[PAULUS libro sexto quaestionum. ] §27.1.31.prSi is, qui tres tutelas administrabat, duobus pupillis diuersis decretis datus est qui potuit excusari, et priusquam causas excusationis allegaret, unus ex pupillis, quorum iam tutelam administrabat, decessit, ubi desiit ei competere excusatio, statim tenuit eum prius decretum, quasi in loco tertiae tutelae quarta subroganda: nam ipso iure tutor est et antequam excusetur.
[PAULUS, from the sixth book of Questions.] If a person who was administering three guardianships was appointed by different decrees to two wards [and thus] was in a position to be excused, and before he could allege the grounds for excuse, one of the wards whose guardianship he was already administering died, when the excuse ceased to apply to him, the prior decree immediately bound him, as if the fourth [guardianship] were to be substituted in place of the third: for he is tutor by operation of law even before he is excused.
potuit ergo tutela eius, qui nunc quarto loco inuenitur, excusari: sed cum non sit excusatus, necessario subeundum est onus illius quoque tutelae.
Therefore, the guardianship of him who is now found in the fourth place could have been excused: but since he was not excused, the burden of that guardianship also must of necessity be undergone.
nec me mouet, quod dicat aliquis hoc ne exigi, an administretur tutela: hoc enim eo pertinet, ne sit finita administratio: ceterum si periculum sustineat cessationis, puto ei imputandam eam quoque tutelam.
Nor am I moved by the objection that some might say that it is not required to ask whether the guardianship is actually being administered: for this pertains to the point that the administration is not finished; but if he bears the risk of cessation, I think that guardianship too must be imputed to him.
§27.1.31.1Idem euenire potest, si duobus testamentis, cum haberet tres tutelas, tutor datus est: ubi non apertarum tabularum tempus inspici debebit, si quaeratur, quae prior delata sit tutela, sed aditae hereditatis uel condicionis existentis.
The same can happen if, when he had three guardianships, he was appointed tutor by two wills: where, if it is asked which guardianship was first offered, we must inspect not the time when the tablets of the will were opened, but the time when the inheritance was entered upon or the condition was fulfilled.
§27.1.31.2Illa quoque erit differentia tutelarum, de quibus diximus, si tertia et quarta sit delata, licet in quartam prius detentus sit, quod huius, id est quartae, ex quo iussus est administrare, illius ex quo datus est periculum sustinet.
There will also be this difference between the guardianships of which we spoke, if a third and a fourth are offered, although he was first held to the fourth, namely, that he bears the risk of the latter, i.e., the fourth, from the moment he is ordered to administer it, but of the former from the moment he is appointed.
§27.1.31.3Eum, qui pupillum bonis paternis abstinuerat, detinendum in quarta tutela existimaui quasi deposita illa.
I held that a person who had made his ward abstain from his father's estate should be held to a fourth guardianship, as if that [previous] one had been laid down.
§27.1.31.4Ceterum putarem recte facturum praetorem, si etiam unam tutelam sufficere crediderit, si tam diffusa et negotiosa sit, ut pro pluribus cedat.
For the rest, I should think that the praetor would act rightly if he believed that even a single guardianship is sufficient, if it is so extensive and troublesome that it counts for several.
neque igitur fratres consortes plurium loco habendi sunt, neque non fratres, si idem patrimonium habent et ratio administrationis pariter reddenda sit.
Therefore, neither brothers who are partners are to be regarded in the place of several [guardianships], nor those who are not brothers, if they have the same patrimony and the account of administration is to be rendered in common.
et ex diuerso fratres diuiso patrimonio duae tutelae sunt: non enim, ut dixi, numerus pupillorum, sed difficultas rationum conficiendarum et reddendarum consideranda est.
And conversely, brothers with divided patrimony constitute two guardianships: for, as I said, it is not the number of wards, but the difficulty of preparing and rendering the accounts that must be considered.