[TRYPHONINUS libro tertio decimo disputationum. ] §27.10.16.prSi furioso puberi quamquam maiori annorum uiginti quinque curatorem pater testamento dederit, eum praetor dare debet secutus patris uoluntatem: manet enim ea datio curatoris apud praetorem, ut rescripto diui Marci continetur.
[TRYPHONINUS, in the thirteenth book of Disputations.] If a father has by will appointed a curator for a madman who is of pubertal age, although over twenty-five years old, the praetor must appoint him, following the father's wish; for that appointment of a curator remains in the hands of the praetor, as is contained in the rescript of the divine Marcus.
H §27.10.16.1is consequens est, ut et si prodigo curatorem dederit pater, uoluntatem eius sequi debeat praetor eumque dare curatorem.
From this it follows that even if a father has appointed a curator for a prodigal, the praetor must follow his wish and appoint him as curator.
sed utrum omnimodo, an ita, si futurum esset, ut, nisi pater aliquid testamento cauisset, praetor ei bonis interdicturus esset? et maxime si filios habeat iste prodigus?
But is this to be done in every case, or only if it would have happened that, unless the father had made some provision in his will, the praetor would have interdicted him from his property? And especially if that prodigal has children?
§27.10.16.2Potuit tamen pater et alias prouidere nepotibus suis, si eos iussisset heredes esse et exheredasset filium eique quod sufficeret alimentorum nomine ab eis certum legasset addita causa necessitateque iudicii sui: aut si non habuit in potestate nepotes, quoniam emancipato iam filio nati fuissent, sub condicione eos heredes instituere, ut emanciparentur a patre prodigo.
However, the father could also have provided for his grandchildren in other ways, if he had ordered them to be heirs and had disinherited his son, bequeathing to the son a certain sum from them under the name of maintenance which would be sufficient, adding the reason and the necessity of his decision; or, if he did not have the grandchildren in his power because they were born after the son had already been emancipated, by instituting them as heirs under the condition that they should be emancipated by their prodigal father.
§27.10.16.3Sed quid si nec ad hoc consensurus esset prodigus? sed per omnia iudicium testatoris sequendum est, ne, quem pater uero consilio prodigum credidit, eum magistratus propter aliquid forte suum uitium idoneum putauerit.
But what if the prodigal would not consent even to this? Yet in all things the decision of the testator must be followed, lest the magistrate, perhaps through some fault of his own, should deem him suitable whom the father, on true consideration, believed to be a prodigal.