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bound to the guardian. Greg. Lop. on L. 23. tit. 13. P. 5. Glo. 4. ad fin.. [L. 23. tit. 13. P. 5. Ll. 4.]
§ 3. The administration of guardianship being weighty or burthensome, it would be difficult to find guardians who would discharge this obligation gratuitously; upon which principle is founded the provision made by L. 2. tit. 7. lib. 3. del Fuero Real, which assigns to the guardian for his trouble the tenth (decima) of the rents or produce of the property of the minor, after deducting the expenses,1s from the day the guardian accepted the office, took the necessary oath, and gave the requisite security. The origin of this allowance of the decima is to be found in the laws of the Goths, as appears by L. 3. tit. 3. lib. 4. Fuero Juzgo. This subject is fully treated of by Gaspar Balsu, in his work de Decima Tutori Hispano jure præstanda, to which we refer.
§ 4. These principles apply to the curators or administrators of minors under twenty-five years of age; and in order to determine whether the contracts which they celebrate or enter into without the authority of their curator be valid or not, it must be ascertained or seen whether they be useful or prejudicial to them; which rule is laid down in L. 17. tit. 16. P. 6., [L. 17. tit. 16. P. 6.], and which is confirmed with respect to different kinds of obligations or contracts by Ll. 3, 4, and 5. tit
. 1. P. 5.; [LI. 3, 4, 5. tit. 1. P. 5.); L. 4. tit. 12. P. 5.;[L. 4. tit. 12. P. 5.); L. 47. tit. 13. P. 5., [L. 47. tit. 13. P. 5.], and by other laws. Not only is the contract which is prejudicial to the minor null, but he may also recover damages for loss (menos- ( 16 ) cabos) sustained thereby according to Ll. 2, 3. 5. and 7. tit. 19. P. 6., (Ll. 2, 3. 5. 7. tit. 19. P. 6.], unless there be fraud or deceit (engaño) on the part of the minor; for the law proteçts or favors the person cheated or deceived, L. 6. tit. 19. P. 6.6 [L. 6. tit. 19. P. 6.]
14 This is not the opinion of Greg. Lop. himself; but he refers to another author, Alberic; whose opinion seems to be, that the guardian has not a tacit lien on, or right of retention of, the property of the minor in such cases, except the demand be clear, or settled (debitum
15 Sce L. 4. tit. 14. P. 6. Ayora, de Partit. p. 125, n. 9., says: " Deductis expensis quarendorum colligendorum conservatorumque gratiâ factis."
Palacios (1), here, observes, that the decima does not belong to the guardian, nor cura. tor of the king, or of noblemen (magnates), and powerful or opulent persons (poderosas), who have large rents or incomes; nor to the curator of the property of absent, captive, or deceased persons, because he is compared to an attorney who is not entitled to the decima; and therefore to all such a moderate salary, proportioned to their labor, is allowed. He refers to (Fobr. Reformado) P. 2. lib. I. cap. 1. § 2. num. 88.
16 In Trinidad the rights and properties of minors are further protected, in the appointment of a public officer, under the denomination of Father General of Minors, and in the registration of the accounts of all guardianships and curatorships, and of the securities entered into for the faithful discharge, guardians and curators, of their duties. See Appendix A.
OF TIIE EXCUSES OR EXEMPTIONS (EXCUSAS) OF GUARDIANS AND CU
RATORS, AND OF THE COMPLETION OF GUARDIANSHIP AND CURA
Cap. 1. As a guardian or curator appointed by either of the beforementioned ways may renounce or refuse this appointment, alleging in due time before the judge the excuse or cause, it is considered or determined that his office is personal and public, because the same things which generally excuse or exempt from a public personal office, also exempt from guardianship. Excuse or exemption is to show judicially some lawful reason for which one who is appointed guardian of any minor is not obliged to undertake the guardianship of his person or property, L. 1. tit. 17. P. 6. [L. 1. tit. 17. P. 6.]
$ 1. The excuses are either voluntary or necessary. Voluntary excuses are judicially admitted by reason of privilege, of inability, (impotencia) or of delicacy, (honestidad.) By reason of privilege À 17] are excused, 1st, Those who have five lawful and natural sons born alive, although they may have lost some of them in war in the service of the king, L. 2. tit. 17. P. 6. [L. 2. tit. 17. P. 6.] 2d, Collectors of the royal rents, L. 2. tit. 17. P. 6. [L. 2. tit. 17. P. 6.] 3d, Ambassadors, L. 2. tit. 17. P. 6. [L. 2. tit. 17. P. 6.] 4th, Judges actually employed, (en actual residencia), L. 2. tit. 17. P. 6. [L. 2. tit. 17. P. 6.] Which four excuses are only admitted if proved before entering on the guardianship, but do not avail after, L. 2. tit. 17. P. 6. [L. 2. tit. 17. P. 6.) 5th, Professors of grammar, rhetoric, logic, and medicine, if they are in the actual exercise of their callings in their country, or if out of it by royal command or permission, L. 3. tit. 17. P. 6. [L. 3. tit. 17. P. 6.] 6th, Doctors of law who are judges or counsellors; professors of philosophy and knights who are about the court of the king, L. 3. tit. 17. P. 6. [L. 3. tit. 17. P. 6.] 7th, He that is absent or abroad by order of the king, being appointed guardian provisionally by the judge; but after he returns to his country, the charge of guardianship again devolves to him, and he cannot be appointed to another guardianship within a year, unless by his own consent, L. 2. tit. 17. P. 6. [L. 2. tit. 17. P. 6.]
Those who are exempted from the office of guardians by reason of inability or incapacity, are, Ist, He who is already burthened with three guardianships, L. 2. tit. 17. P. 6. [L. 2. tit. 17. P. 6.] 2d, The poor person (pordiosero) who only subsists upon what he obtains or earns daily, L. 2. tit. 17. P. 6. [L. 2. tit. 17. P. 6.] 3d, He who is continually sick and unable to attend to his own affairs, L. 2. tit. 17. P. 6. [L. 2. tit. 17. P. 6.] 4th, He who can neither read nor write, and dare not, for such reason, attempt to perform the duty, L. 2. tit. 17. P. 6. [L. 2. tit. 17. P. 6.) 5th, The person above seventy years of age, L. 2. tit. 17. P. 6. [L. 2. tit. 17. P. 6.) But these exemptions do not belong to the person paying tax (pechero) to the king, as observed by L. 12. tit. 14.; [L. 12. tit. 14.]; L. 6. Rec.' (Lib. Rec.]
Lastly, those entitled to voluntary excuses by reason of delicacy, or courtesy, (honestidad), are, Ist, He who has entertained capital enmity towards the father of the minor, or was his actual enemy, L. 2. tit. 17. P. 6. [L. 2. tit. 17. P. 6.] 2d, He who has or expects to have a law suit with the minor, L. 2. tit. 17. P. 6. [L. 2. tit. 17. P. 6.] 3d, The husband appointed guardian of the property of his minor wife, because, to avoid all suspicion with respect to himself, he ought to pray for the appointment, by the judge, of another guardian, L. 3. tit. 17. P. 6. (L. 3. tit. 17. P. 6.]
Necessary excuses are those for which a person appointed guardian cannot, although he might wish it, take upon himself the [ 18 ] charge of the administration, and are referred to in Title II.
§ 2. The guardians, who wish to be excused from the burthen, ought to set forth their claim before a competent judge, for which purpose it is necessary, 1st, That a petition be presented within fifty days after the party knew of his appointment. 2d, That this process be instituted in the tribunal of the judge of the place in which the guardian resides who claims to be excused. 3d, That if he should be absent at a distance of more than 100 miles, he shall be allowed a day for every twenty miles of such excess, in addition to the thirty days which he is entitled to by reason of the 100 miles, in order to come to allege his excuse. 4th, That within four months3 the suit to determine the validity of the allegation of excuse shall be concluded. 5th, That if the party claiming to be excused shall feel himself aggrieved by the sentence of the judge, he may appeal to the superior court, L. 4. tit. 17. P. 6. [L. 4. tit. 17. P. 6.]
Cap. 2. Guardianship and curatorship end in many ways. 1st, By the
age of the ward, which is fourteen in males, and twelve in females," as is inferred from the definition of guardianship and curatorship, L. 21. tit. 16. P. 6.; [L. 21. tit. 16. P. 6.); and thus curatorship is terminated at twenty-five years. 2d, By the death or banishment of the guardian or ward, L. 21. tit. 16. P. 6. [L. 21. tit. 16. P. 6.] 3d, By the fulfilment or completion of the condition and time, which is peculiar to testamentary guardianship; because, as we have before
1 Omitted in Novisima Rec.--See Nota, p. 26. Table of Laws in Novisima Rec. edit. 1805; also L. 21. tit. 14.; lib. 6. Rec.; or L. 12. tit. 18. lib. 6. Nov. Rec.
? But it should be remembered, that by the last law (14) of tit. 1. lib. 5. Rec. [L. 7. tit. 2. lib. 10. Nov. Rec.) a married man, who has attained 18 years of age, may admin. ister his own property, and that of his wife, without the necessity of praying for, nor of obtaining royal license (venia) for the purpose. Palacios (1).
3 To be counted from the day on wbich the fifty days began to run. L. 4. tit. 17. P. 6. Palacios (3).
• That is, with respect to the first, when guardianship or tutelage ends, then curator. ship begins.
said, the testator alone can impose a condition on the guardian, or fix the duration of his appointment. 4th, By adoption. 5th, By removal.
§ 1. The last mode by which we have said that guardianship is ended, is the removal of the suspected guardian, which takes its rise from that certain or established principle by which the guardian is obliged to administer, with the utmost fidelity and care, the property of the minor, wherefore those are called or considered suspected who practise or are guilty of fraud, undue conduct, or injury in the discharge of the office of guardian; or who by their habits or conduct cause themselves to be suspected, although otherwise they have wherewithal to pay, Princip. tit. 18. Part. 6.; whence are deduced these three axioms. 1st, That whoever manifests bad management or improper conduct is suspected. 20, That he is deserving of removal ( 19 ) and punishment who shall produce any remarkable injury to the ward. 3d, That the accusation or charge in this case is public by reason of its object, end, and form.
From the first axiom it results, 1st, That poverty alone does not cause a guardian to be suspected, if he be in other respects of good character; and therefore although poverty may produce his removal from the administration, because the property of the minor is in danger, the guardian shall not be accounted as suspected; but if he should have lavished or misspent the property of another ward, or have been guilty of improper conduct, this will give room for suspicion, L. 1. tit. 18. P. 6. 20, That if once the guardian be accused or suspected, he shall not be absolved from the accusation on giving security. Wherefore, 3d, although he be rich, and promise or bind himself to make good the damage sustained, he ought not to be allowed to continue in the administration of the guardianship, L. 1. tit. 18. P. 6. [L. 1. tit. 18. P. 6.]
From the second axiom it is inferred, 1st, That if the guardian be accused, he ought to be deprived of the administration pending the suit or trial, and a provisional curator appointed, L. 3. tit
. 18. P. 6. [L. 3. tit. 18. P. 6.] 2d, That if it appear upon this trial that he has caused very great injury (daño notable) to the ward, he shall be rendered infamous, and shall pay the damages, L. 4. tit. 1S. P. 6. [L. 4. tit. 18. P. 6.); provided, however, he shall not be considered infamous if he be only accused as an indolent and negligent or inattentive man, L. 4. tit. 18. P. 6. [L. 4. tit. 18. P. 6.]
From the third axiom it is inferred, ist, That the mother, grandmother, sister or nurse of the minor are obliged to bring forward this accusation by reason of that greater interest they take in his welfare, L. 2. tit. 18. P. 6. [L. 2. tit. 18. P. 6.] 2d, That any of the neighbors or inhabitants of the place, although they be women, may prefer the accusation, except wards under fourteen, L. 2. tit. 18. P. 6. [L. 2. tit. 18. P. 6.] 3d, But minors above fourteen inay accuse their curators with the consent or advice of their relations, L. 2. tit. 18. P. 6. [L. 2. tit. 18. P. 6.] 4th, That this accusation may be preferred against any description of guardian, L. 2. tit. 18. P. 6. [L. 2. tit. 18. P. 6.] 5th, That it ought to be instituted before the judge of the place where the property of the ward is situate, L. 2. tit. 18. P. 6. [L. 2. tit. 18. P. 6.] 6th, That there being no person who will undertake the accusation, and the indications of his bad conduct being manifest, the judge may, of his own authority, remove him, citing him before him, and appointing a curator ad interim, L. 3. tit. 18. P. 6. (L. 3. tit. 18. P. 6.]
5 Or the ward, not of the guardian. Palacios (1).
6 This implies no more, according to Palacios (1), than that the right of accusation, or action, belongs to all the people, i. e. is popular.
? That is to say, if lie has been guilty of wilful fraud. See L. 4. tit. 18. P. 6. quoted in the text.
Cap. 3. The guardianship being ended for or by any of the beforementioned reasons or ways, the guardian ought to render an account to the curator of the pupillary guardianship, if it shall be completed, by the ward having attained the age which frees him from subjection to the guardian. But if the latter shall have been re- [ 20 ] moved as suspected before the completion of the pupillary age, he must then render an account to the guardian appointed by the judge. And the curator upon the termination of the curatorship, by reason of the young person having completed the age of twenty-five, shall give an account to the ward personally, L. 21. tit. 16. P. 6. [L. 21. tit. 16. P. 6.) For which reason or purpose not only the property of the guardian and curator, but also of their sureties and heirs, is bound to the minor and his heirs, L. 21. tit. 16. P. 6. ad fin. [L. 21. tit. 16. P. 6. ad fin.] The charge or burthen to which guardian and curator are subject in this proceeding may be well inferred from the obligations they are under, and which are referred to in the third title.
Finally, the doctrine contained in this chapter, may be applied to a curator, bearing in mind the points of difference between his office and that of guardian.
We do not treat upon the guardianship of the sons of our kings, because this belongs more to the public law of Spain. Upon this subject, L. 3. tit. 15. P. 2.°, [L. 3. tit. 15. P. 2.) and Gutierrez de Tutel & Curis, P. 1. c. 18. may be consulted.
$ The constitution of the Spanish monarchy of 19th March, 1812, now re-established in Spain, makes some little alteration in the law quoted in the text. L. 3. tit. 15. P, 2. directs
, that the persons whom the deceased king may have appointed in his will, &c. shall be guardians to the king ininor; that in default, the grandees (mayorales) of the kingdom, also the prelates, and the ricos homes, and other good and honorable men of the towns shall asseinble, and after having taken prescribed oaths, shall choose one, three, or five, but not more, fit persons to be guardians of the minor monarch; but in case the queen.mother should be alive, and being a widow, she shall be the principal, or chief guardian. The minority of a king continued by this law to twenty; and that of a queen, or female, until her marriage or puberty. The requisites for the appcintment of guardian to the minor monarch were eight: Those which deserve mention were, being natural born subjects, and not entitled to the succession after the death of the king. The 198th article of the constitution directs" Tho person whom the deceased king may have ap.