Let us now pass on to another classification of persons. Persons not subject to power may still be subject either to guardians or to curators, or may be exempt from both forms of control. We will first examine what persons are subject to guardians and curators, and thus we shall know who are exempt from both kinds of control. And first of persons subject to guardianship or tutelage.

1 Guardianship, as defined by Servius, is authority and control over a free person, given and allowed by the civil law, in order to protect one too young to defend himself:

2 and guardians are those persons who possess this authority and control, their name being derived from their very functions; for they are called guardians as being protectors and defenders, just as those entrusted with the care of sacred buildings are called 'aeditui.'

3 The law allows a parent to appoint guardians in his will for those children in his power who have not attained the age of puberty, without distinction between sons and daughters; but a grandson or granddaughter can receive a testamentary guardian only provided that the death of the testator does not bring them under the power of their own father. Thus, if your son is in your power at the time of your death, your grandchildren by him cannot have a guardian given them by your will, although they are in your power, because your death leaves them in the power of their father.

4 And as in many other matters afterborn children are treated on the footing of children born before the execution of the will, so it is ruled that afterborn children, as well as children born before the will was made, may have guardians therein appointed to them, provided that if born in the testator's lifetime they would be family heirs and in his power.

5 If a testamentary guardian be given by a father to his emancipated son, he must be approved by the governor in all cases, though inquiry into the case is unnecessary.