480 W I L L S . Book LII.
nifies the teftator negativing his bequeft at the prefent time; and as
the denial is a negative applying both to the prefent and to the paß, it
therefore amounts to a retractation a fortiori. T h e argument of Mohammed
is, that the denial of a bequeft fignifies the putting a negative
upon it with refpeä to the paß, of which its being negatived with
refpeft to the prefent is a confequence; and upon the bequeft being
proved, by witnefles, to exift at prefent, the denial is of no effedt.
Another argument is, that as a retracftation implies the former ex-
iftence of a will, and' the prefent annihilation of it, and denial (on
the other hand) difavows both the former and the prefent exiftence
of it, there is- therefore an evident difference between a retractation
and a denial; whence the latter ought not to be confidered in the
lio-ht of the former;— and accordingly, denial not being a retractation,
if a hufband deny his marriage, and the wife bring witnefles to prove
it, ftill a feparation does not take place between them.
nor his declaring
it tin*
la w f u l or
ufuri<ws>
or defiring
the execution
of it to be
deferred*
I f a teftator declare the will he has made in favour of a particular
perfon to be unlawful or ufurious, this is not a retractation, becaufe
the fpecification of it under the defcription of illegality or ufury is a
plain proof that the fubjeft of the defcription (namely, the will) does
actually exift. T h e cafe would be different if he fhould declare the
will to be»«//; for that is evidently a retractation; becaufe, as a
thing which is null is non-exiftent, the defcription of null evinces
that the thing fo defcribed no longer exifts. It is otherwife with the
defcription of unlawful; for that indicates a continuance of the exiftence,
as illegality cannot apply to a nonentity.
If a teftator fhould defire that the execution of his will be fuf-
pended for fome time after his death, this is not a retractation. If,
on the contrary, he fay “ I depart from my will,” he is then held to
have retracted it.
If
.I if. . .
C h a p . I . W I L L S .
If a perfon fay, “ I will that a particular flave, which I formerly
“ bequeathed to Zeyd, be giyen as a legacy to Amroo," in that cafe
“ a retractation from the firft will is eftablifhed, as the tenor of his
fpeech evidently fliews that it was not his intention they fhould both
partake o f the legacy. It i§ otherwife where a perfon firft leaves a
particular article to one man, and then leaves the fame thing to another
;— as if he fhould fay, “ I will that this thing be given'to Zeyd,”
and afterwards make a bequeft o f the fame thing in favour of Amroo;—
for in that cafe a retractation of the firft will does not take place; the
fubjecfj; being capable of divifion, and the feparafe fentences bearing
that Gpnftrution.
If a perfon fay, “ the flave which I formerly left to Zeyd I now
bequeath to Amroo f and at that time Amroo be not alive, the firft
will, in favour of Zeyd, holds good; for that was annulled only
on account of the legacy having been completely devifed to Amroo ;
and upon this no longer remaining in force,, becaufe of Amroo's death,
the firft will reverts.-— If, on the contrary, Amroo be alive at the time
of the bequeft in his favour, and afterwards die before the teftator,
the legacy [the flave] in that cafe pafles to the heirs, both bequefts
being* void,— the firft, becaufe of the retractation,— and the laft,
becaufe ,of the death of the legatee previous to that of the teftator.
481
A bequeft to
one perfon is
annulled by a
fubfequent
bequeft of the
fame article
to another,
unlefs that
other be not
then alive.
V ol. IV. C H A P .