Where recovery
inter-^
venes between
a fick-
bed divorce
and the death
o f the huf-
band, the
wife is cut off
from inheritance
;
and fo alfo
where her
a p o fia c y intervenes
;
but not where
jher in c e ft in tervenes.
but if the fufpenfion take place in health, and the condition in ficknefs■
and the aft be of a nature avoidable by the woman, fhe does not inherit,
for evident reafons. And where the aft is of an unavoidable nature,
the rule is the fame, with Mohammed and Z ijfer, (that is, fhe
does not inherit,) becaufe, on this oecafion, no aft appears on the
part of the hufband, after the connexion of the wife's right with his
property.— With the two Elders, on the contrary, fhe does inherit,
becaufe the hufband in this cafe obliges her to the commiffion of that
aft, and for that reafon thé aft becomes his own, fhe being only as
his inftrument; as in a cafe of compulfion, a compellee being one who
is ftraitened between two things, in which predicament the wife here
ftands, fince, if fhe perform the aft o f condition, fhe fuftains the injury
.of divorce, and i f file refrain fhe is in danger of perifhing either1 here
or hereafter.
I f a man pronounce upon his wife three divorces in ficknefs,' and
afterwards recover his health, but happen to die before the expiration
o f her E dit, fhe does not inherit.— Zijfer fays that fhe inherits, becaufe
the hufband in this cafe appears to have intended evafion ;; but to
this our doftors reply that the ficknefs in which divorce was pronounced
having been removed by the intermediate recovery of
health, the laft ficknefs, which follows, 'is the fame as health,
whence it appears that her right i|;‘:not connefted with hhshpro-.
perty, and therefore the hufband is not an evader in divorcing
her.
I f a fick perfon pronounce three divorces upon his wife, and fhe
afterwards apoftatize from the faith, and again return to it, and the
hufband then die before the expiration of her Edit, fhe does not inherit
of him: if, however, fhe were not to apoftatize, but fhould
admit the fon of her hufband to carnal connexion, fhe inherits.—
T h e difference between thofe two cafes is, that by apoftacy her capacity
pacity of inheritance is deftroyed; whereas, by admitting the fon of
her hufband to the commiffion o f the carnal aft it is not fo, for although
this renders her prohibited to her hufband, yet it does not
forbid her competency of inheritance, fince prohibition and inheritance
may be united in the fame perfon, (as, for inftance, in a mother
or a J jle r j) wherefore fhe inherits in this cafe: but it would be
different, if fhe were to admit the fon of her hufband to carnal connexion
during theexiftenoe of marriage, becaufe feparation is the con-
fequence, whence it appears that fhe confents to the deftruftion of
the matrimonial connexion, which is the oecafion o f her inheritance,
whereas, if fhe admit the fon of her hufband to carnal connexion,
after the latter haying pronounced three divorces upon her, prohibition
is not eftablifhed by that aft as it had been already eftablifhed
by divorce.
If a man, being in health, Hander his wife, that is, accufe her
of adultery, and afterwards make afteveration refpefting the fame on
his (deathbed, fhe inherits of him.— Mohammed fays that file does not
inherit: but if the flander be alfo declared upon his- deathbed, fhe
inherits, according to all our doftors,— The reafon of this is that the
flander amounts to the fufpenfion of divorce upon a thing unavoidable
by the woman, as it conftrains her to oppofition*, that fhe may remove
from herfelf the fcandal of the imputation.
If a man make an A jla t , or. vow o f abftinence, from his wife,
I during health, and fhe become divorced, in confequence of it when
I he is upon his deathbed, fhe does not inherit of him ; becaufe Aila
I is a vow of abftinence, from carnal connexion with her for the fpace
* T h a t is to fay, forces her to require her hufband to verify his accufation by a L a S n ,
I o f f ile m n a jf e v e r a t io n , before the magiftrate, which, i f he does fo, occafions divorce.__F o r
■ a full explanation o f this fee Chap. X . treating ©f L o a n ,
t See Chap. V I I .
Divorce ©c-
cafioned by.
the flander of
a dying hufband
does not
cut off his
wife from her
inheritance;
and fo, alfo,
o f a deathbed
divorce
occafioned by
an A ila %