W I L L S. B o o k LI I.
A bequeft to
a p a rt o f the
heirs is not
valid.
If a man make'S'bequeft in favour of a part of his heirs, it is not
valid; becaufe of a traditional faying-of the prophet, “ G o d has al-
“ lotted to POery heir his particular r i g h t and alfo, becaufe a will in
favour of a part of the heirs is an injury to the reft ; and therefore, if
it were deemed legal, would induce a breach of the ties of kindred.—
Befides, ifis faid, in the traditions, “ a bequeft to particular heirs is
“ unjuft."— It is to be obfcrral that in judging whether the legatee
be an heir, or otherwife, regard is paid to the time of the teftator’s
death, not to the period of making the w ill; becaufe the efficacy of the
will is eftabliffied after the death of the teftator.— (Th e gift of a dying
perfon* is in this refpeft of the fame nature with a legacy, both
being the fame in effeft, and is therefore executed to the amount of a
third of the property.)— If, on the contrary, a dying perfon make an
acknowledgment in favour of a part of his heirs, regard is paid to the
time of fuch acknowledgment; becaufe the acknowledgment of a dying
perfon is an immediate and complete aft of his own, and has not
any reference to a future period ;—and fuch being the cafe, it follows
that it is not valid in favour of any who were aftually heirs at the
time of making it,— and that it is valid with refpeft to fuch as were
not heirs at that time ; although they ftiould become fo afterwards;
-—as where, for inftance, a perfon makes an acknowledgment in favour
of his child, who is a Have, and the child recovers his freedom
before the death of the father ; in which cafe the acknowledgment fo
.made is valid, notwithftanding the child, by the recovery of his freedom,
became one of his father’s heirs ;— for as, at the time of the
acknowledgment, he was not an heir f , any acknowledgment made
in his favour was virtually made in favour of his mafter, who was a
ftranger;—and the validity of the acknowledgment being once eftabliffied,
it does not afterwards admit of being annulled from the cir-
* Arab. M a reez. Literally, fick ,i— but always (in the language of the law ) meaning,
a Jick o f a mortal illn efs,”
f A flave cannot poflefs any right o f inheritance.
cumftance
Chap. I. W I L L S .
cumftance of the child’s becoming an heir.— It is to be obferved,
however, that although a bequeft in favour of a part of the heirs be
not valid, yet it is rendered fo by their confent, as was already mentioned.—
If, moreover, a part ftiould give their confent, and part
withhold it, the bequeft then becomes valid in proportion to the
amount o f the ffiares of thofe who confent, and invalid in proportion
to the amount of the ffiares of the others.
T h e b e q u e ft o f a Mujjiilman in fa v o u r o f a Zimmee, o r o f a Zimmee
in fa v o u r o f a Muftulman, is v a l id : th e fo rm e r , b e c a u fe G o d h a s fa id ,
in th e K o r a n , “ Y e a r e n o t p r o h i b i t e d ,- o b e l i e v e r s , f r o m
“ A C T S O F BENEVOLEN CE TOWARDS THOSE WHO SUBJECT TH EM -
“ SELVES TO YOU, AND R E FR A IN FROM B A T T L E S AND CO N T EN -
“ T lO N s ; ” — and th e la t t e r , b e c a u fe Zimmees, in v i r tu e o f th e i r c om p a f t
w i t h th e Muffulmans, a r e c o n fid e r e d in th e fam e l i g h t w i t h t h em in
a l l tem p o ra l c o n c e rn s ; an d a s , ort th is p r in c ip le , a n in t e r c o u r fe o f
g o o d o f f ic e s tow a r d s e a c h o th e r is h e ld la w f u l d u r in g l i fe , t h e y are
th e r e fo r e in th e lam e m a n n e r p e rm i t t e d t o e x t e n d b e y o n d th e g r a v e .—
It is re la ted in th e Jama Sagheer th a t a w i l l in fa v o u r o f a n h o f t i le in fid
e l is n o t v a l id , as God h a s p r o h ib ite d , in th e Kor an , th e e x e r c i fe
o f b e n e v o le n c e tow a r d s th em .
T he acceptance or rejeftion of a bequeft is not eftabliffied until
after the death of the teftator; for as the bequeft does not take
effeft before that event, thofe cannot be previoufly regarded.— Hence
the acceptance or rejeftion during the life o f the teftator has no effeft,
in the fame manner as an acceptance declared before the exiftence of
a contraft.— If, therefore, a legatee accept a bequeft after the death of
the teftator, it is valid, notwithftanding he may have rejefted it during
his lifetime.
I t is p r e fe ra b le and m o f t a d v ifa b le n o t to le a v e le g a c ie s , i f th e h e ir s
be p o o r , and th e i r p a r t icu la r p o r t io n s n o t fu c h a s to e n r ic h th em ;
V ol. IV . JP p p b e c a u fe
*7f
Bequeds are
valid between
Muffulmans
and Zim m stst
The accept*
ance or rejection
of them
is not determined
until
after the
death of the
teftator.
It is laudable
to avoid
making them