This is seen when we consider the relation of guardians testamentary or dative to a surviving spouse. Guardianship certainly does not exclude the parental power,[1] but neither is it excluded by it. A surviving parent, it must be remembered, was not, as such, guardian of the property of his or her minor children,[2] however much parental power might imply control of the person. Accordingly such parent, unless appointed by the deceased spouse[3] or by the Orphan Chamber or Court,[4] could not lawfully intermeddle with the estate.[5] This seems somewhat extreme in the case of the father, who having been sole administrator of the minor's property during the subsistence of the marriage, might reasonably expect to continue to exercise the same functions after his wife's death, at all events as regards property not coming to the child ex parte materna. The reasonableness of this claim is recognized by the law of South Africa, which gives the father the exclusive control of the person and also of the property of his minor children, during the whole of his life, and even permits him to bestow equally extended powers upon guardians appointed by his will to act after his death.[6] This would seem to exclude the mother altogether from the control of the persons of her own minor children,[7] which in the Dutch Law she exercised concurrently with the testamentary guardians.[8]
On the other hand, when no testamentary guardians have been appointed she is solely entitled to the control- ↑ Gr. 1. 7. 8; Hoola van Nooten, vol. i, p. 569.
- ↑ Gr. ubi sup.; Voet, 26. 4. 4. But the parents had a prior claim to be appointed, and usually were appointed, to act concurrently with one or two other tutors dative. Gr. 1. 7. 11–12.
- ↑ Van Leeuwen, 1. 16. 3.
- ↑ Gr. 1. 7. 10.
- ↑ Gr. 1. 7. 8; Voet, 26. 4. 4. In Brit. Gui. a father has never been required to apply to the Court to be appointed guardian of his minor children along with another person named as guardian in the will of a deceased mother [G.].
- ↑ Van Rooyen v. Werner (1892) 9 S. C. 425.
- ↑ Ibid., per de Villiers C. J. at p. 431. But a deceased father cannot exclude the mother except by appointing a testamentary guardian in her place. Voet, 27. 4. 2.
- ↑ V. d. K. Th. 118.
