a proportion according to the third, not according to the amount of
the legacy, (viz. two thoufand dirms;) becaufe here the right of
the legatees is connedted with the fubftance of the (laves, on this
o-round, that if the (lave (hould be deftroyed, the will would be rendered
The bequeft
of <c a fon’s
“ portion of
** inneri-
tance*’ is
void, but not
the bequeft of
an equivalent
to it.
void, notwithftanding the teftator might have acquired other
property. Hence the apprehenfion before dated is of no weight in
this inftance, as the right of the legatee is here con needed with the
very article with which the right o f the heirs has a connexion. In
the cafe, on the contrary, o f a legacy of a fpecific number of dirms,
if the property of the teftator be deftroyed, and he afterwards acquire
more, the legacy would be valid, and executed by means of the newly
acquired property; whence it is plain that the right of the legatee, in
the cafe of a leo-acy of a fpecific number of dirms, is not connedted
with the fubftance, and confequently is not annulled on account of its
deftrudtion.
If a perfon bequeath to another tc his fon s portion o f inheritance* ,
fuch bequeft is n ull; whereas, if he bequeath “ an e q u i v a l e n t to
“ his foil's portion,” fuch bequeft is valid.; for the firft is a bequeft of
what is the property of another, whereas the fecond is merely a bequeft
of fomething fimilar; and the femblanee of a thing is different
from the thing itfelf, notwithftanding its rate be determined thereby.
Zijfcr is of opinion that a bequeft of the former nature is likewife valid
; becaufe at the time of making it the portion belonged evidently to
the teftator. In reply to this, however, it is to be obferved, that the
legacy does not take place until after the death of the teftator, when
the property does not belong to him, and hence his bequeft of his
fon’ s portion is a bequeft of property not his own.
* In this, and feveral fubfequent examples, the effea depends entirely upon the terms
in which the bequeft is conceived, and which muft therefore be particularly attended to.—
T h u s , in the prefent inftance, the teftator is fuppofed to fey, “ / bequeath to such AN ONE
(1 my forts portion op inheritance j ” and fo o f the reft.
5
If
If a perfon bequeath “ a portion o f his efa te," the legatee is in
that cafe entitled to the fmalleft portion allotted to any of the heirs,—
provided, however, that fuch portion be not lefs than a fixth, for
then a complete fixth muft be given to him; and if it (hould exceed a
fixth, in that cafealfo a fixth is given to him ; for he is in no wife to
get more than a fixth. A cafe in which one of the inheritable portions
is lefs than a fixth is where, for inftance, a perfon bequeaths to
another “ a portion o f his efa te,” and leaves heirs, at his death, a (on
and a wife ;— in which cafe, although the (hare of the wife be only
an eighth, yet the legatee receives a fixth, and the remainder is then
divided between the wife and fon [the heirs] according to the ordinances
of the l aw . A cafe, on the contrary, in which all the inheritable
portions exceed a fixth, is where, for inftance, a perfon
makes, a bequeft in the terms here dated, and dies, leaving heirs a
full brother and wife ; in which cafe, although the fmalleft portion
be a fourth, yet the legatee is only entitled to a fixth ; and that being
paid to him, the remainder is then divided between the brother and
wife, agreeably to the ordinances of the l a w . This is according to
JJaneefa. Aboo Yoofaf and Mohammed are of opinion that the legatee
is entitled to the lowed (hare, whatever be its amount, provided it do
not exceed a third ; but if it exceed a third, an exadt third muft be
given him, and not more, unlefs the heirs be confenting thereto.
The argument on which they ground this opinion is, that the word
Sehm [portion,] both in its literal and received fenfe, means a portion
allotted to an heir ; and as the fmalleft (hare is a matter of certainty,
it is therefore adopted as the ftandard ; except where the fmalleft
portion of inheritance exceeds a third, in which cafe the bequeft is
executed in the proportion of a third, as a legacy exceeding a third is
not valid, unlefs confirmed by the heirs. T h e argument of Haneefa
is, that Sehm, according to the interpretation of the l a w , means a
fixth ; a legacy of a Sehm having been left in the time of the prophet,
who ordained that a fixth of the property of the teftator (hould be
given to the legatee. In its literal fenfe, moreover, it bears the fame
A bequeft of
tf a portion *
of the ell ate
is executed to
the extent of
the fmalleft
portion inheritable
from it*
meaning,