ertain 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 Clos