by reason of guardianship not being, among us, a form and imitation of the lofty description or character of the Patria Potestas, which fathers enjoyed with respect to their children, but rather a protection of the minor, exercised by guardians in the name of the sovereign, or magistrate, to whom is committed the care of orphans.

§2. The privileges of guardianship among us are founded on the laws quoted, which place it in a somewhat different light from that in which the Romans considered it according to their laws. This clear conception in conformity with our laws, causes us to understand, 1st, The reason that no guardian, with the exception of the one named or appointed by the father, can exercise the office of guardian without the intervention of the decree of a judge for that purpose, Ll. 6. and 8. tit. 16. P. 6. [Ll. 6. and 8. tit. 16. P. 6.] 2d, Why the confirmation of the guardianship only serves to approve of, and give authority to the guardian, and not to supply his defects. 3d, Why the orphan is obliged to reverence the guardian, as a person who represents the magistrate, in whose name he exercises the guardianship. 4th, Why the office of guardianship is a manly, public, and personal employment. 5th, Why, in the nomination or appointment of guardian, attention is only had to the benefit and advantage of the ward.

§ 3. From the definition of guardianship it follows, 1st, That the guardian is given principally for the protection or care of the person of the orphan, and consequently for that of his property, L. 1. tit. 16. P. 6. [L. 1. tit. 16. P. 6.] 2d, That the guardian is only given to the male minor of fourteen years, and female of twelve. Same law. 3d, That these minors may have a guardian appointed, although they may not pray for nor wish it. Same law. 4th, That guardian is only given to the orphan or fatherless minor. Same law.

§ 4. Guardianship being a manly, public, and personal em- [ 7 ] ployment, 1st, Persons under twenty-five years cannot be guardians,2 L. 4. tit. 16. P. 6. [L. 4. tit. 16. P. 6.] Since L. 1. tit. 7. lib. 3. del Feuro Real, which mentions twenty years, does not govern in this case. 2d, Nor can the dumb, deaf, idiots, persons deprived of memory, (desmemoriados) prodigals, bishops, monks, and religious persons (religiosos) be guardians, Ll. 4. and 14. tit. 16. P. 6. [Ll. 4. and 14. tit. 16. P. 6.] But if the clergy are relations of the pupil or minor, and pray the appointment within four months, they are eligible, L. 14. tit. 16. P. 6. [L. 14. tit. 16. P. 6.] 3d, Women are also excluded from this office, except those whose great affection for the minor may supply the vice or defect of their sex, such as the mother and grandmother, L. 4. tit. 16. P. 6. [L. 4. tit. 16. P. 6.]

Cap. 2. The advantage and benefit of the minor being looked to

* It should be observed, that persons under 25 years of age can be appointed by testament, guardians, although they cannot exercise the office of guardian until they attain that age. Palacios (1) referring to L. 7. tit. 16. p. 6.

3 If they remain widows, or do not marry again, vide p. 8. post of the text, and 9. of the translation; as also Ll. 4. and 5. tit. 16. P. 6.

in the nomination of guardian, our legislators considered it right that the express will or desire of a testator in the nomination of a guardian for the minor, whom he instituted or appointed his heir, should have the force of law; because they naturally concluded that no one would have greater consideration for the minor, and the property he bequeathed to him, than the testator himself. But as it often happens that these testamentary nominations or appointments are wanting, they determined that in this case the nearest relation had a right to be the guardian of the minor, supposing him to possess all that affection which is more natural in a relation than in a stranger. Lastly, in the absence of such parental testamentary nomination, and of relations, it rests in the discretion of the magistrate to nominate a stranger to be guardian, being a good trust-worthy man. Hence, therefore, arise the three kinds of guardians known among the Romans, and adopted by our laws, viz. testamentary, lawful, and dative, or judicially assigned (dativo), spoken of by L. 12. tit. 16. P. 6. [L. 12. tit. 16. P. 6.]

§ 1. As the foundation of testamentary guardianship, is that affection which is supposed to actuate the testator, it is inferred-1st, That the father can appoint a guardian, not only for the child already born, but also for that to be born, L. 3. tit. 16. P. 6. [L. 3. tit. 16. P. 6.] And it is astonishing that in the teeth of a law so clear, Vela, disert. 1. n. 48., should assert the contrary, founding his allegation of texts [8] of Roman laws which are of no force in these kingdoms. 2d, That the grandfather may also appoint a guardian for his grandson, provided that the latter does not fall under the power of the father, L. 3. tit. 16. P. 6. [L. 3. tit. 16. P. 6.] 3d, That the mother may also do the same when her children are without father, and she appoints them her heirs, but not otherwise; however if she does name a guardian, he shall be considered and admitted as a testamentary guardian, if the judge will confirm the appointment, L. 6. tit. 16. P. 6.

4 In this sense, Palacios observes, the text gives us to understand that the express will of the testator would not constitute law, unless the father should institute him heir. But he adds, that if a father should appoint a guardian to his son, the appointment would be valid, although he should disinherit his son, § fin. Inst. de Tut.; for that this nomination does not depend upon the fact of institution, or disinherison, but on the power of the father (patria potestad), and he refers to L. 3. tit. 16. p. 6.

5 By the Roman Law, a guardian might be appointed to a posthumous son, as well as to one already in existence; and to such a degree does the Roman law agree with ours in this respect, that it may be said our law is taken from § 4. Inst. de Tut., and from L. 1. de Testament. Tut. Palacios (3).

6 One of the conditions requisite to authorise the nomination of a guardian by testament is, that the ward (pupilo) be in the power of him who appoints, L. 3. tit. 16. P. 6. And as the married son passes by the act of marriage from the power of the father, L. 8. tit. 1. lib. 5. Rec. [L. 3. tit. 5. lib. 10. Nov. Rec.] the grandfather, therefore, cannot appoint a guardian by testament to his grandchild, except in the case where his father shall not have been married (velado). Palacios (4). This exception does not appear very intelligible. The word "velado" may, however, have some other meaning than the sense in which it is here translated.

7 As well, (Palacios), in the case in which she may institute them her heirs, as that in which she may not, although she might leave them part of her property, would the

8

[L. 6. tit. 16. P. 6.] 4th, That the father may appoint a guardian for his natural child, who must, however, be confirmed or approved of by the judge, L. 8. tit. 16. P. 6. [L. 8. tit. 16. P. 6.] 5th, That the testamentary guardian must be named with certainty and individuality of person; because, 6th, If a person be named as a guardian, whose name is common to another, unless there be certain proof which of them the testator intended, neither shall be guardian, L. 7. tit. 16. P. 6. [L. 7. tit. 16. P. 6.] 7th, That the testamentary guardian may be appointed conditionally, for a certain or specified time, and simply or absolutely; in which cases the will of the testator must be invariably complied with, L. 8. tit. 16. P. 6. [L. 8. tit. 16. P. 6.]

As testamentary guardianship in so much or so far subsists as it is beneficial and useful to the minor, it follows, that if the mother or grandmother be named guardian, by will of the father, they may act, provided they do not marry a second time, and that they renounce whatever rights may be favorable to them and prejudicial to the orphan, which is founded on the presumption that the woman, in desiring another marriage, has placed her affection on the husband and not on her child, on account of her love of whom, she was admitted to the guardianship, Ll. 4. and 5 tit. 16. P. 6. [Ll. 4. and 5. tit. 16. P. 6.]

§ 2. We have said, that in default of a testamentary guardian the nearest relations of the minor succeed by law to the guardianship, which forms the second species of guardianship, called lawful: whence it arises, 1st, That this right proceeds from the nearest degree of consanguinity with the orphan; and thus the nearest of kin (parentesco) ought to be preferred; and in default of such, he who immediately succeeds him in this consanguinity, L. 9. tit. 16. P. 6.; [L. 9. tit. 16. P. 7.]; because, 2d, Lawful guardianship follows the laws of succession or inheritance, which will be hereinafter set forth. Hence it is that, 3d, The mother is the first entitled to this right, and in default of her, the grandmother; and in default of both, or in [9] case of their unwillingness to accept, the nearest relation (pariente) L. 9. tit. 16. P. 6. [L. 9. tit. 16. P. 6.] with this difference, that by L. 3. tit. 3. lib. 4. del Fuero Juzgo, the mother was first entitled, and in case she married, then the elder brother of the minor, on his attaining the age of twenty, in default of whom the paternal uncle entered on the guardianship, from whom it passed to his son, finishing with those related by blood to the minor.

mother's nomination require the confirmation of the judge; but with this difference, that in the first case, the judge must, necessarily, confirm; but in the second not, L. 6. tit. 16. P. 6. He adds, that the confirmation of the judge is necessary in either case, because the mother is not invested with the power of the father (patria potestad) over her children, from which, as has been observed, arises the right to appoint a testamentary guardian.

If he institute him heir, the same, as we shall say, in the case in which any other person should institute a stranger his heir, and appoint a guardian for him, L. 8. tit. 16. P. 6. Palacios (6).

VOL. I.-4

The above L. 9. tit. 16. P. 6. [L. 9. tit. 16. P. 6.] having given the preference of lawful guardianship to the mother and grandmother, it is clear that there was no foundation for the establishment by Gutierrez of a fourth species of guardianship, as exercised by the mother and grandmother. See his treatise De Tutelis and Curis, Part 1. cap. 8. 4th, If there be many or several relations of the minor in the same degree of consanguinity, all shall be guardians, L. 11. tit. 16. P. 6., [L. 11. tit. 16. P. 6.] and shall administer, as will be spoken of in the following chapter.

The lawful guardianship of patrons is not now recognised or known.

§ 3. In order that the judge may proceed to the appointment of a dalive guardian with due cognisance (conocimiento,) and may have regard to the best interest of the minor, it has been established, 1st, That regularly a petition shall precede this appointment. 2d, That not every judge can make it. 3d, That the appointment of this description of guardian takes place only in default of a testamentary or lawful guardian, Ll. 2. and 12. tit. 16. P. 6. [Ll. 2. and 12. tit. 16. P. 6.]

The presentation of a petition to the judge for the nomination of a guardian being previously required, it results, 1st, that the nearest relations ought, in the first place, to petition for it; and failing to do it they lose the right of succession or inheritance, which they may possess, to the property of the minor, L. 12. tit. 16. P. 6. [L. 12. tit. 16. P. 6.] 2d, That in default of these, the friends of the minor shall petition; and in default of all such, any inhabitant of the place, L. 12. tit. 16. P. 6. [L. 12. tit. 16. P. 6.] 3d, That when no one shall do this, and the judge have information that the minor is without protection, he ought officially, and in virtue of the power committed to him, to appoint a guardian. As every judge cannot appoint a guardian, it must be observed: 1st, That competent judges only can do so, such as those who reside or have jurisdiction in the domicile of the minor, or in the birthplace of himself or his father, or in the place [ 10 ] where the greatest part of the real property of the minor is, L. 12. tit. 16. P. 6. [L. 12. tit. 16. P. 6.]; and except these, no judge can appoint a guardian, Gutierrez de Tut. et Cur. Part 1. cap. 16. 2d, That if it shall happen that the three above-mentioned judges shall appoint a guardian, the first named shall act; but if the appointment has taken place in the same day, and the precedence cannot be ascertained, then the appointment by the judge of the domicile of the minor shall take effect or be valid.10 This is conjec

9 The mother and grandmother cannot be compelled to take upon themselves this guardianship; with the difference, that the collateral relations may be according to their greater proximity. For this reason, the guardianship of the mother and grandmother is termed irregular, anonymous, and extraordinary, as hath been already observed by Febrero, (Reformado), P. 2. Lib. 1. cap. 1. § 2. num. 54. Palacios (1).

10 But the practice is, for the appointment of the guardian to be made in the place where the execution or the administration of the testament (testamentaria) is established. Febrero (Reformado) P. 2. Lib. 1. c. 1. § 2. num. 57. Palacios (2).

tured from the order in which these judges are named in L. 12. tit. 16. P. 6. [L. 12. tit. 16. P. 6.] quoted. See Gregorio Lopez in his comment 13 on this law." 3d, That this nomination belongs to the senior or superior judge who may delegate it to the inferior judge when the property of the minor does not exceed in value five hundred maravedis,12 L. 12. tit. 16. P. 6. 4th, That the nomination of guardian for the orphan of a grandee or nobleman (grande) belongs to the king, or the magistrate to whom he shall grant a particular commission for the purpose, L. 14. tit. 5. lib. 2. Rec.. [L. 17. tit. 1. lib. 6. Nov. Rec.]

The administrative or judicially nominated guardian being the one appointed in default of the testamentary or lawful, it follows, 1st, That by reason of the temporary absence or incapacity alone of the testamentary or lawful guardian, a curator or administrator, and not a guardian, is so appointed, L. 13. tit. 16. P. 6. ad. fin. [L. 13. tit. 16. P. 6. ad. fin.]: and 2d. That his appointment only continues until the age of fourteen of a male and twelve of a female minor, L. 12. tit. 16. P. 6. [L. 12. tit. 16. P. 6.] See the formule of this appointment in L. 94. tit. 18. P. 3. [L. 94. tit. 18. P. 3.]

The confirmation or decree of the judge for the administration and care of the person of the minor (pupilo) is necessary to the exercise of the office by either of these three kinds of guardians, as appears by Ll. 4. 6. and 8. tit. 16. P. 6. [Ll. 4. 6. and S. tit. 16. P. 6.] and if L. 3. tit. 16. P. 6. [L. 3. tit. 16. P. 6.] seems to except from this general rule the guardian named by the father, by making no mention of such decree, it is to be presumed that a father will select a fit and qualified person, to whom he commits the charge of the person and property of his lawful child.

Cap. 3. Curator is he who is appointed as guardian of those above fourteen and under twenty-five years of age, being of sane mind, and even of those above twenty-five, who are insane or deprived of sense (desmemoriados), L. 13. tit. 16. P. 6. [L. 13. tit. 16 P. 6.] which definition ought to be extended to prodigals or spendthrifts, who are considered insane or foolish by reason of their bad [ 11 ] conduct.

Many of the things which we have before mentioned with respect to guardians, must be understood to apply to curators; we shall therefore proceed to notice the following differences. 1st, That males above fourteen and females above twelve years of age cannot be compelled to receive a curator against their will, except it be with respect to law suits, L. 13. tit. 16. P. 6. [L. 13. tit. 16. P. 6.] 2d, That a curator ought not to be appointed by last will or testament; and if he be, his confirmation by the judge will be necessary, L. 13. tit. 16. P. 6. [L. 13. tit. 16. P. 6.] 3d, That there is no lawful

Gregorio Lopez says there, the judge of the minor's birth-place; but I am of opinion that the judge of the minor's domicile is preferred. Palacios (3).

12 "Of gold" is understood. Palacios (4).