acy
is extinguished.

34 A legacy given before an heir was appointed was formerly void,
because a will derives its operation from the appointment of an heir,
and accordingly such appointment is deemed the beginning and foundation
of the whole testament, and for the same reason a slave could not be
enfranchised before an heir was appointed. Yet even the old lawyers
themselves disapproved of sacrificing the real intentions of the
testator by too strictly following the order of the writing: and we
accordingly have deemed these rules unreasonable, and amended them by
our constitution, which permits a legacy, and much more freedom, which
is always more favoured, to be given before the appointment of an heir,
or in the middle of the appointments, if there are several.

35 Again, a legacy to take effect after the death of the heir or
legatee, as in the form: 'After my heir's death I give and bequeath,'
was formerly void, as also was one to take effect on the day preceding
the death of the heir or legatee. This too, however, we have corrected,
by making such legacies as valid as they would be were they fiduciary
bequests, lest in this point the latter should be found to have some
superiority over the former.

36 Formerly too the gift, revocation, and transference of legacies by
way of penalty was void. A penal legacy is one given in order to coerce
the heir into doing or not doing something; for instance, the following:
'If my heir gives his daughter in marriage to Titius,' or, conversely,
'if he does not give her in marriage to Titius, let him pay ten aurei
to Seius'; or again, 'if my heir parts with my slave Stichus,' or,
conversely, 'if he does not part with him, let him pay ten aurei to
Titius.' And so strictly was this rule observed, that it is declared
in a large number of imperial constitutions that even the Emperor will
accept no legacy by which a penalty is imposed on some other person: and
such legacies were void even when given by a soldier's will, in which
as a rule so much trouble was taken to carry out exactly the testator's
wishes. Moreover, Sabinus was of opinion that a penal appointment of a
coheir was void, as exemplified in the following: 'Be Titius my heir: if
Titius gives his daughter in marriage to Seius, be Seius my heir also';
the ground of the invalidity being that it made no difference in what
way Titius was constrained, whether by a legacy being left away from
him, or by some one being appointed co