Curators of different kinds. Curators to minors. Sect. 2.-Curators. A curator is a person appointed to aid a minor pubes who is sui juris, in the administration of his property till he reaches majority. The term is also applied to the guardian of a lunatic, who is necessarily intrusted with power over the person as well as the property. Generally speaking, persons competent for the office of tutory may be appointed curators; but the mother and grandmother, though they might be tutors, were not qualified to act as curators to their children or grandchildren. The tutor of a pupil, on the expiry of the tutory, was not bound to accept the curatory of the same person.2 A father, in his testament, might name a curator to his children, but the nomination required to be confirmed by the magistrate. If no person was named in the testament, the magistrate appointed the curator, having regard to the claims of the nearest relations to the office. 3 A minor pubes who is sui juris has power to administer his property, and to perform many acts in civil life, without requiring the consent of a curator. But when he wishes to sell or burden his property, or do certain things of more than ordinary importance, the deed is not valid without the curator's consent. Even when the curator has given his consent so as to render the act binding on the minor in strict law, he is entitled to be restored against it on proof of lesion or injury. A minor, after fourteen, is himself the principal party in all transactions regarding his affairs, and the curator merely consents to what is done. A curator is responsible like a tutor, being liable to render an account of his management, and subjected to similar actions. The curatory of minors expires by their arrival at legal majority, being twenty-five years complete, or by their obtaining before that period a dispensation of age- venia ætatis-by a rescript from the emperor.* 1 Mackeldey, § 617. 2 I. 1. 25. 18. 3 I. 1. 23. 1. 4 C. 2. 45. 2. I. 1. 23. pr. to insane By the Twelve Tables the curatory of persons who were Curators insane, or incapable of managing their affairs, whatever might persons. be their age, was devolved on the nearest agnates. If there were no such relations, or if from any cause they were disqualified, curators were appointed after due inquiry by the magistrate.1 Though the guardianship of insane persons be generally treated of under curatory, yet it seems rather to correspond with tutory; for the curator to a lunatic has the charge of the person as well as of the estate of his ward; and the latter being incapable of consent, the curator must transact all business in his own name. ad litem. Curators were sometimes named to a minor for a special Curators purpose. Thus, if the minor was engaged in a lawsuit with his guardians, or, having no guardians, with strangers, a curator ad litem was given to him by the judge, to aid in the prosecution or defence.2 A minor is indulged with four years after he reaches ma- Restitution jority, to obtain restitution against all deeds granted, either of minors. by himself, if he had no curators, or if he had curators, with their consent, which he can show to be prejudicial or injurious to him. When loss arises from some accidental cause, and is not inherent in the original transaction, no redress is given. The lesion or injury must be considerable, and it is estimated as at the date of the transaction itself, not of the challenge. After the quadriennium utile has expired, no action can be raised. Minors may bar themselves from claiming restitution by confirming or homologating the deed after majority, as by paying interest.3 This doctrine as to the restitution of minors is followed in Scotland. Mere revocation within the quadriennium utile, however, is not sufficient. The deeds against which the minor is entitled to be restored must also be challenged by an action of reduction in the Court of Session within that term.* 1 I. 1. 23. 3, 4. 2 I. 1. 23. 2. 3 D. 4. 4. C. 2. 22. Ersk. 1. 7. 34. Stewart, 20 Dec. 1860, 23 D. 187. Guardians II.-FRENCH LAW. By the French law the office of guardian to children not in France. emancipated belongs to the father, then to the mother, if she be the last survivor, and, failing them, to the male ascendants, calling first the paternal grandfather and then the maternal grandfather. Guardians may be appointed by the longest liver of the parents, whether father or mother, by testament; and the persons so chosen are preferred to ascendants. Failing all these, a family council may name a person to act as guardians to children in minority.1 Whoever is chosen guardian is bound to act, unless he can plead a lawful ground of exemption. The Civil Code (art. 427-449) indicates the grounds of dispensation, incapacity, and exclusion. Women are incapable of acting as guardians, except the mother and ascendants. Their powers and duties. In France the guardian takes care of the person of the minor, and represents him in all civil acts. He also administers the property of his ward; but he has no power to alienate or impledge immovables without the express authority of a family council, and then only on grounds of absolute necessity or evident advantage, and after judicial sanction has been obtained. A guardian who has grave reasons to be dissatisfied with the behaviour of the minor, may bring a complaint before the family council, and obtain their authority for procuring his detention in a house of correction.2 Guardianship terminates by the majority of the minor, and even before that age, by his contracting a lawful marriage, which operates as emancipation, and puts an end to the power both of parents and guardians.3 1 Code Civil, art. 389 et seq. 3 Pothier, Traité des Personnes, tit. 6. sec. 4, art. 5. III.-ENGLISH LAW. According to the technical phraseology of the law of Eng- Guardians in England. land, an infant is a person under twenty-one years of age; in the Roman law this term was only applied to pupils under seven. In England a father is the guardian of his children. during minority, and he may, by deed or will, appoint a guardian to act after his death. Failing such nomination, the mother becomes guardian; but though she should survive her husband, she has no power of appointment by will or otherwise. Chancery. When a minor has no guardian, the Court of Chancery has Wards of the power of appointing one. If a suit be depending respecting the minor or his estate, the minor becomes a ward of Court. When this occurs, the minor is not allowed to marry without the leave of the Court; and any one marrying a female ward clandestinely, may be committed to prison for contempt.1 IV. SCOTTISH LAW. By the law of Scotland the father can, by deed executed Guardians named by in liege poustie (that is, not on deathbed), appoint tutors and father. curators to his children. Any person who is of full age may be so named, except a married woman, who, being herself under the curatory of her husband, cannot act as a guardian for others during the subsistence of her marriage. The guardians appointed by the father have precedence over all others.2 law, or If no tutor be nominated by the father, the next male Tutor-atagnate of twenty-five years of age, who is heir-at-law, is factor loco entitled to the office of tutor-at-law for the management of tutoris. the pupil's estate; but his person is intrusted to the mother, or to the nearest cognate.3 1 Stephen's Com. on Laws of England, 4th ed., p. 315-317. Paterson's Compendium, p. 270. 2 Act 1696, c. 8. Fraser, Per. and On the failure both of tutors Dom. Relations, p. 76 and p. 185. 3 Ersk. 1. 7. 7. Curators chosen by minors. Powers and duties of nominate and tutors-at-law, the Court of Session may appoint a tutor-dative,1 or a factor loco tutoris. The powers of a factor loco tutoris are similar to those of a tutor; but the factor may be superseded at any time by the service of a tutor-at-law. A minor pubes, whose father has not named curators, may either take the management of his estate upon himself, or he may put himself under the direction of curators, who are chosen by him at the sight of the Court, by citing his next of kin in an action, and adopting the course prescribed by the Act 1555, c. 35.2 There is a distinction between the offices of tutor and guardians. curator: a tutor is vested with the management both of the person and the estate of his pupil; while a curator's sole concern is with the estate; and this has given rise to the maxim, Tutor datur persona, curator rei. The tutor acts alone, the pupil having, strictly speaking, no person in law; while the minor pubes, on the other hand, is the principal party in all transactions regarding his affairs, and the curator merely consents along with him. A deed signed by a pupil is null; and a deed signed by a curator alone would be equally ineffectual against the ward. Where a minor who has curators duly appointed to him acts without their concurrence, his deeds are, ipso jure, null; but where the minor having no curators, or, having curators, with their consent, executes deeds to his injury, these subsist, unless they are reduced on the ground of minority and lesion.3 Decennial prescrip tion. By the Statute 1696, c. 9, a decennial prescription was introduced of all accounts between tutors and curators and their wards, so that any claims competent to the one against the other, if not pursued within ten years after the majority of the minors, or within ten years after their death, should they die in minority, are for ever excluded. 1 19 & 20 Vict. c. 56, s. 19. 3 More's Stair, vol. i. p. 46, notes. |