[TRYPHONINUS libro nono disputationum. ] §23.2.67.prNon solum uiuo tutore, sed et post mortem eius filius tutoris ducere uxorem prohibetur eam, cuius tutelae rationi obstrictus pater fuit: nec puto interesse, exstiterit ei heres filius an abstinuerit paterna hereditate an nec heres fuit (forte exheredatus aut praeteritus emancipatus): nam et fieri potest, ut per fraudem in eum collocata bona patris propter tutelam reuocari oporteat.
[TRYPHONINUS, in the Ninth Book of Disputations.] The son of a tutor is forbidden to marry a woman to whose administration of tutelage his father was bound, not only during the lifetime of the tutor, but also after his death; and I think it makes no difference whether the son became his heir, or abstained from his father's inheritance, or was not an heir at all (for instance, if he was disinherited or omitted, being emancipated). For it can also happen that the father's property, transferred to him through fraud in relation to the tutelage, may have to be recovered.
§23.2.67.1De uno dubitari potest, si auus tutelam gessit neptis ex filio emancipato natae, an nepoti ex altero filio eam collocare possit siue emancipato siue manenti in potestate, quia par affectionis causa suspicionem fraudis amouet.
Regarding one point, doubt can be raised: if a grandfather administered the tutelage of a granddaughter born of an emancipated son, whether he can give her in marriage to a grandson born of another son, whether emancipated or remaining under his power, because the equal cause of affection removes the suspicion of fraud.
sed etsi senatus consultum stricto iure contra omnes tutores nititur, attamen summae affectionis auitae intuitu huiusmodi nuptiae concedendae sunt.
But although the senate decree by strict law is directed against all tutors, nevertheless, in view of the greatest grandfatherly affection, marriages of this kind ought to be allowed.
§23.2.67.2Sed et si filius familias tutor puellae uel curator fuit, puto uel magis patri eius non oportere eam nubere: numquid nec fratri, qui est in eiusdem potestate?
But even if a son of the family was the tutor or curator of a girl, I think all the more that she ought not to marry his father; and is this not also the case for a brother who is under the same power?
§23.2.67.3Sed uideamus, si Titii filius duxerit uxorem eam, quae tua pupilla fuit, deinde Titium uel filium eius adoptaueris, an peremuntur nuptiae (ut in genero adoptato dictum est) an adoptio impeditur? quod magis dicendum est et si curator, dum gerit curam, adoptauerit maritum eius puellae, cuius curator est.
But let us see, if Titius's son married a woman who was your ward, and then you adopt Titius or his son, is the marriage dissolved (as is said in the case of an adopted son-in-law) or is the adoption barred? This must be said even more if a curator, while exercising his care, adopts the husband of the girl whose curator he is.
nam finita iam tutela et nupta puella alii uereor, ne longum sit adoptionem mariti eius impedire, quasi propter hoc interponatur, ut ratio tutelae reddendae cohibeatur, quam causam prohibitionis nuptiarum contrahendarum oratio diui Marci continet.
For when the tutelage is already ended and the girl is married to another, I fear it would be going too far to bar the adoption of her husband, as if it were interposed for this purpose, that the rendering of the account of tutelage might be prevented—which cause of prohibition of contracting marriage is contained in the speech of the Divine Marcus.
§23.2.67.4Et si quis curator uentri bonisque datus sit, prohibitionem eiusdem senatus consulti inducit: nam et hic debet rationem reddere.
And if anyone is appointed curator for an unborn child and the goods, this brings about the prohibition of the same senate decree; for he too must render an account.
nec spatium administrationis mouere nos debet, quia nec in tutore nec curatore discrimen maioris aut minoris temporis, quo in huiusmodi munere quis fuerit, habitum esse.
Nor should the duration of his administration affect us, because neither in the case of a tutor nor a curator has any distinction of a longer or shorter time, during which someone was in such an office, been made.
§23.2.67.5Si puellae tutelam Titius administrauit uel curator negotia gessit eaque nondum recepta ratione decessit filia herede relicta, quaerenti, an eam filio suo posset Titius collocare in matrimonium, dixi posse, quia ratio hereditaria esset et sit simplex debitum: alioquin omnis debitor eam, cui obligatus esset ex aliqua ratione, prohibetur sibi filioque suo coniungere.
If Titius administered the tutelage of a girl or as curator managed her affairs, and she died before the account was received, leaving her daughter as heir, to one inquiring whether Titius could give her in marriage to his son, I said that he could, because the account was hereditary and is a simple debt; otherwise, every debtor would be forbidden to join to himself or his son a woman to whom he was obligated for any reason.
§23.2.67.6Sed et is, qui pupillam abstinet bonis patris sui, rationem eius rei praestare debet et fieri potest, ut etsi inconsultius hoc fecerit, et hoc nomine condemnari debeat.
But he also who makes a ward abstain from the goods of her father must render an account of that matter, and it can happen that, even if he did this somewhat imprudently, he ought to be condemned on this account.
sed et si optimo consilio usus sit auxilio praetoriae iurisdictionis, quia non soluendo pater eius decesserat, nihilo minus tamen, quia iudicio hoc probari oportet, impediuntur nuptiae: nam qui bene tutelam et ex fide administrauit, nihilo minus prohibetur.
But even if he acted on the best advice with the aid of the praetorian jurisdiction, because her father died insolvent, nevertheless, because this must be proved in a trial, the marriage is barred; for he who administered the tutelage well and faithfully is nonetheless forbidden.