23 A legacy of selection, that is, when a testator directs the legatee to select one from among his slaves, or any other class of things, was held to be given subject to an implied condition that the legatee should make the choice in person; so that if he died before doing so the legacy did not pass to his heir. By our constitution, however, we have made an improvement in this matter, and allowed the legatee's heir to exercise the right of selection, although the legatee has not done so personally in his lifetime; which enactment, through our careful attention to the subject, contains the further provision, that if there are either several colegatees to whom a right of selection has been bequeathed, and who cannot agree in their choice, or several coheirs of a single legatee, who differ through some wishing to choose this thing and others that, the question shall be decided by fortune—the legacy not being extinguished, which many of the jurists in an ungenerous spirit wished to make the rule—; that is to say, that lots shall be drawn, and he on whom the lot falls shall have a priority of choice over the rest.
24 Three persons only can be legatees who have testamentary capacity, that is, who are legally capable of taking under a will.
25 Formerly it was not allowed to leave either legacies or fiduciary bequests to uncertain persons, and even soldiers, as the Emperor Hadrian decided by rescript, were unable to benefit uncertain persons in this way. An uncertain person was held to be one of whom the testator had no certain conception, as the legatee in the following form: 'Whoever bestows his daughter in marriage on my son, do thou, my heir, give him such or such land.' So too a legacy left to the first consuls designate after the writing of the will was held to be given to an uncertain person, and many others that might be instanced: and so it was held that freedom could not be bequeathed to an uncertain person, because it was settled that slaves ought to be enfranchised by name, and an uncertain person could not be appointed guardian. But a legacy given with a certain demonstration, that is, to an uncertain member of a certain class, was valid, for instance, the following: 'Whoever of all my kindred now alive shall first marry my daughter, do thou, my heir, give him such and such thing.' It was, however, provided by imperial constitutions that legacies or fiduciary bequests left to uncertain persons and paid by mistake could not be recovered back.
26 An afterborn stranger again could not take a legacy; an afterborn stranger being one who on his birth will not be a family heir to the testator; thus a grandson by an emancipated son was held to be an afterborn stranger to his grandfather.
27 These parts of the law, however, have not been left without due alteration, a constitution having been inserted in our Code by which we have in these respects amended the rules relating to legacies and fiduciary bequests no less than to inheritances, as will be made clear by a perusal of the enactment, which, however, still maintains the old rule that an uncertain person cannot be appointed guardian: for when a testator is appointing a guardian for his issue, he ought to be quite clear as to the person and character of the party he selects.
28 An afterborn stranger could and still can be instituted heir, unless conceived of a woman who cannot by law be a man's wife.
29 If a testator makes a mistake in any of the names of the legatee, the legacy is nevertheless valid provided there is no doubt as to the person he intended, and the same rule is very properly observed as to heirs as well as legatees; for names are used only to distinguish persons, and if the person can be ascertained in other ways a mistake in the name is immaterial.
30 Closely akin to this rule is another, namely, that an erroneous description of the thing bequeathed does not invalidate the bequest; for instance, if a testator says, 'I give and bequeath Stichus my born slave,' the legacy is good, if it quite clear who is meant by Stichus, even though it turn out that he was not born the testator's slave, but was purchased by him. Similarly, if he describe Stichus as 'the slave I bought from Seius,' whereas in fact he bought him from some one else, the legacy is good, if it is clear what slave he intended to give.
31 Still less is a legacy invalidated from a wrong motive being assigned by the testator for giving it: if, for instance, he says, 'I give and bequeath Stichus to Titius, because he looked after my affairs while I was away,' or 'because I was acquitted on a capital charge through his undertaking my defence,' the legacy is still good, although in point of fact Titius never did look after the testator's affairs, or never did, through his advocacy, procure his acquittal. But the law is different if the testator expresses his motive in the guise of a condition, as: 'I give and bequeath such and such land to Titius, if he has looked after my affairs.' 32 It is questioned whether a legacy to a slave of the heir is valid. It is clear that such a legacy is void if given unconditionally, even though the slave ceases to belong to the heir during the testator's lifetime: for a legacy which would be void if the testator died immediately after making his will ought not to become valid by the simple fact of the testator's living longer. Such a legacy, however, is good if given subject to a condition, the question then being, whether at the vesting of the legacy the slave has ceased to belong to the heir.
33 On the other hand, there is no doubt that even an absolute legacy to the master of a slave who is instituted heir is good: for, even supposing that the testator dies immediately after making the will, the right to the legacy does not necessarily belong to the person who is heir; for the inheritance and the legacy are separable, and a different person from the legatee may become heir through the slave; as happens if, before the slave accepts the inheritance at his master's bidding, he is conveyed to another person, or is manumitted and thus becomes heir himself; in both of which cases the legacy is valid. But if he remains in the same condition, and accepts at his master's bidding, the legacy is extinguished.