1. If two or more are appointed by testament, or by a magistrate, after inquiry, as tutors or curators, any of them, by offering security for the indemnification of the pupil or adolescent, may be preferred to his co-tutor or co-curator, so that he may either alone administer the property, or may oblige his co-tutor or co-curator to give security, if he wishes to obtain the preference, and become the sole administrator. He cannot directly demand security from his co-tutor or co-curator; he must offer it himself, and so give his co-tutor or co-curator the choice to receive or to give security.
If no tutor or curator offers security, the person appointed by the testator to manage the property shall manage it; but if no such person be appointed, then the administration will fall to the person whom a majority of the tutors shall choose, as is provided for the praetorian edict.
If the tutors disagree in their choice, the praetor must interpose. And in the same way, when several are appointed after inquiry by a magistrate, a majority is to determine who shall administer.
2. It should be observed that it is not only tutors and curators who are responsible for their administration to pupils, minors, and the other persons we have mentioned, but, as a last safeguard, a subsidiary actio may be brought against the magistrate who has accepted the security as sufficient.
The subsidiary actio may be brought against a magistrate who has wholly omitted to take security, or has taken insufficient security; and the liability to this actio, according to the responses of the jurisprudenti as well as the imperial constitutiones, extends also to the heirs of the magistrate.
3. The same constitutiones also expressly enact that tutors and curators who do not give security, may be compelled to do so by seizure of their goods as pledges.
4. Neither the prefect of the city, nor the praetor, nor the praeses of a province, nor any one else to whom the appointment of tutors belongs, will be liable to this actio, but only those whose ordinary duty is to exact the security.
XXV. Excusal of Tutors or Curators.
Tutors and curators are excused on different grounds; most frequently on account of the number of their children, whether in their power or emancipated. For anyone who at Rome has three children living, in Italy four, or in the provinces five, may be excused from being tutor or curator as from other offices, for the office of both a tutor and a curator is considered a public one.
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