470. W I L L S . B®ok LU,
unlefs b y the
confent o f the
heiss.
A bequeft to
an heir is not
v a lid unlefs
confirmed by
the other
he irs.
obferVed, 'however, that although a will, bequeathing more than a
thirds of the teftator’s property,: be not lawful, yet if the heirs,, being
arrived at the age of maturity, fhould give their confent to it, after
the death of the teftator, it then becomes valid; for the objection to
its validity is founded merely on a regard to their right, and therefore
does not operate any longer, after they themfelves agree to forego
fuch right. Their confent, indeed, during the lifetime of the teftator,
is. not regarded; for as this is an aflent previous', to the eftabliftiment'
of their right, they are therefore at liberty to annul it upon thé death
of the teftator. It is otherwife where the-confent is given after that
event; for as this is an aftent fubfequent to the eftabliftiment of their
right, they are not afterwards at liberty to annul it.
■ W here a. perfon makes a will in favour.of part o f his heirs, the
lime'rule holds as in the cafe of bequeathing more titan a third to a
ftranger;— in other words, the deed is not valid, unlefs the other
heirs give their confent to the difpofition after the death of the teftator
; and their confent previous to his death will have: no effect. It is
to be obferved that, in every mftance where a will is rendered valid
by the confent of the heirs, the legatee derives his property from the
tejiator, not from the heirs. This is the opinion of our d’öCtors. Sha-
fe 'i maintains that he derives his property from the heirs. T h é opinion
of our doCtors is approved ; for the will of the teftator is the oe-
eafion of the property, the confent of the heirs being only the removal
of a bar ; ' and as the law has regard to the caufe, not to the removal
■ of a bar, the property is therefore derived from the teftator, not from
the h e i r s (w h e n c e it is that feizin is; not requifitc * ; for if the property
were derived from the heirs,, feizin would be requifite ; becaufe
the transfer of property from a living proprietor, without receiving
any thing in return, is in. effect a g ift, to the eftablilhment of which
* M e a n i n g , “ t h e t e f t a t o r ’ s t a k i n g p o f l e f t i o n o f t h e b e q u e f l is - n o t r e q u i f i t e t o t h e e f t a -
^ f r l i & m e n t . o f h i s r i g h t i n i t . ”
the feizin of the donee is a neceflary condition ;)— in the fame manner
as where a pawner fells the pawn, in which cafe the ratification of
the deed of fale refts entirely on the pawnee, and if he give his confent,
the fale is valid, and the purchafer derives his property in the
article fold from the pawner, not from the pawnee.
I f a perfon make a bequeft in favour of another from whom he has
received a mortal wound, it is not valid ; whether the murderer be
one of his heirs, or a ftranger, or whether he may have wounded
him wilfully or by mifadventure,' provided he be the aCtual perpetrator
of the deed ; beCaufe it is recorded in the traditions, that
“ ;there is no legacy fo r a murderer and alfo, becaufe, as the perfon
who gave the wound has haftened the death of the teftator, he
is, by way of punilhment, excluded from the benefit of the will, in
the fame manner as a perfon under fimilar circumftances is excluded
from inheritance.— So likewife, where a man, having made a bequeft
in favour of a particular perfon, is afterwards killed by that perfon,
fuch bequeft is invalid.-— If, however, in thefe cafes', the heirs fhould
give their confent, the bequeft then becomes valid, according to Ha-
necfa and Mohammed.—^Aboo-Toofef'xi of a contrary opinion ; becaufe
the offence of the murderer, which is the caufe of the invalidity of
the will, ftill exifts.-— T h e arguments of Haneefa and Mohammed
upon this point are twofold.-—F i r s t , the defeCt in the validity of the
will, with refpeB to the murderer, is on account of the right of the
heirs ; becaufe the advantage of fuch defect refaits to them, as in the
cafe of exclufion from inheritance.^— S e c o n d l y , the defeCt in the validity
of the bequeft, as made in favour of the murderer, is owing to
the heirs withholding their confent, in the fame manner as in the cafe
of a will in favour of part of the heirs ; and confequenlly, as the confent
of the remaining heirs, in that inftance, eftablifhes the validity of
the will, it follows that the confent o f the heirs at large mu ft have the
fame effect in the cafe in queftion.
A bequeft to
a perfon from
whom the
teftator had
received a
mortal wound
is not valid;
and i f a le g a tee
fla y his
teftator, the
bequeft in his
fa vou risvo id .
If