and To like-
wife by an
infan t,
B e q u e s t by an infant is not valid. Shafei maintains that it is valid,
provided it be made to a difereet and advifable purpofe ; becaufe Omar
confirmed the will of a Taffai, (that is, a boy who has nearly reached
the age of maturity ;) and alfo, becaufe in the execution of it a degree
of advantage refults to the infant, inafmuch as he acquires the merit
of the deed,— whereas in the annulment o f it he is deprived of all advantage.
T h e arguments of our dodtors, in fupport of their opinion
upon this point, are twofold.— F i r s t , a will is a voluntary adl, concerning
which an infant has not a capacity of forming a proper judgment.
S e c o n d l y , the declaration of an infant is not of a binding
nature; but if the validity o f a bequeft by fuch were admitted, that
effedt would follow of courfe.— With regard to the tradition of Omar,
the term Taffai, there ufed, muft be underftood to mean a perfon juft
arrived at the age of maturity, or, “ the w ill o f the Taffai" relates
merely to the celebration of his obfequies, which is lawful in the opinion
of our dodtors. Befides, the annulment o f the will is advantageous
to the infant, fince in allowing his property to pafs to the heirs
the rights, of natural affedtion are maintained, as before mentioned.
With refpedt to the aflertion of Shafei, that “ in the execution of
“ the will an advantage refults to the infant,” it may be replied that
the point to be attended to, in cafes of advantage or lofs, is, the immediate
tendency of any adt or deed, and not what may eventually
refult from i t ; in other words, i f the deed itfelf, in its immediate
tendency, produce advantage, the execution of it on account of the
infant is preferable; but in the cafe here confidered the deed, (that is,
the bequeft) in its immediate tendency, leads to a lofs of property, although
eventually the infant have an advantage, the bequeft having
been made with a view to obtain merit in the eye of G o d ; and fince
the bequeft of the infant, in its immediate tendency, oecafions a lofs,
it is not valid ;—in the lame manner as. holds in cafe of a divorce ; in
other words, i f an infant divorce his wife, or his guardian do fo on
his behalf, it is not binding, notwithftanding a divorce may on many
oecafions be attended with advantage,—-as where an infant, having a
wife
wife who is poor, willies to divorce her, and marry her lifter, who is rich
and handfome,— In lhort, bequeft by an infant is invalid, according
to our dodtors ;—and in the fame manner, i f an infant Ihould make a
will, and die after he had attained to maturity, the will is not valid, as
having been made at a time when he was unqualified for fuch an adt;
and fo likewife, i f an infant Ihould fay, “ It is my will, whenever
“ I reach the age o f maturity, that a third of my eftate be confidered
“ as a legacy in favour of a particular perfon,” the will is not valid ;
becaufe an infant, being unqualified, is not competentto make a will that
lhall be deemed valid immediately, or that can be rendered fo by being
fufpended to a future period ; in the fame manner as he is incapable of
divorce or emancipation. It is otherwife with refpedt to a Have or a-
Mokatib ; for they poffefs a complete competency, obftrudted merely
by the right of their mafter ; and therefore all their adts (fuch as
divorce, bequeft, or fo forth) are perfedbly valid if referred to a period
when that bar no longer exifts ; as where a Have (for inftance) fays
“ I declare m y wife to be divorced whenever I am f r e e ''
B e q u e s t by a Mokdtib is not valid, notwithftanding he leave ef-
fedts fufficient to difeharge his covenanted ranfom ; becaufe the property
of a Mokatib is not a fit fubjedt o f gratuitous adts. Some
affert that this is according to Haneefa ; but that the two- difciples
hold a contrary opinion.
A wiL t-in favour of a foetus in the womb, and a will bequeathing
a foetus, are both valid, provided the birth happen in lefts than fix
months from the date of the will. T h e ground on which the firft
cafe proceeds is, that a legacy is, in a manner, a fueceflion to property
; and as a foetus is capable to fucceed in the cafe of inheritance,
it is fo likewife in the cafe of a legacy, that being analogous to inheritance.
If, however, the legatee Ihould rejedt the legacy, it is
rejedted accordingly, as a bequeft bears alfo the fenfe o f an endowment
which may be declined.. It is different with inheritance, as that is
or a Mciiîiii»,.
A bequeft o f
(or in favour
of) afeetusin
the womb invalid.