to the extent
of a third of
the teftator’s
property;
but not to any
“ prietor of this article on the morrow,") is unlawful, fuppofing,
even, that the donor’s property in the article ftill continues to exift at
that time, it follows that the fufpenfion of the deed to a period when
the property is null and void, (as at the deceafeof the party,) is unlawful,
a fortiori. T h e realons, however, for a more favourable
conftruction, in this particular, are twofold.— F irst-, there is an iu-
difpenfible neceffity that men thou Id have the power of making be-
quefts; for m a n , from the delufion of his hopes, is improvident,
and deficient in practice; but when ficknefs invades him he becomes
alarmed, and afraid of death. ' A t that period, therefore, he Hands
in need of compenfating for his deficiencies by means of his property;
— and this in fuch a manner, _ that if he fhould die of that illnefs, his
objefts (namely, compenfation for his.deficiencies, and merit in a future
Hate) may be obtained,.— or, op the other hand, i f he fhould recover,
that he may apply the laid property to his.wants ;— and as-thefe
objects are attainable by giving a legal validity to wills, they are therefore
ordained to be lawful*.— Secondly, wills are declared to be
lawful in the Koran and the traditions and all our doctors, moreover,
have concurred in this opinion..
If a perfon make a will in favour of a. ftranger,. to the amount of
a third of his property, it is valid, although the heirs of the teftator
fhould not be confenting thereto ; for it is fo recorded in the traditions.
A bequest to any amount exceeding the third of the teftator’s
* In this place are ftated an objeliim and reply, which the tranflator has omitted in the
text, in order to avoid an interruption o f the fubjedt.— V iz .
“ O bjection.— I f the right o f p roperty in the proprietor become extindl at his deceafe,
w how can his a£t o f endowment be then valid ?
“ R e p l y .— His right o f p roperty is accounted to endure at that time from neceffity,—
a in the fame manner as holds with refpeft to executing the funeral rites, or difcharging
J* the debts o f the dead.”
property
property is not valid. In proof of this the following tradition is
quoted, as deliverèd by Ahee Vekafs. “ In the year of the conqueft
“ of Mecca, being taken fo extremely ill that my life was defpaired
of, the prophet of G od came to pay me a vifit of confolation. I
“ told him, that, by the bleffing of G o d , having a great eftate, but
“ no heirs; except one daughter, I wifhed to know P i f I might difpofe
“ o f it a l l by w i l l . ’ He replied, ‘ No !’ and when I feverally in-
“ terrogated him ‘ f I might leave t w o t h i r d s ,, or o n e h a l f
“ he alfo replied: in the negative but when I afked i f I might leave
“ A t h i r d , he anfwered, Tes, you may leave A. t h i r d o f your pro-
“ perty by. w ill: but a third part, to be difpofed o f by will, is a great
“ portion j and it is better you fhould leave your heirs rich, than in a
“ fa te o f poverty, which might oblige them to beg o f others."— Befides,
the right of the teftator’s heirs is connected with his property; for
when he is in his laft illnefs he has no further ufe for i t ; and as this is
the caufe of the title to it becoming null and void in him, and vefting
in the heirs, their right therefore, at that period, becomes connected
with it accordingly. This right, however, is not recognized by the
l a w , with refpedt to a ftranger, to thé extent of one third of the
eftate, • in order that the teftator may be enabled, by bequeathing a,
third of his property out of his family, to atone for his paft: deficiencies,
as before mentioned.. With refpect to the heirs themfelves, on the
contrary, this, connexion of right is recognized to the extent of the
whole of the teftator’s property; (whence it is that if a perfon fhould
difpofe of-a third of his property to a part of the heirs, it would not be
valid ;) for i f no regard were paid to the connexion of their right with
the whole o f the property, with refpect to themfelves, fo as to legalize
the bequeathing a third of it to a part of them, in that cafe the object
of a will (namely, a compenfation for deficiencies) might not be at--
tended to, as it is poffiblê that the teftator, inftead of including the
whole of the heirs, might leave the third only to a felefl part of them;
and this would be an injury to the others, and would confequently
induce a breach of the ties of kindred, which is unlawful, It is to be
obferved,
further extent,