purely a fnccejfton, and is not annulled by the rejection of the heir—
Gift, moreover, differs from bequeft, it not being (like bequeft) admitted
in favour of a foetus ; for gift is purely an endowment; and no
perfon can endow a foetus with any thing. T h e ground, on the other
hand, on which the fecond cafe proceeds is, that the exiftence o f the
foetus is underftood at the period of making the w ill; and a? the legacy
of things not yet in being (fuch as the fruit a tree may hereafter yield)
is valid, it follows that a legacy of a thing aflually exifting is valid
a fortiori.
A female I f a perfon bequeath a female (lave, and except the offspring of
bequeathedC her womb, both the bequeft and the exception are valid. T h e be-
with the ex- a ;g becaufe the words “ female Have” do not include the
progeny.^hef offspring. As, however, in the bequeft of a female Have, her off-
fpring is included dependantly, where the bequeft is abfolute,. it follows
that where a Have is bequeathed with an exception of her off-
fpring, fuch bequeft is valid. T h e exception alfo is valid; becaufe as
it is permitted to bequeath a foetus in the womb, it is alfo allowable
to except it from a legacy; for it is a rule that whatever is in itfelf
capable of being the fubjefl of a deed may alfo be excepted from that
deed; and vice verfa. Befides, the acceptance of the legatee is fuf-
pended until the death of the teftator ; and the annulment of the declaration,
previous to the acceptance, is valid, as in a cafe of fa le for
inftance.
A bequeft is Upon the teftator either exprefsly refcinding his bequeft, (as if
refcinded by were to fay, “ I retrafl what I had bequeathed,” ) or performing
declaration of any afl which argues his having refcinded it, retraflation is eftablifhed.
or'byanyaft It is eftablifhed, in the former inftance, evidently; and fo like wife in
on his part latter ; for as afts are demon ftrative of the inclination as much as
implying his ' _ . . T • 4. u
retraflation, exprefs words, they are confequently equivalent thereto.— It is to De
obferved, that i f the teftator perform, upon the article he had bequeathed,
any aft which, when performed on the property of andther,
other, is the caufe of terminating the right of the proprietor, (fuch
as the flaughter of a goat, or the fleaing, roafting, or boiling of it,
the fabrication of a veflel from a piece of copper, the grinding wheat
into flour, or the fabrication of a fw,ord from iron,)— fuch aft is a re-
traftation of the bequeft. If, alfo, he perform upon it any aft creating
an addition to the legacy, and this addition be fo connefted,
that the legacy cannot be feparately delivered, (as where a perfon
bequeaths the flour of wheat, and afterwards mixes it with oil,_or a
piece of ground, and afterwards erefts a building on it,— or undreft
cotton, and afterwards drefles it ,—or a piece of cloth, and afterwards
lines, or covers a gown with it,)— fuch ad is a retraflation of the bequeft:.
It is otherwife with refpefl to plaiftering the wall of a bequeathed
houfe, or undermining the foundation o f i t ; for thefe afts
do not indicate a retraflation of the bequeft, as they affeft the legacy
m its dependancics only.
E v e r y a d or deed which occafions an extinflion of the property or which ex-
of the teftator is a retraflation from his bequeft,— fas where for in- tinguiflies.his
itance, a teitator leUs the article he had bequeathed, and afterwards the legacy*
purchafes it, or gives it to feme perfon, and afterwards retrafls the
gift*)— and confequently, the legacy does not go to the legatee after
his [the teftator’s] deceafe ;— becaufe a will can hold good only with
refpefl to the teftator’s property ; and therefore, upon his property
beiijg extinguithed, the bequeft becomes null of courfe. (It is to be
obferved that the wafhing of a bequeathed garment is not a retrafla-
tion from the bequeft ; on the contrary, it is rather a confirmation
of it, as it is acuftom to wafh garments before they are given to any
perfon.)
If a teftator deny his bequeft, and the legatee produce witneffes The teftator’»
to prove it, there is in that cafe a difference of opinion amon» our his
dodlors ; for according to Mohammed this is not a retraflation;— arecrafotion
whereas Aboo Toofaf maintains that it ft fo, becaufe retractation fig- °flti
nifies