Duties of Relatives and Guardians

What has been said concerning the mutual obligations of parent and child applies proportionately to those of other near relations. These are also bound to love each other, not only out of charity, but out of piety, and they are under a grave obligation of rendering each other assistance not only in extreme but also in grave necessity. English law only enforces on relatives the obligation of maintaining a poor relation who is unable to support himself when he would otherwise be chargeable to the parish where he happens to be. Those who are so compellable are the wife and husband, the father and grandfather, the mother and grandmother or the children of the pauper. The law of charity and piety obliges more frequently and extends further.

Guardians are sometimes appointed according to law to take care of the person and property of minors.

Parents are legally the guardians by nature and nurture of the persons of their children until these reach the age of twenty-one, as we saw above.

Of the many kinds of guardians recognized by English law the following are still of practical importance: Statutory guardians, guardians appointed by the high court and guardians appointed for special purposes.

(a) Statutory guardians. By a statute of Charles II a father may appoint by deed or by will a guardian or guardians to have the custody of his infant child, and to manage its property until it reach the age of twenty-one. The Guardianship of Infants Act, 1886, made the mother on the death of the father the guardian of her infant children, either alone if no guardian was appointed by him, or jointly with the guardian or guardians appointed by the father. The mother can also by deed or will appoint one or more guardians to act after her death and that of the father. She may also appoint a guardian to act provisionally after her death jointly with the father.

(b) Guardians appointed by the High Court. An infant may be made a ward of court by settling a sum of money on it and bringing a suit for its administration. 183 This may be done even though the father be still alive, or a testamentary guardian has been appointed. Where the court is satisfied that it would be for the good of the ward, it may remove a guardian from his office and appoint another in his place, even though the infant be not a ward of court.

(c) Guardians for special purposes are sometimes appointed to consent to an infant’s marriage, or for some other object under different statutes.

A guardian has a right to the custody of the person of his ward, and in general he exercises the rights, and is under the obligations of a father towards his ward. He administers the ward’s property, and must render an account of his administration.

No one may marry a ward of court or remove it out of the jurisdiction without the court’s permission.

The wishes of the father, as a general rule, according to English law, must be followed with regard to the religion in which a ward is educated by his guardian.

I. Duties of other blood-relatives. According to the things set forth in the treatise on virtues (n. 394), the obligation of piety, which is primarily between parents and children, also exists: 1. between blood-relatives ascending and descending, for example between grandfather and grandson; 2. between nearer collateral blood-relatives, for example between brothers; 3. between guardians and wards, between sponsors and spiritual children. For since guardians and sponsors are equated with parents, competent authority is judged to have imposed on them duties from the motive of piety. The aforesaid persons, moreover, owe to one another love, and, according to the circumstances of persons, reverence and obedience. For the rest, note can. 1372, § 2: not only parents, according to the norm of can. 1113, but also all who hold their place, have the right and the most grave duty of caring for the Christian education of children.

Toward more remote collateral blood-relatives, duties of common charity rather than of piety ought to be exercised.

II. Duties of spouses. 1. Spouses owe one another love, affective and effective,¹ conjugal fidelity,² and living together.³

2. The husband is bound: 1. diligently to administer family affairs; 2. rightly to govern the wife and the whole family. Yet let the husband be mindful of the condition of the wife, who is a companion, not a handmaid. Hence let him treat her honorably; if there is need, let him correct her, but it scarcely happens that it is lawful to strike her (St. Alphonsus, III, 351).

3. The wife is bound: 1. to reverence her husband;⁴ 2. to obey her husband;⁵ 3. together with the husband to govern the family; 4. to perform domestic duties. As to obedience, however, note that of herself she is not held to those things which the husband would irrationally impose, for example if he required from a woman of more honorable condition that she sweep the house, unless poverty excused it (St. Alphonsus, III, 351, 352, question 2). Besides, disobedience as such is not easily gravely evil, because she ought to obey as a companion, not as a handmaid.

Spouses sin gravely by provoking one another with hatreds, grave curses, or quarrels.

The husband sins gravely: 1. "if he hinders [his wife] concerning the precepts of God or of the Church... but if he hinders her, even without cause, concerning those good things which are only of counsel, as confession, communion, etc., he commonly sins only venially; 2. if he beats her gravely; yet sometimes he can moderately chastise by words, or even from a grave cause by moderate blows, with account taken of condition and state;... 3. if he neglects the governance of the house and the family property; 4. if he does not cohabit with his wife or is absent for a long time without just cause; 5. if, when he can, he does not procure food, unless however the wife has departed from the company of the husband by her own fault, or unless she has committed adultery" (St. Alphonsus, III, 356).

The wife sins gravely: 1. "if she provokes her husband by quarrels or otherwise by words to grave anger or blasphemy;... 2. if, despising her husband, she claims authority for herself; 3.... if she inserts herself into the administration of the house without just cause; such as if, for example, the husband, being prodigal, squanders the goods of the family" (St. Alphonsus, III, 351).

¹ Cf. Eph. 5:25, 28, 29; Titus 2:4.

² Cf. our little work De virtute castitatis, n. 34.

³ Cf. cited work, n. 103.

⁴ Eph. 5:33.

⁵ Eph. 5:22, 23.

Duties of Near Relatives.—There are similar duties of charity and piety between other near relatives, for example, between brothers and sisters, grandparents and grandchildren uncles and aunts and their nephews and nieces, and between first cousins. The obligation seems, to some authors, to be a grave one as far as the second degree of kinship, but is light in the other degrees. The relationship and duty to kin by marriage is not so strong.

133. What are the obligations of other blood-relations? - As regards other blood-relations, ascendants and descendants, the obligations are generally the same, with due proportion, as those of parents with respect to children, and vice versa; for all these, by reason of generation, one from another, are mutually bound by the strict bond of piety, especially if, when parents are lacking, ascendants undertake the care of grandchildren. Theologians commonly teach that they ought to undertake this care in defect of parents and tutors, so long as the latter are minors, and as far as the former conveniently can. Other things being equal, the paternal grandfather is bound to undertake that care before the maternal grandfather, as the doctors commonly teach.

As regards brothers and sisters, they ought to pursue one another with mutual love, not only with a common affection, as other men, but with a special affection on account of the close bond of blood. They ought also to succor one another as regards the necessities of life, not only in extreme, but also in grave necessity. L. 340.

The remaining consanguineal and collateral relatives are likewise bound to furnish one another love and help in necessity, according to the order of degrees of consanguinity. The reason is that the conjunction of blood and descent from the same stock and principle of life introduces this special obligation of piety. Whence, in defect of parents, or quasi-parents, and of ascendants, collateral consanguineals also succeed to the obligation of furnishing support to one in need, in ordinary necessity and beggary, if they can, or unless others are present who wish liberally to relieve a similar necessity. Struggl. 20.

"It must be said that from that which is proper to himself someone ought more to satisfy his parents, or those from whom he has received greater benefits." St. Thomas, 2.2, q. 62, a. 5, ad 4.

Because conjunction with other consanguineals is not so great as with parents and children, so that piety is gravely injured against them, a certain greater damage inflicted upon them is required, but less against brothers and sisters than as regards others less closely joined. But against more remote relatives there is absent a special grave malice against piety.

134. What of support to be furnished as regards various consanguineals and affines? - By the law of piety some ought to provide for, or nourish, others if they are in necessity. To furnishing support there is obligated in the first place the spouse; secondly descendants; thirdly ascendants; fourthly the son-in-law and daughter-in-law; fifthly the father-in-law and mother-in-law; finally brothers and sisters; and indeed this obligation is reciprocal. C. I. 132, 138-142; C. G. 203, 205-207, 212; C. L. 172; C. H. 143 seqq.; C. B. 1601 seqq.

Ascendants are bound in the order of proximity, C. I. 138; C. H. 144; C. L. 173. But descendants are bound in that order in which they would be called to the legitimate succession of the needy person, C. I. 142; C. H. 144. - Support is owed to brothers and sisters if they are in very grave necessity, C. I. 141; C. H. 143. Cf. C. L. 174. In those places in which the civil law does not oblige brothers and sisters to furnish support to brothers and sisters, nevertheless natural charity and piety gravely urge, if brothers or sisters are constituted in grave necessity. - But as regards other more remote consanguineals, besides brothers, if they are in grave necessity, the obligation is still present, although light, "since toward them also there is some obligation of piety, although not so strict." L. 339, l. 3, n. 946; Lugo, de Iust. et Iur., d. 24, n. 176. Yet the obligation of piety is present more strictly toward other consanguineals of the direct line. - The mother-in-law and daughter-in-law lose support if they pass to other nuptials, or if the spouse from whom the affinity arose has died, leaving no descendants. C. I. 140; C. G. 206.

Parents cannot deny support to children because, with the parents unwilling, they contracted nuptials with unworthy persons. L. l. 3, n. 337, 949. "Sanchez, etc., say that the father is bound to furnish support not only to the son, but also to that son's wife, although he married her without a dowry and against the will of that son's father. Besides, Azor, etc., hold that the father ought to nourish the son even if the son had wickedly consumed the portion already previously handed over to him." L. 336, 337. "But it is certain that parents are bound to furnish support to children, even spurious children, and even those born from condemned intercourse, if they cannot be sustained from elsewhere." L. 951. - Nor indeed generally is it lawful to deny support because he who seeks it has come to want through his own fault, except to brothers and sisters from C. I. 141; and from C. B. 1611 only strict sustenance is owed. - From the same C. B. 1963, 1969, if, when the inheritance has devolved, an heir yet to be born must be awaited, the mother, who cannot provide for her own sustenance, can demand from the inheritance itself support suitable to her social condition until the birth. Likewise the heir is bound to furnish support to the members of the deceased's family for a month from the devolution of the inheritance.

How much must be furnished is to be estimated from the necessity of the petitioner and from the faculties of the giver. C. I. 143; C. G. 208; C. H. 146; C. L. 178, 179. Support comprises food, clothing, dwelling, and other things necessary for life, and, according to circumstances, instruction suitable to the person. C. I. 846; C. H. 142; C. B. 1610; C. L. 171. The option is given either of receiving the needy person at home, or of supplying him a pension, unless the judge has established something else. C. I. 145; C. G. 210; C. H. 149. - But because this obligation of furnishing support is from charity and piety, not from justice, he who does not furnish it is not bound to restitution; nor is he obligated toward the heirs of the dead man who had a right to it. C. I. 144, 146; C. G. 209; C. H. 148-150, 151. It is otherwise from C. A. 171; C. L. 176. - L. 339, 356, 946, 949, 951.

The obligation of furnishing support can vary, according as the conditions of him who furnishes it, or of him who needs it, have varied. C. I. 144; C. G. 209. It wholly ceases when he who needed support has died, although it was owed to him by sentence of a judge, C. I. 146, or by donation or legacy, because support is personal. Therefore if by legacy it was owed for ten years, and before that he to whom the support had been left died, the right of support does not pass to his heirs. - La-Croix, l. 3, p. 1, n. 709 seqq.

135. What of damages to be repaired? - The question is generally raised: whether a superior is bound to repair damage caused by his subjects? - R. Affirmatively, in the external forum, according to the various laws in force in various regions. Generally this obligation of repairing damage, on account of another's act, is either from negligence in the custody and vigilance to be employed, or from the choice of persons whom we deputize to exercise an industry in our place. Cf. C. I. 1153; C. G. 1384; C. H. 1903, in which express mention is made: 1. Of the father, and, he being dead, from C. G., failing him from C. L., of the mother, in relation to minor children living with them; and in C. I. and in C. H., of tutors in relation to those of whom they are administrators, likewise living with them. 2. Of the master and of the mandator in relation to servants and mandataries in the exercise of the functions to which the former destined them. 3. Of the instructor and artisan in relation to pupils, during the time in which they are under their vigilance. - But concerning the husband in relation to the wife, nothing is established. - Such an obligation, whether in parents, or in tutors, or in masters and mandators, or in preceptors and artisans, ceases, from both Italian and French law, whenever they prove that they could not have prevented the act for which otherwise they would have to answer, or, from C. H., that they employed due diligence. - C. G. 1424.

From C. B. 828 seqq., children before the completed seventh year do not answer at all for damage inflicted. After the seventh year and before the eighteenth year, they answer for it if necessary discretion was not lacking. - But those who ought to watch over them must repair the damage, if they have omitted to employ due diligence. The same is established concerning him who entrusts some business to another, if this other inflicts damage on another in the execution of that business, unless the mandator employed ordinary diligence.

R. Negatively, generally speaking, in the internal forum. The reason is that the quality of superior brings only the burden of rightly governing subjects, but by no means an obligation from a debt of justice of preventing damages caused by one's subjects, and much less those caused by others who are not subjects; unless either from a special contract, or from a special office, he ought to prevent them. - Hence a private schoolmaster who does not correct pupils who steal or detract from others, although he ought to imbue them with good morals and receives pay for this reason, is nevertheless by no means bound in restitution to those from whom the pupils steal or whom they detract, since nothing was transacted with them. - Generally speaking; for those who are over others are bound for damage if they do not prohibit it in that matter or office in which they ought to be over them; for example, if a pharmacist's apprentice gave poison instead of medicine, provided they are not without grave fault. The same altogether holds if damage happens to another from your animal or your thing with your fault; if, for example, your dog, untied, bit someone entering, or your house, collapsed from age, killed several. - Inst. l. 1, t. 7; l. 4, t. 5, 8; Dig. l. 47, t. 5; C. A. 1308, 1309, 1314-1316; Gousset 963 seqq.

136. What are tutor and curator, and to whom are they given? - To those who cannot govern themselves and their own things, if they are not under paternal power, there is given a tutor or curator. C. A. 187; C. B. 1773. - Tutor and curator differ among themselves: 1. Because a tutor is given principally to the person, secondarily to things. But a curator is given either to things only, or principally to things and only secondarily to the person, at least speaking regularly. C. A. 188, 209; C. B. 1793, 1794, 1909. - 2. They differ because a tutor cannot be given for a definite thing and cause. But a curator can be given for definite things and determined causes. And thus C. I. 980; C. B. 1961 assign a curator to an inheritance accepted with benefit; C. A. 274, 690; C. L. 157 give a curator to the future offspring about to be born, to an inheritance, and to an inheritance when legacies burden it entire and the heir refuses to administer. C. B. 1911; C. L. 55 seqq. give a curator to the goods of an absent person. Cf. C. B. 1913, 1914. - 3. He who is under tutela can do nothing at all. He who is under cura, if he is an emancipated minor, can, with the assistance of the curator, exact lots and act in court, C. I. 318; C. G. 482; if he is an adult declared incapable, or deaf and mute or blind from birth, he can do all things with the assistance of the curator. C. I. 339, 340; C. G. 513; C. A. 269, 270. - 4. They differ from the Common Law, because a tutor is regularly given to a pupil or one under puberty, and to him who is compared to one under puberty. But a curator is given to a minor or one after puberty up to the twenty-fifth year of age. Inst. l. 1, t. 13, 23; Ferraris v. Minor, n. 10 seqq.

From More Recent Law, a tutor is given to a non-emancipated minor and to one interdicted from the administration of goods. But a curator is given to a son soon to be born; to a minor called to an inheritance; to an adult declared incapable because of infirmity of mind, or prodigality; to an absent person; to a deaf-mute, or one blind from birth. C. I. 236, 241, 245-247, 277, 314, 315, 329, 330, 339, 340; C. G. 405, 450, 492, 505, 509, 513; C. B. 1773, 1895, 1901, 1909-1914; C. L. 55, 65, 317, 337, 349, 356. - From C. H. 199, 200, no distinction is had between tutor and curator as regards the name; but as regards the thing it is preserved. For a tutor is given both to the person and goods, and only to goods. Subject to tutela are non-emancipated minors, the insane, deaf-mutes, prodigals, and the interdicted. - Almost the same is had in C. A. 187, 188, 269, 270, 275. - In any tutela, however, a protutor also is to be chosen, whose office it is to supply the place of the tutor. C. I. 265; C. G. 420 seqq.; C. H. 227 seqq.; C. A. 211, 215; C. B. 1701, 1799. - L. 917; C. L. 187 seqq.

137. Who designate a tutor; who can be tutors? - R. to the first. Those who can give a tutor are: the parent who dies last, whether by testament or by public instrument, C. I. 242; cf. C. A. 196, 197; C. H. 206; the family council, if the parent has not designated one and those whom the law designates are lacking, C. I. 245; cf. C. A. 198, 199; C. H. 204, 211, 212, 231; the council of tutela and the judge in certain cases, C. I. 248, 261, 262; C. A. 189, 190, 199, 204. - The family council is constituted for legitimate children; the council of tutela for illegitimate, namely recognized, children, C. I. 249, 261. - C. B. 1774 seqq., 1852 seqq., 1858 seqq., 1895.

R. to the second. Since the tutela of minors is a public office, filled with many cares, not all can or ought to assume it, nor can or ought all refuse it, but only persons capable by law and designated by law. C. I. 268 seqq.; C. G. 427 seqq.; C. H. 202, 203, 237 seqq., 244 seqq.; C. A. 192 seqq., 201; C. B. 1963 seqq. Tutela and cura by law belong to the spouse, the father, the mother, the paternal grandfather, the maternal grandfather, C. I. 252, 330; C. G. 402 seqq.; C. B. 1776 seqq.; and, failing these, to nearer consanguineals, C. A. 198. Cf. C. I. 200, 201, 227 seqq. - Inst. l. 1, t. 14; 200, 253; C. B. 1785 seqq.; C. H. 231.

138. What are the offices of tutor and curator? - The tutor has care of the person of the minor, and of his education, especially religious education, and he represents him in civil acts, and merely administers his goods. C. I. 277-296, 318; C. G. 450-457, 458; C. H. 261 seqq.; C. A. 188, 205, 216, 243; C. B. 1793, 1801 seqq.; C. L. 269 seqq., 258 seqq. Hence he cannot exceed the limits of administration. C. I. 296 seqq., 301; C. G. 456 seqq., 482; C. A. 229, 248; C. L. 269, 275; C. B. 1804, 1831. - The curator furnishes assistance and authority to him who is under his care. C. I. 318, 339, 342. - Therefore the power of tutor and curator is confined within definite limits, and in any matter of graver moment depends on the family council and even on the homologation, or confirmation, of the tribunal. C. I. 296, 297, 301; C. G. 457-1407; C. H. 269 seqq., 293 seqq.; C. A. 216, 222, 263 seqq.; C. B. 1821 seqq.; C. L. 74 seqq., 263 seqq.

Therefore both tutor and curator are bound to employ great fidelity in their own office, as a good father of a family, and if they fail gravely in fulfilling it, they sin gravely, even against justice by force of quasi-contract, and are bound to compensation of damages. C. I. 277, 302; C. G. 450, 469; C. A. 209, 210, 243; C. B. 1805, 1833, 1948; C. L. 220 seqq.; L. 341, 391, 918.

The tutor, unless he is the paternal or maternal grandfather, must give caution, from which, however, the family council can dispense him. C. I. 292. Cf. C. B. 1844; C. H. 252 seqq. From C. A. the tutor is not obligated to caution. Besides, at the beginning of the tutela he must draw up the state and inventory of the minor's goods. C. I. 281; C. G. 451; C. A. 222, 223, 224; C. H. 262; C. B. 1802.

Each year, while the tutela endures, unless he is the paternal or maternal grandfather, he must render an account of his administration to the family council, C. I. 303; or to the subrogated tutor, C. G. 470; or to the pupillary judge, C. A. 238, 239. Cf. C. H. 279 seqq.; C. B. 1837 seqq.; C. L. 249 seqq. - When the tutela has been completed, he is likewise bound to render an account of his administration, C. I. 302; C. G. 469; C. H. 281; C. B. 1890, and he is liable for less diligent administration, unless he is freed by legitimate prescription. C. I. 303; C. H. 287; C. B. 1835. - Inst. l. 1, t. 21.

139. Note: A tutor, or protutor, cannot buy or rent the goods of the minor, nor can he accept a cession of the minor's rights. No convention can be made between the tutor and the minor, nor can any testamentary disposition useful to him be made, before the account of the tutela has been rendered and approved. - Yet he has a right to compensation of expenses made by reason of the tutela, and to a suitable remuneration of his office. - C. I. 300, 307, 769, 1457; C. G. 156, 450, 472; C. H. 269, 270, 978, 975, 276, 285, 755, 571; C. A. 266, 271; C. B. 1785, 1789, 1805, 1834-1836; C. L. 272, 353 seqq.; L. 917.

A tutor or curator cannot make gratuitous donations or remissions from the goods of the pupil; he is constituted not for destroying, but for protecting. Except a remunerative donation; for thus he can, for example, add something to the stipend owed for liberal service, by a liberal donation. - Lugo, d. 23, s. 10, n. 12; L. 341; C. H. 275; C. B. 1804.

140. What are the obligations of the minor? - The tutor is in place of the father. Hence the obligations of minors toward him are similar to those which would be owed to the father himself. But the obligation of the minor toward the curator is less; nevertheless, as regards the administration of goods he ought to be subject to him, and to bear a grateful mind. Yet the minor, whether toward the curator or toward the tutor, is not obligated so strictly to love, reverence, and obedience as toward parents. For his dependence on them is far less than on parents. - C. L. 280; C. H. 265; C. A. 217.

141. What is the value of the acts of tutor and curator? - Those things which are done according to the laws, whether by tutor or by curator, are valid and firm, and therefore by no means subject to rescission, although they were not useful but harmful to him who was under tutela or cura. C. I. 1304; C. G. 1314. - On the contrary, those things which were not done according to the laws, although usefully managed, can be revoked through restitutio in integrum. Through restitution, for meanwhile they are valid. C. I. 1107, 335, 1300; C. G. 502, 1125, 1304; C. H. 1291; C. B. 1829 seqq.

142. How are tutela and cura ended? - They are ended, on the part of the tutor or curator, by his legitimate excuse, removal, death, or by the businesses committed to him now having been completed. On the part of him whose tutor or curator he is, by his majority of age, or by the cause of interdiction or incapacitation having ceased, or by his death. C. H. 278; C. A. 249, 251, 253, 255; C. B. 1883, 1892, 1895, 1912, 1914; C. L. 78.

What are the obligations of other relatives? - As to other relatives, ascendants and descendants, the obligations are generally the same, with due proportion, as those of parents with respect to children, and vice versa. For all these, by reason of generation, of some from others, are mutually bound by a strict bond of piety, especially if, when parents are lacking, ascendants take up the care of grandchildren. But theologians commonly teach that they ought to take up this care, in defect of parents and tutors, as long as they are minors, and as much as they conveniently can. Other things being equal, the paternal grandfather is bound to take up that care before the maternal grandfather, as the doctors commonly teach.

As to brothers and sisters, these ought to pursue one another with mutual love, not only by common affection, as other men, but by particular affection on account of the close bond of blood. They also ought to help each other mutually as to the necessities of life, not only in extreme necessity, but also in grave necessity. L. 340.

The remaining blood-relatives and collaterals are likewise bound mutually to furnish love and help in necessity, according to the order of the degrees of consanguinity. The reason is that conjunction of blood and descent from the same stock and principle of life induces this special obligation of piety. Hence, in defect of parents, or quasi-parents, and ascendants, collateral blood-relatives also succeed to the obligation of furnishing support to one in need in ordinary necessity and beggary, if they can, or unless others are present who wish liberally to relieve a similar necessity. Struggl 20. "It must be said that someone from what is proper to him must satisfy parents more, or those from whom he has received greater benefits." S. Th. 2. 2, q. 62, a. 5 ad 4.

Since conjunction with other blood-relatives is not so great as with parents and children, in order that piety be gravely injured against them, a certain greater harm inflicted upon them is required, though less against brothers and sisters than as to others less closely joined. But against more remote relatives a special grave malice against piety is absent.

What about support to be furnished, as to various blood-relatives and in-laws? - By the right of piety some ought to exhibit or feed others if they are in necessity. But to furnish support, in the first place a spouse is obligated; second, descendants; third, ascendants; fourth, son-in-law and daughter-in-law; fifth, father-in-law and mother-in-law; finally, brothers and sisters, which obligation indeed is reciprocal. C. I. 132, 138-142; C. G. 203, 205, 207, 212; C. L. 172; C. H. 143 seqq.; C. B. 1601 seqq.; C. He. 228 seqq. Ascendants are bound in the order of proximity. C. I. 138; C. H. 144; C. L. 173. But descendants are bound in that order by which they would be called to the legitimate succession of the person in need. C. I. 142; C. H. 144. Support is owed to brothers and sisters if they are in very grave necessity. C. I. 141; C. H. 143; and C. L. 174, in defect of parents and other ascendants; from C. He. 329, when they are sufficiently rich. In those places in which civil law does not obligate brothers and sisters to furnish support to brothers and sisters, nevertheless natural charity and piety press gravely if brothers or sisters have been constituted in grave necessity.

But as to other more remote blood-relatives, besides brothers, if they are in grave necessity, the obligation is still present, although light, "since toward them also there is some obligation of piety, although not so strict." L. 339, l. 3, n. 946; Lugo, de Iust. et Iur., d. 24, n. 176. Yet the obligation of piety is present more strictly toward other blood-relatives of the direct line. Mother-in-law and daughter-in-law lose support if they pass to other nuptials, or if the spouse from whom the affinity arose has died leaving no descendants. C. I. 140; C. G. 206.

Parents cannot deny support to children because, against their will, they contracted nuptials with unworthy persons. L. l. 3, nn. 337, 949. "Sanchez, etc., say that a father is bound to furnish support not only to the son, but also to his wife, although he married her without dowry and against the will of the father himself. Besides, Azor, etc., hold that a father must feed the son even if the son has viciously consumed the portion already previously handed over to him." L. 336, 337. "But it is certain that parents are bound to furnish support to children, even spurious children, and even those born from condemned intercourse, if they cannot be sustained from elsewhere." L. 951.

Nor indeed generally is it licit to deny support because he who asks it came to poverty by his own fault, except to brothers and sisters from C. I. 141; and from C. B. 1611 only strict sustenance is owed. From the same C. B. 1963, 1969, if, an inheritance having devolved, an heir to be born must be awaited, the mother who cannot provide for her own sustenance can demand support fitting to her social condition from the inheritance itself up to the birth. Likewise the heir is bound to furnish support to the members of the family of the deceased for a month from the inheritance devolved.

But how much must be furnished is to be estimated from the necessity of the one asking and from the resources of the one giving. C. I. 143; C. G. 208; C. H. 146; C. L. 178, 179. Support comprehends food, clothing, habitation, and other things necessary for life, and, according to circumstances, instruction fitting for the person. C. I. 846; C. H. 142; C. B. 1610; C. L. 171. But an option is given either of receiving the needy person at home, or of furnishing him a pension, unless the judge has established otherwise. C. I. 145; C. G. 210; C. H. 149. But because this obligation of furnishing support is from charity and piety, not from justice, he who does not furnish it is not bound to restitution, nor is he obligated toward the heirs of the deceased who had the right to it. C. I. 144, 146; C. G. 209; C. H. 148, 150, 151. Cf. C. A. 171; C. L. 176; L. 339, 356, 946, 949, 951.

The obligation of furnishing support can vary according as the conditions of him who furnishes it, or who needs it, have varied. C. I. 144; C. G. 209. It ceases altogether when he who needed support has died, although it was owed to him from sentence of the judge, C. I. 146, or from donation or legacy, because these things are personal. Therefore if by legacy it was owed for ten years, if the one to whom support was left dies before that, the right of support does not pass to his heirs.

What about repairing harms? - The question is generally raised: Is a superior bound to repair harm inflicted by his subjects?

R. Affirmatively in the external forum, according to the various laws in force in various regions. Generally this obligation of repairing harm on account of the deed of another is either from negligence in custody and vigilance to be used, or from the choice of persons whom we deputize to do something. Cf. C. I. 1153; C. G. 1384; C. H. 1903, in which express mention is made: 1. Of the father, and, when he has died, from C. G., or is lacking from C. I., of the mother in relation to minor children dwelling with them; and in C. I. and in C. H. of tutors in relation to those whose administrators they are, likewise dwelling with them. 2. Of the master and of the one commanding in relation to servants and mandatary persons in the exercise of functions to which they themselves destined them. 3. Of the teacher and craftsman in relation to students during the time in which they are under their vigilance. But nothing is established about the husband in relation to the wife.

Moreover, an obligation of this sort, whether in parents or in tutors, whether in masters and those commanding, whether in teachers and craftsmen, ceases, from each Law, Italian and French, whenever they prove that they could not have impeded the deed concerning which otherwise they would have to respond; or, from C. H., that they used due diligence. C. G. 1424. From C. B. 828 seqq., children before the completed seventh year by no means answer for harm inflicted. After the seventh year and before the eighteenth year, they answer for it if necessary discretion was not lacking. But those who ought to watch over them must repair the harm if they omitted to use due diligence. The same is established about one commanding another some business, if this other inflicts harm on another in the execution of that business, unless the one commanding used ordinary diligence. From C. He. 333, the head of the family, or of domestic communion, answers for harm inflicted by a member of it who is a minor, interdicted, or of infirm mind, unless he demonstrates that ordinary diligence required by the circumstances was used.

R. Negatively, speaking generally, in the internal forum. The reason is that the quality of superior brings only the burden of governing subjects rightly, but by no means the obligation from a debt of justice of impeding harms of his own subjects, and much less of others who are not subjects, unless he ought to impede them either from a special contract or from a special office. Hence a private schoolmaster who does not correct students stealing or detracting from others, although he ought to imbue them with good morals and receives payment for this, nevertheless is by no means bound to restitution to those from whom the students steal or whom they detract, since nothing was done with them.

Speaking generally; for they who preside over others are bound concerning harm if they do not prohibit it in that thing or office in which they ought to be over them, for example, if the apprentice of a pharmacist gave poison instead of medicine, provided they do not lack grave fault. The same altogether holds if from your animal, or from your thing, with your fault harm happened to another, if, for example, your dog, untied, bit one entering, or your house, collapsed from age, killed several. Inst. 1, l. 1, t. 7; l. 4, tt. 5, 8; Dig. 1. 47, t. 5; C. A. 1308, 1309, 1314-1316; C. L. 2394 seqq.; Gousset 963 seqq.

What are tutor and curator; and to whom are they given? - To those who cannot protect themselves and their own, if they are not under paternal power, a tutor or curator is given. C. A. 187; C. B. 1773. Tutor and curator differ from each other: 1. because a tutor is given principally to the person, secondarily to things. But a curator is given either only to things, or principally to things, and only secondarily to the person, at least regularly speaking. C. A. 188, 209; C. B. 1793, 1794, 1909.

2. They differ because a tutor cannot be given for a certain thing and cause. But a curator can be given for certain things and determined causes. And thus C. I. 980; C. B. 1961, a curator is assigned to an unclaimed inheritance; C. A. 274, 690; C. L. 157; C. B. 1912, a curator is given to the inheritance of future offspring to be born, and to an inheritance when legacies burden it whole and the heir refuses to administer it. C. B. 1911; C. L. 55 seqq., a curator is given to the goods of one absent. C. B. 1913, 1914, a curator is given to the goods of an unknown owner, and to goods coming from public collections when their administrators are lacking.

3. He who is under tutelage can do absolutely nothing. He who is under care, if he is an emancipated minor, can with the assistance of the curator demand principal sums and pursue judgments, C. I. 318; C. G. 482; if he is a major declared incapable, or deaf-mute or blind from birth, he can do all things with the assistance of the curator. C. I. 339, 340; C. G. 513; C. A. 269, 270.

4. They differ from Common Law, because a tutor is regularly given to a ward or one below puberty, and to him who is compared to one below puberty. But a curator is given to a minor or pubescent up to the twenty-fifth year of age. Inst. 1, l. 1, tt. 13, 23; Ferraris, v. Tutela, 10 seqq. From More Recent Law, a tutor is given to a non-emancipated minor and to one interdicted from the administration of goods. But a curator is given to a son soon to be born; to a minor called to an inheritance; to an emancipated minor; to a major declared incapable because of infirmity of mind or prodigality; to an absent person; to a deaf-mute, or one blind from birth. C. I. 236, 241, 245, 247, 277, 314, 315, 329, 339, 340; C. G. 389, 393, 405, 450, 482, 505, 509, 513; C. B. 1773, 1893, 1901, 1909-1914; C. L. 55, 65, 317, 337, 349, 356. From C. H. 199, 200 no distinction is had between tutor and curator as to name; but as to the thing it is preserved. For a tutor is given both to the person and goods, and only to goods. Subject to tutelage are non-emancipated minors, the insane, deaf-mutes, prodigals, and the interdicted. Almost the same is had in C. A. 187, 188, 269, 270, 275.

But in any tutelage a protutor must also be chosen, whose role it is to supply the place of the tutor and protect the minor if the minor's good is opposed to the good of the tutor. C. I. 265; C. G. 420; C. H. 201, 234; C. L. 205. Cf. C. A. 211, 215; C. B. 1791, 1799; L. 917; C. L. 187 seqq.

Who designates a tutor; who can be tutors? - R. To the first: The following can give a tutor: The parent who dies last, either by testament or by public instrument, C. I. 242; cf. C. A. 196, 197; C. H. 206; the family Council, if the parent did not designate and those whom the law designates are lacking, C. I. 245; cf. C. A. 198, 199; C. H. 204, 211, 212, 231; the council of tutelage and the judge in certain cases, C. I. 248, 261, 262; C. A. 189, 190, 199, 204. The family Council is constituted for legitimate children; the Council of tutelage for acknowledged illegitimate children. C. I. 249, 261; C. B. 1774 seqq., 1852 seqq., 1858 seqq.; C. L. 203.

R. To the second: Since the tutelage of minors is a public office, filled with many cares, not all can assume it, nor can all reject it or ought they to; but only persons capable by law and designated by law. C. I. 268 seqq.; C. G. 427 seqq.; C. H. 202, 203, 237 seqq., 244 seqq.; C. A. 191 seqq., 201; C. L. 186 seqq. Tutelage and care by law belongs to the spouse, father, mother, paternal grandfather, maternal grandfather, C. I. 315, 330; C. G. 402 seqq.; C. B. 1776, and, these being lacking, to the nearer blood-relatives. C. A. 198. Cf. C. L. 200, 201, 227 seqq.; Inst. 1, l. 1, tt. 14-20, 25, 26; C. B. 1776 seqq.; C. L. 200.

What are the duties of tutor and curator? - A tutor has care of the person of the minor and of his education, especially religious education, and represents him in civil acts, and merely administers his goods. C. I. 277, 296, 318; C. G. 450, 457, 481; C. H. 261 seqq.; C. A. 188, 205, 216, 243; C. B. 1793, 1801 seqq.; C. L. 243 seqq., 258 seqq. Hence he cannot exceed the limits of administration. C. I. 296 seqq., 301; C. G. 456 seqq., 482; C. A. 233, 484; C. H. 269, 275; C. B. 1804, 1831. A curator furnishes assistance and authority to him who is under his care. C. I. 318, 339, 432. Therefore the power of tutor and curator is confined within certain limits, and in any matter whatever of graver moment is dependent upon the family Council and even upon the homologation, or confirmation, of the tribunal. C. I. 296, 297, 301; C. G. 457, 467; C. H. 269 seqq., 293 seqq.; C. A. 216, 233; C. B. 1803 seqq.; C. L. 74 seqq., 263 seqq.

Therefore both tutor and curator are bound to use great fidelity in their own office, as a good father of a family, and if he gravely fails in fulfilling it, he sins gravely, even against justice, by force of a quasi-contract, and they are bound to compensation of harms. C. I. 277, 302; C. G. 450, 469; C. A. 202, 204, 228, 264, 265; C. B. 1805, 1833, 1848; C. L. 220 seqq.; L. 341, 917, 918.

A tutor, unless he is the paternal or maternal grandfather, must give surety, from which however the family council can dispense him. C. I. 292. Cf. C. B. 1844; C. H. 252 seqq. From C. A. 237, a tutor is not obligated to surety. Besides this, from the beginning of tutelage he must make a statement and inventory of the goods of the minor. C. I. 281; C. G. 451; C. A. 222, 223, 224; C. H. 264; C. B. 1802.

Each year, while tutelage lasts, unless he is the paternal or maternal grandfather, he must render an account of his administration to the family Council, C. I. 303; or to the substituted tutor, C. G. 470; or to the pupilary judge, C. A. 238, 239. Cf. C. H. 279 seqq.; C. B. 1837 seqq.; C. L. 249 seqq.

When tutelage has been completed, he is likewise bound to render an account of his administration, C. I. 302; C. G. 469; C. H. 281; C. B. 1890, and he is bound concerning less diligent administration, unless he is freed by legitimate prescription. C. I. 309; C. G. 475; C. H. 287; C. B. 1833; Inst. 1, l. 1, t. 21. Acts of the family council and tutor need the homologation of the tribunal when the matter concerns alienation of the goods of the minor, receiving money by loan, and other graver matters. Homologation is ratification, confirmation.

Note: The tutor or protutor cannot buy or hire the goods of the minor, nor can he accept the cession of the rights of the minor. No agreement can be made between tutor and minor, nor can any testamentary disposition useful to them be made before the account of tutelage has been rendered and approved. Yet he has the right to compensation for expenses made by reason of tutelage, and to fitting remuneration for his office. C. I. 300, 307, 769, 1457; C. G. 156, 450, 472, 907; C. H. 269, 270, 275, 276, 285, 753; C. A. 266, 271; C. B. 1795, 1796, 1805, 1834-1836; C. L. 73, 243 seqq.; L. 917.

You will resolve: A tutor or curator cannot make donations or gratuitous remissions from the goods of the ward; he is constituted not for destroying, but for protecting. Except a remuneratory donation; for thus he can, for example, add something by liberal donation to a stipend owed for liberal service. Lugo, d. 23, s. 10; L. 341; C. H. 275; C. B. 1804.

What are the obligations of a minor? - A tutor is in the place of a father. Hence the duties of a minor toward him are similar to those which would be owed to the father himself. But the obligation of a minor toward a curator is lesser; yet as to administration of goods he must both be subject to him and bear a grateful mind. Yet a minor is not bound, whether toward curator or toward tutor, as strictly to love, reverence, and obedience as toward parents. For his dependence upon them is far less than upon parents. C. I. 280; C. H. 263; C. A. 217.

What is the value of the acts of tutor and curator? - Those things which are done according to the laws, whether by tutor or by curator, are valid and firm, and therefore by no means liable to rescission, although they were not useful, but harmful, to him who was under tutelage or care. C. I. 335, 1300, 1304; C. G. 1314. On the contrary, those things which were not done according to the laws, although usefully managed, can be revoked through restitution in full. Through restitution; for meanwhile they are valid. C. I. 1107; C. G. 502, 1125, 1304; C. H. 1291; C. B. 1829 seqq.

How do tutelage and care end? - They end on the part of the tutor or curator by his legitimate excuse, removal, death, or by the affairs committed to him now completed. On the part of him whose tutor or curator he is, by his majority of age, or when the cause of interdiction or inhabilitation has ceased, or by his death. C. H. 278; C. A. 249, 251, 253, 283; C. B. 1882 seqq.; C. I. 388, 342; C. G. 512, 514.

Offices. Of the other blood-relatives some are ascendants or descendants in the direct line, others collaterals. Cognates of the direct line are bound by offices of piety similar to those by which parents and children are bound, and that by reason of themselves, since ascendants have really given origin, and grandchildren and descendants have really received it. Yet the obligations are lesser in degree. These urge more strictly when parents and children are lacking, so that ascendants are as parents to grandchildren.

In the collateral line, piety chiefly imposes love and mutual aids. Wherefore the grave obligation of helping in grave necessity, which, as regards other neighbors, is disputed, cannot be doubtful among brothers. And civil laws also sanction the obligation of support among brothers. Yet theologians deny that, in order to relieve the poverty of a brother, a religious already professed must depart from religion. Among other cognates of the collateral line, there is now no grave obligation of piety, so that contrary sins are not judged to differ from a violation of common charity.

Among ascendants and descendants there exist obligations the same in species, but lesser in degree, as among parents and children. In the collateral line, piety imposes love and mutual aids; but a grave obligation is not extended beyond the first degree.

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.

590. Scholion. On the obligations of piety among other relatives. From the virtue of piety there arise similar, though unequal, obligations also among other relatives in the nearer degrees, namely, toward a grandfather, grandmother, grandson, granddaughter, brother, and sister. But the obligations toward more remote relatives are the same as those dictated by common charity toward one's neighbor.

First I say, that these owe one another support out of justice in extreme indigence.

So Azor. Tom. 2. lib. 11. cap. 40. question 1. Fagund. lib. 4. cap. 16. For if they are bound to outsiders, much more to brothers and sisters.

In grave necessity also, when they have not wherewith to live according to their state, rich brothers are bound in either forum to provide support, and the Judge, when appealed to, is bound to bind them to it.

A poor sister by both parents a brother is bound in either forum to support and dower. It is the common opinion, as cited by Fagundez cap. 16.

Say the same of a sister by the same father, but a different mother; we have leg. cum plures, §. Cum tutor ff. de administr. tutorum, which excludes only uterine sisters, as Bartholomew notes there in the final §. It excludes, however, as to dowering according to her opulent state, unless she is heir of the mother's goods; they are bound, nevertheless, always to support her. So Barthol. loc. cit. and others, as cited by Fagundez num. 4. He is bound, however, always to dower her to the measure of support, namely, in place of a dowry, by setting aside what would have been expended on support.

So conversely rich sisters are bound to dower poor sisters, and brothers to support them together with them. It is clear from the rule of correlatives. So Barbosa Tom. 1. part. 4. leg. 1. ff. soluto matrim. Fagundez cap. 16. num. 14.

Clerics are bound also to support their parents, brothers, and sisters that are poor from the revenues of the Church. So many, as cited by Fagundez cap. 17. num. 1.

The reason is that the fruit of a benefice is for the uses of the poor, much more of one's own household. If in cap. Pervenit. the contrary seems to be said, understand it of rich kinsmen, to whom the fruits of the benefice are not to be communicated, but rather to outside paupers.

I say also that one may dower needy daughters or sisters from the fruits of a benefice, but is not bound to. See Fagundez num. 2.

The question here demands: whether sons who gravely squander their goods beyond the others are bound to bring them to the collation with their brothers, and to recall their own legitimate portion.

Indeed I have seen very many holding such to be at fault, and I judge them bound. So Navarr. summa, cap. 17. Sylvester under the word peculium, 2. question 9. Antonius Gomez ad leg. 29. Tauri; nevertheless Navarrus, with St. Antoninus 2. part. tit. 1. cap. 15. excepts unless the father while living forgave it; but this does not please me, because he is bound to bring to partition even those things which the father gave.