2.1.273 to 2.1.277

(231) Our preceptors do not think that a guardian can be appointed under such circumstances, but Labeo and Proculus hold that a guardian can be appointed, because by such an appointment nothing is taken from the estate. (232) A bequest made after the death of an heir is void, that is to say, if it is made as follows: "After my heir dies, I do give and bequeath," or "Let my heir give"; the following provision, however, is legal: "When my heir dies"; because it is not made after the death of the heir, but will become operative at the last instant of his life. Again, a bequest cannot be made as follows: "On the day before my heir dies," as this is not considered to be founded on any good reason. (233) We understand that these rules also apply to the enfranchisement of slaves. (234) Whether a guardian can be appointed after the death of an heir may perhaps give rise to the same doubt which arose with reference to his appointment before the institution of the heir. (235) Legacies bequeathed by way of penalty are void. A legacy is considered to have been bequeathed by way of penalty, where it is left for the purpose of compelling the heir either to perform some act, or to refrain from doing so; as, for instance, where the bequest is made: "If my heir gives his daughter in marriage to Titius let him pay ten thousand sesterces to Seius"; or as follows: "If you do not give your daughter in marriage to Titius, you shall pay him ten thousand sesterces"; and again, for example, where the testator orders that if his heir did not build him a monument within the term of two years he should pay ten thousand sesterces to Titius, this bequest being by way of penalty; and finally, in accordance with this definition, we can suggest many similar cases of this kind.