2.1.278 to 2.1.281

(236) Freedom cannot be granted by way of penal bequest, although a question has arisen on this point. (237) We cannot, however, raise any dispute with reference to the appointment of a guardian, because by such an appointment an heir cannot be compelled either to perform some act, or to refrain from performing it; and therefore, if a guardian is appointed by way of penalty, the appointment will appear rather to have been made under a condition, than by way of penalty. (238) A legacy left to an uncertain person is void. An uncertain person is considered to be one of whom the testator has only an indistinct idea in his mind; as for example, where a bequest is made in the following terms: "Let my heir pay ten thousand sesterces to the first person who comes to my funeral." The same rule of law applies if he makes a bequest in general terms to all, as: "Whoever comes to my funeral"; or where the bequest is left as follows: "Let my heir pay ten thousand sesterces to whoever gives his daughter in marriage to my son." It also applies where the bequest is in the following terms: "Whoever shall be the first consuls nominated after the execution of my will," for all these bequests are deemed to have been made to uncertain persons; and, finally, many other instances of this kind might be adduced. The bequest of a legacy is legal where the designation of the class to which the person belongs is described with certainty, but the individual to whom it is left is uncertain; as, for instance: "Let my heir pay ten thousand sesterces to that one of my relatives now living who comes first to my funeral." (239) A testamentary grant of freedom, however, cannot be made to an uncertain person, because the Lex Fufia Caninia directs that slaves be enfranchised by name.