[SCAEUOLA libro secundo responsorum. ] §27.1.37.prQui testamento tutor datus fuerat, adito praetore dixit se tres liberos habere, adiecit praeterea habenti patruum legitimum tutorem se uitiose tutorem datum.
[SCAEVOLA, from the second book of Opinions.] A person who had been appointed tutor by testament, having approached the praetor, said that he had three children, and added moreover that he had been appointed tutor defectively for one who already had a paternal uncle as his statutory tutor.
praetor ita decreuit: 'si legitimum tutorem habenti tutor datus es, non est tibi necessaria excusatio'. quaero, cum nemo patruus impuberi tutor esset, an nihilo minus tutor remansit.
The praetor decreed as follows: 'If you have been appointed tutor for one who has a statutory tutor, an excuse is not necessary for you.' I ask, since no paternal uncle was tutor to the pupil, whether he nevertheless remained tutor.
respondi secundum ea quae proponerentur, quamuis iustas excusationis causas haberet, non tamen esse excusatum propter uitium pronuntiationis.
I replied that, according to the facts proposed, although he had just causes for excuse, he was nevertheless not excused because of the defect in the decree.
§27.1.37.1Item quaero, si adquieuisset sententiae, an ob id, quod non gessit tutelam, utilis actio in hunc dari debeat.
I also ask, if he had acquiesced in the decision, whether on account of this, that he did not conduct the guardianship, an equitable action ought to be granted against him.
respondi, si errore potius (quod se pro iure trium liberorum, quod allegabat, excusatum crederet) quam malitia ab administratione cessasset, utilem actionem non dandam.
I replied that, if he had ceased from administration by error (because he believed himself to be excused by virtue of the right of his three children, which he was alleging) rather than by malice, the equitable action ought not to be granted.