[ULPIANUS libro trigesimo sexto ad Sabinum. ] §26.2.10.prSi hereditas nondum adita sit, ex qua tutor speratur, uerius est alium tutorem posse dari, quasi nondum sit, nec speretur.
[ULPIANUS, from the thirty-sixth book on Sabinus.] If an inheritance has not yet been entered upon, from which a guardian is expected, it is more correct that another guardian can be given, as if there were not yet any, nor were one expected.
§26.2.10.1In tutelis testamentariis id sequimur quod nouissimum est, et si saepius tutor datus sit, nouissimam scripturam intuemur.
In testamentary guardianships we follow that which is latest, and if a guardian has been appointed multiple times, we look to the latest writing.
§26.2.10.2Qui filium et ex eo nepotem habebat, si nepoti tutorem dederit, habet disceptationem, an aliquo casu non sit utilis datio: ut puta si proponas filium uiuo patre decessisse et nepotem ex eo successisse uiuo auo.
A person who had a son and a grandson by him, if he appointed a guardian for the grandson, has a dispute as to whether in some case the appointment is not useful: as, for example, if you suppose that the son died while his father was alive, and the grandson succeeded him while the grandfather was alive.
et fortius dicendum est tutelam quoque e lege Iunia Uellea confirmatum: nam et Pomponius libro sexto decimo ex Sabino scripsit ualere tutoris dationem.
And it must be said more strongly that the guardianship also was confirmed by the Lex Junia Velleia: for Pomponius also wrote in his sixteenth book on Sabinus that the appointment of a guardian is valid.
cum enim confirmatum sit testamentum, consequenter tutoris quoque datio ualebit in eo testamento scripta quod ualet, id est ubi nepos uel heres institutus sit uel nominatim exheredatus sit.
For when a will has been confirmed, consequently the appointment of a guardian written in that will which is valid will also be valid, that is, where the grandson is either instituted as heir or expressly disinherited by name.
§26.2.10.3Si furiosus testamento tutor detur, si quidem, cum furere desierit, tutorem esse recte datum Proculus existimat: quod si datus sit pure, negat Proculus ualere dationem.
If a person of unsound mind is appointed as guardian by a will, Proculus thinks that if indeed he is appointed "when he ceases to be insane", the appointment is correct; but if he is appointed unconditionally, Proculus denies that the appointment is valid.
sed est uerius, quod et Pomponius ait, recte uideri datum et tunc fore tutorem, cum sapere coeperit.
But it is more correct, as Pomponius also says, that he is deemed to be correctly appointed, and will be the guardian when he begins to be of sound mind.
§26.2.10.4Seruus alienus ita dari tutor potest 'si liber erit, tutor esto'. quin immo et si pure datus sit, uidetur inesse haec condicio 'cum liber erit'.
Another person's slave can be appointed as guardian in this way: "if he shall be free, let him be guardian." Nay, indeed, even if he is appointed unconditionally, this condition "when he shall be free" is deemed to be implied.
potest autem quis et extraneo seruo defendere ex hac causa fideicommissariam libertatem: quid enim interest, suum seruum an alienum tutorem scripserit, cum pupilli fauore et publicae utilitatis adsumpta libertas sit in persona eius, qui tutor scriptus est? potest igitur et huic fideicommissaria libertas defendi, si uoluntas apertissime non refragetur.
Moreover, anyone can, on this ground, claim trust-bequeathed freedom even for another's slave: for what difference does it make whether one has written one's own slave or another's as guardian, when freedom has been assumed in the person of him who was written as guardian for the favor of the ward and for public utility? Therefore, trust-bequeathed freedom can be claimed for this person as well, if the testator's will does not most clearly oppose it.