father had the usufruct. Peculium profecticium, according to Voet, comprises (1) gifts made by sponsors at baptism, which are deemed to be made to the father, not to the child;[1] (2) anything acquired by children residing at home and supported by their parents, whether acquired suis operis or ex re patris. Schorer is to the same effect. ‘What children acquire by their own labour and industry, while supported by their parents, is acquired for their parents,’ being set off against the cost of maintenance.[2] Adventitious property, however, i.e. property coming to the child from sources other than the above, belongs to the child in full ownership, and the father has no usufruct therein, unless this has been expressly conferred upon him by the person from whom the property is derived, or unless it is necessary for him to use the property and apply its proceeds about the maintenance and upbringing of the minor child.[3]
Thus far of the incidents of the parental power. It remains to see how it is acquired and lost.
How the parental power is acquired: how lost.
The parental power is acquired[4] by: (1) birth in lawful wedlock; and (2) legitimation by subsequent marriage;[5] but not, as amongst the Romans, by adoption.[6] It is determined by: (1) the death of parent or child;[7] (2) emancipation, which is either (a) judicial, i.e. by order- ↑ Voet, 15. 1. 4; but see Van Leeuwen, 3. 16. 7; and V. d. K. Th. 104.
- ↑ Gr. 1. 6. 1; and Schorer ad loc.; Van Leeuwen, 2. 7. 7; Voet, 15. 1. 4 and 25. 3. 14. For Brit. Gui. see Rego v. Cappell (1901) Brit. Gui. Off. Gaz., vol. xiii, p. 704, where it was held that the property acquired by a minor by his labour belongs to himself, and not to his parents, and consequently is not executable for their debts [G.].
- ↑ Van Leeuwen, 1. 13. 2, and Decker ad loc.; Voet, 14. 1. 6; Schorer, ubi sup.; V. d. K. Th. 105.
- ↑ Voet, 1. 6. 4.
- ↑ Gr. 1. 12. 9; and Schorer ad loc.; Voet, 25. 7. 6; V. d. L. 1. 4. 3. Legitimation by act of the Sovereign is disused in Cape Colony (1 Maasd. p. 9), and probably elsewhere.
- ↑ Gr. 1. 6. 1; Van Leeuwen, 1. 13. 3; Voet, 1. 7. 7; V. d. L. 1. 4. 2; Robb v. Mealey's Exor. (1899) 16 S. C. 133. But see V. d. K. Th. 102.
- ↑ Voet, 1. 7. 9.
Groenewegen in notis ad Grot. loc. cit. and de leg. abr. ad Inst. 3. 20 (19). 6, says that this no longer obtains. See also V. d. K. Th. 485.
