "finca” real property; but I apprehend the meaning of the text, as gathered from L. 20. tit. 16. P. 6. is, that the in. terest of money, before the capital and personal property, such as money, and the rents or produce of real estate, shall be applied for the purposes mentioned, before recourse is had to the real property of the minor.
6 Being of good fame. Vide L. 19. tit. 16. P. 6.
Ti. e. Personal property. The text makes use of "muebles," but the law quoted uses the word * cosas," which implies property in general, without distinction; whereas " muebles," in its fullest sense, only comprehends all sorts of personal property. Greg. Lap. GI. 2. L. 4. tit. 5. P. 5. seems to think, that personal property is not understood by this law; and he appears to be supported in this opinion, from what may be inferred from L. 14. tit. 11. P. 4. ad fin.“mas si quisiesse dar la dote de las cosas muebles," &c. Vide also L. 18. tit. 16. P. 6. Since this was written, the possession of the edition of the text by Palacios, enables me to add, that the guardian may dispose of the personalty (cosas muebles) not of a precious kind, without the anthority of the judge, according to the more cominonly received opinion.
8 Palacios (2) observes, that what L. 14. tit. 11. P. 4. cited, says, is, that a femme coverte under 25 years of age, may assign to her husband, with the authority of her curator (dote), out of her personal property; but that she cannot out of her real property, without the authority of the judge. He adds, that without the knowledge and consent of the judge, and without cognisance of the cause, the guardian cannot alienate the property of his ward, neither for the purpose of giving a marriage portion, (de dotar) to his female ward, or her sister, nor for any other purpose; and he refers to L. 18. tit. 16. P. 6. and others.
9 The sister of the minor, or the minor himself, and for other necessary, just, or lawful reason. Vide L. 18. tit. 16. P. 6., quoted in the text.
10 Nor the old servants of ditto. Vide the law quoted, L. 18. tit. 16. P. 6. ad fin.
11 It is the opinion of Palacios (4) that L. 8. tit. 13. P. 5. must be understood only to mean such personal property as is not precious or valuable.
12 Palacios observes, that it would be more correct to say, “ought to lay out or invest," inasmuch as L. 8. tit. 13. P. 5., cited in the text, directs it to be done.
13 L. 1. tit. 12. lib. 10. Nov. Rec. (L. 23. tit. 11. lib. 5. Rec.) makes no such exception; and see Azevedo on this law. N. 5. and 6.