Chapter VI: On Quasi-Piety Between Tutors and Wards

N.B. The offices of a bishop and pastor with respect to subjects are also referred to religion and piety. Cf. what was said, III, nn. 87, 94, 292.

Division of persons. Persons who supply for parents or are legitimately substituted for them participate in the rights and offices of parents in reality. Some succeed fully in the place of parents; others are called by the parents themselves into a share of paternal solicitude. The former come under the name of tutors; the latter are called by various names, of preceptors, teachers, rectors of boarding schools, etc.

Therefore a tutor is a trustworthy person who supplies in a general way for missing parents for unemancipated minor children, or for interdicted persons.

From the canonical Code, a tutor acts and responds in judgment for a ward (c. 1648), and for an impubes ward can choose the church of funeral or burial (c. 1224, n. 1).

In the civil law of Belgium, France, and Italy there is distinguished a testamentary tutor, who is constituted by testament, or also, in Italian law, by an authentic act before a notary by the surviving spouse exercising paternal power; a legitimate tutor, whom the law designates; a dative tutor, who is chosen by the family council. When there is question of children, the testamentary tutor is preferred to the others, so that the dative tutor comes in the third place, yet in the second place, in Italian law, if the testamentary tutor has been excluded as incapable or excused. The legitimate tutor, in French law, is none except the surviving spouse; but in Italian law, the surviving spouse, since he or she exercises paternal power, is not called by the name of tutor. But legitimate tutelage is given to the paternal grandfather, and, he failing, to the maternal grandfather.

Since the utilities of the ward and of the tutor can be contrary, another trustworthy person is joined to him, who, in these cases, acts in the place of the tutor. He is called the substitute tutor (subrogé tuteur) in French law; but in Italian law, protutor; in canon law, curator (c. 1648). In French law, he is called protutor who administers goods which a minor, having domicile in France, possesses in the colonies; or goods which he possesses in France, if the minor dwells in a colony.

The office of tutor regularly cannot be declined, and is always gratuitous. The causes which dispense from the office of tutor and protutor are enumerated in art. 272-276 of the Italian Code; causes of incapacity, exclusion, and removal are indicated in art. 268-271.

Although there are several children, only one tutor is designated for all. For the law wishes to imitate paternity.

To persons so weak in mind that they are interdicted from civil acts, a tutor is also assigned according to the norms of art. 324 ff. of the Italian Code.

Beside the tutor is placed a family council, which directs and observes his administration, so that in graver acts it must furnish assent. Concerning certain matters of greater moment, the tribunal also must take cognizance by "homologating" or approving the decree of the family council.

To the tutor there is owed by the ward reverence, obedience, love of gratitude.

By his office the tutor must direct the person of the ward and faithfully administer his goods. In acts he represents the ward, or acts for him. The civil offices of the tutor are sanctioned by the obligation of rendering an account. Indeed, excepting the paternal and maternal grandfather, the other tutors, art. 303 of the Italian Code, must render an annual account of administration to the family council. Before, the office having ended, accounts have been rendered, no firm agreements can be made between tutor and ward (art. 307). In France, agreements, at least those which concern the management done, can be invalidated when the ex-ward seeks it (art. 472), and unless the tutor was from the ascendants, the legacies themselves or donations made to him from art. 907 are invalid.

Similar is the law of Spain. In the Argentine and Chilean republic, tutelage is conferred by parents, or by law, or by a judge. In the U.S.A. and England, the tutor who also administers goods, or curator of goods, is constituted by a judge alone. In Venezuela parents can assign individual tutors to individual children, or one for all or several. There is there a council concerning tutelage which must be heard by the tribunal whenever the tutor has need of judicial authority. Nor is the office of tutor there gratuitous. In German law, the father and then the mother who exercise paternal power can name a tutor by testament, and prevent certain persons from being named. The tribunal of guardianships confers tutelage from office, first in a certain legal order, then freely. It can also divide business, but not wards, among several tutors.

Mandataries of parents. By a certain delegation of parents, or mandate, those who are set over the institution of children have a share in the rights and offices of parents. Such properly are Superiors of colleges. Those who, under them, teach letters or watch over the morals of adolescents are judged to be mandataries of the Superior. Students must obey these insofar as they act according to the mind of the Superior or are set over some school; but more general obedience and connected reverence is owed to the Superior alone. Through contrary sins, institutors and Superiors violate quasi-piety and often justice; disciples are said to sin against observance.

Protection of the insane and of persons weak in mind. In canon law, those habitually insane are assimilated to infants (c. 88, §3), and they obtain the legal domicile of the curator or tutor (c. 93, §1). For them the curator acts and responds in judgment (c. 1648); which is also valid concerning those who are interdicted as to goods and labor under a less firm mind (c. 1650). A curator or tutor, constituted by civil authority, with the consent of the proper Ordinary of him to whom he has been given acceding, can be admitted by the ecclesiastical judge (c. 1651).

In favor of persons who are weaker, not indeed by age but by mind, positive civil laws have instituted protection of quasi-paternal power. And they are accustomed to distinguish those who, more fully incapable, are either detained in a hospital or pronounced interdicted (from goods): for these, in Italian, French, and Belgian law, a tutor is constituted who acts for them; and those who, too prodigal, are now prohibited from making contracts and expenses, unless a curator or "judicial counselor" assists them. For, at least in several laws, there is distinguished a tutor, who is immediately given to the person (for whom he acts), and consequently is set over the administration of goods, and a curator, who is set over merely conserving the patrimony, and assists the person who, because of age or weakness of mind, cannot prudently make graver acts. Thus, in Italian, French, and Belgian law, a curator assists an emancipated minor. Yet in the law of England and North America, he who is tutor of the person is not of himself defender of the patrimony, but guardian of the person and guardian of the estate are distinguished.

Besides, there are not a few cases in which provision is made by special curators. Thus, if the husband of a pregnant wife dies, a curator can be named for the unborn child (curator ad ventrem) (art. 236, Italian Code); a person who bequeaths goods to a minor can set a curator over these goods (art. 247).

Persons who supply for parents participate in their rights and offices. By law, the tutor succeeds in the place of parents in a general way, and is given to minors not emancipated or to persons personally interdicted (civilly); while the curator assists a weaker person, and rather guards goods. Besides, by a certain delegation of parents, those who are set over the institution of children have a share in the rights and offices of parents; indeed, also those who have adolescents committed to themselves for another end, for example of a craft.