Guardianship
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majority may have been anticipated by marriage or venia aetatis;[1] (2) women, except a mother and grandmother, and they only so long as they have not contracted a second marriage;[2] (3) creditors and debtors of the minor, if the debt is considerable and the Court sees fit to exclude them.[3]
To these the laws of the Cape and of the Transvaal add: (4) any person who as witness has attested the execution of any will which appoints such person guardian, and the wife or husband of such person.[4]
Others may excuse themselves;
The second class includes: (1) soldiers;[5] (2) persons already burdened with three guardianships; (3) persons upwards of seventy years of age; (4) persons disqualified by sickness or infirmity. This list is not exhaustive; nor by the common law can any one claim exemption as of right. In fact, no rigid rule can be laid down; for in the modern law the whole matter lies in the discretion of the Court.[6] but in South In South Africa, however, excuses are unneces-- ↑ Voet, 26. 1. 5; V. d. K. Th. 112; Schorer ad Gr. 1. 7. 11; Hoola van Nooten, vol. i, p. 572. Cf. Voet, 26. 4. 2. But a surviving spouse, though under age, may, it seems, be guardian to his or her children.
- ↑ Gr. 1. 7. 6 and 11; Voet, 26. 1. 2; V. d. K. Th. 114. But see Maasdorp, vol. i, p. 267, and Schorer ad Gr. 1. 7. 11. A married woman may not be appointed curator over her husband if insane or prodigal. V. d. K. Th. 168. In South Africa, by the Administration of Estates Act, 1913, sec. 83: (1) The provisions of this Act in regard to the election and appointment of tutors and curators shall apply to males and females; (2) Letters of confirmation shall not, without the consent in writing of her husband, be granted to a woman married in community of property or to a woman married out of community of property when the marital power of the husband is not excluded.
- ↑ Grotius is silent on this point. Voet (26. 1. 4), Groenewegen (ad Cod. 5. 34. 8), and van Leeuwen (Cens. For. 1. 1. 16. 19) agree that there is no absolute disqualification. See also Sande, Decis. Fris. 2. 9. 1.
- ↑ Cape, Act No. 22 of 1876, sec. 4; Transvaal, Ord. No. 14 of 1903, sec. 4; 0. F. S. Ord. No. 11 of 1904, sec. 4. Brit. Gui., Ord. No. 12 of 1906, sec. 8, contains a provision to the same effect. In Natal there is no such disqualification (see Law 2 of 1868, sec. 7). In Ceylon there is no statutory provision. Voet adds to the disqualifications mentioned in the text: (5) a person not subject to the jurisdiction cannot be tutor dative (26. 5. 3); (6) persons expressly prohibited by the will of either parent (26. 1. 4).
- ↑ Grotius (1. 7. 6) says that soldiers cannot be guardians; so also Voet (26. 1. 4). Van der Keessel (Th. 113) agrees with Van der Linden.
- ↑ Gr. 1. 7. 14; Voet, 27. 1. 12; V. d. K. Th. 124.
