2.1.282 to 2.1.286

(240) A certain person must also be appointed a guardian. (241) A legacy bequeathed to a posthumous stranger is void. A posthumous stranger is one, who, after his birth, will not be included among the proper heirs of the testator; and therefore a grandson born to an emancipated son is a posthumous stranger to his grandfather, and likewise the unborn child of a woman who is not considered a wife at Civil Law, is a posthumous stranger to his father. (242) A posthumous stranger cannot even be appointed an heir, for he is an uncertain person. (243) What we stated above properly has reference to legacies, although it was not unreasonably held by certain authorities that the appointment of an heir by way of penalty could not be made; as it makes no difference whether the heir is ordered to pay the legacy in case he should either perform or not perform some act, or whether a co-heir is appointed with him; for he is just as much compelled by the addition of a co-heir as by the payment of a legacy either to do, or not to do something contrary to his intention. (244) It is a question whether we can legally bequeath a legacy to one who is in the power of him whom we have appointed the heir. Servius thinks that the legacy can be legally bequeathed, but that it will lapse if the legatee continues to be under control when the time arrives for the legacy to vest; and therefore, whether the bequest is absolute, and the party ceases to be under the control of the heir during the lifetime of the testator, or whether it is left under a condition, and this takes place before the condition is complied with; the legacy will be due.