miffion is in effedt a bequeft. If, therefore, the perfon in queftion leave
no other property than thefe two flaves, and the heirs, refufe their con-
fen t to the emancipation, it takes effedt in the proportion of one third ;
that is to fay, each of the flaves is rendered' free in one third of his value,
and mud earn the freedom of the remaining two thirds by emancipatory
labour.
and bequein If a perfon bequeath a particular number of (firms, without fpeci-
of fpeeific fyIng the relative proportion they bear to his eftate,— fuch as a half, a
money. third, a fourth, or the like,— it is valid, but is executed only to the extent
of a third of his whole property, unlefs the heirs be willing to confirm
the whole. Thus i f a perfon, having only ninety dirms, (hould
bequeath thirty to Zeyd, and fixty to Omar, and the heirs refufe their
aflent to it, in that cafe the fum of the two legacies is reduced to thirty
dirms, of whichZeyd receives ten, and Omar twenty.]
Cafe of a If a perfon fir ft bequeath the whole of his eftate to one man, and
queathingthe then a third of it to another*, and the heirs refufe their aflent, in that
•whole of his cafe one thircj 0f his eftate is divided into four fhares, of which three are
eftate to one, 1 1 , 1 i c l
and then a given to the' legatee of the whole, and one to the legatee or the
anofher. “ “ third. This is according to the two difciples. Haneefa alleges, that
the third of the eftate muft be divided equally between the two legatees;
for in his opinion, when a legacy is extended beyond a
third, the excefs is of no weight in the determination., The
argument of the two difciples is, that the teftator has two objects in
view ; for fir ji, he defigns that each of the legatees fhall receive the
whole of his legacy ; and fecondly, that a fuperiority of the one over
the other fhall be maintained. Now the attainment of the fir ji of thefe
objedts is impoflible, becaufe of the right of the heirs, and is, indeed,
in itfelf impradicable ; but as there is no bar to the full accomplifh-
* T h is fuppofes the teftator, firft, to fay “ I bequeath the whole o f my property to Zeyd,'
(for inftance,) and again, at fome future t im e ,tc I bequeath a th ird o f my property t oAmrood
ment
ment of the fiecond objedt, the fuperiority of the one over the other is
preferved, in the fame manner as in the cafes of bequeft by Mohabcit,
or emancipation, or, o f legacies of a fpeeific number of dirms. T h e
argument of Haneefa is, that a will is null and void in whatever degree
it may exceed a third of the eftate, where the heirs refufe their aflent;
and cannot on any fort of pretext be executed in that amount, as
being repugnant to the ordinance of the l a w in this particular. Since,
therefore, the will is rendered null in the excefs above a third, one
objedt of the teftator (namely, to eftablifh a fuperiority) is alfo rendered
null, as being comprehended in i t ; in the fame manner as a
Mohabcit is rendered null when interwoven in a contradt of fale
which is afterwards invalidated; as where, for inftance, a perfon fells,
by Mohabcit, a flave valued at thirty dirms for twenty, and the fale
afterwards becomes void in confequence of the lofs of the fubjedt o f it
previous to the delivery,— in which cafe the Mohabcit alfo becomes
void. It is otherwife in the cafes, of bequeft by Mohabcit or emancipation,
or of legacies of a fpeeific number of dirms ; for there the validity
does not reft on the confent of the heirs ; it being eventually
poflible that the bequefts may become valid notwithftanding the heirs
fhould refufe to ratify them, by the teftator, (for inftance,) after
making the bequeft, increafing his property to a degree that might render
the amount of the bequeft no more than equal to, or lefs than, one
third of the whole. Since, therefore, in thefe cafes, the bequeft is not in
itfelf null, but rather ftands within the poffibility of being valid, a regard
muft confequently be paid, in fuch inftances, to the fuperiority o f one of
the parties. It is otherwife in the cafe here confidered; for it is in this inftance
impoflible that the will fhould be valid, as has been already fhewn.
It is alfo otherwife where a perfon bequeaths a particular flave, valued
at one thoufand dirms, to Zeyd, and another, valued at two thoufand
dirms, to Bicker, and has himfelf no other property than thefe flaves;
for although, in this cafe, there be a poffibility that the teftator may
fo increafe his property as to render the amount of the two flaves
equal to, or lefs than, a third of the whole, yet Bicker would receive
a proportion