Let us now proceed to another division of persons. Of those who are not in the power of a parent, some are under a tutor, some under a curator, some under neither. Let us treat, then, of the class of those persons who are under a tutor or curator; for we shall thus ascertain who are they who are not subject to either. And first of persons under a tutor.
1. Tutelage, as Servius has defined it, is an authority and power over a free person, given and permitted by the civil law, in order to protect one whose tender years prevent him defending himself.
2. Tutors are those who have this authority and power, and they take their name from the nature of their office; for they are called tutors, as being protectors [i.e., tuitores] and defenders, just as those who have the care of the sacred edifices are called aeditui.
3. Parents may give tutors by testament to such of their children as have not attained the age of puberty, and are under their power. And this, without any distinction, in the case of all sons and daughters. But grandfathers can only give tutors to their grandchildren when these will not fall under the power of their father on the death of the grandfather. Hence, if your son is in your power at the time of your death, your grandchildren by that son cannot have a tutor appointed them by your testament, although they were in your power; because, at your decease, they will fall under the power of their father.
4. Posthumous children, as in many other respects, so also in this respect, are considered as already born before the death of their fathers; and tutors may be given by testament to posthumous children, as well as to children already born, provided that the posthumous children, had they been born in the lifetime of their father, would have been sui heredes, and in their father’s power.
5. But if a father gives a tutor by testament to his emancipated son, the appointment must be confirmed by the sentence of the praeses in all cases, that is, without inquiry.
Categories: Institutes of Justinian