right of the whole, nor the complete particular right of any one of
the parties, can be maintained by .means of the-remaining article ; and
therefore the divifion ‘is not fet afide in favour o f the legatee on account
of the priority of his claim; on the contrary, the remaining article
is divided among the parties, according to the nature of their re-
fpedtive claims.
Abequettof If a perfon bequeath to another “ a third o f Ms o/ùtbing,” of
•‘ tie third two thirds are afterwards deftroyed, and the remaining third
tide, part of exceed in value a third of the whole property of the telrator, the legâ-
térwards de- tee is in that cafe entitled to only one third of the veftments that re-
ftroyed holds m • L awyers, however, have obferved that this is only wherè the
with reipect J .
to a third o f veftments are of different kinds ; for otherwife they are confidered 111
the remain pa tn e Jj.ght as dirms ;— and fo likewife of all articles of weight,, or
meafurement of capacity, as it is poffible, ' in thofe alfo* to- maintain
complete the right of particular partners to-particular portions,—
whence it is that a divifion of fuch among partners*;may be compelled.
I f a perfon bequeath to another “ the third o f Ms. three flames f
and two of them afterwards die, the legatee is entitled only to a third
of the value of the remaining Have; and the fame rule alfo holds with
refpeft to different houfes. Some fay that this is according to Haneefa
, only ; and others, that it is the opinion of all our doctors. T h e compiler
of the Heddya remarks that it is approved, proceeding upon the
general rule before ftated, that “ in all articles which jdmit of the
“ rights of the partners being united in them,, it is practicable to unite
“ the right of the legatee.”
A legacy o f
money muft
be paid in full
with the property
in hand,
although all.
If a perfon whofe eftate confifts, partly of ready money, and partly
of debts due to him from others,, bequeath to another one thoufand
dirms, and that fum exceed not a third of the exijlent property, it is
paid to the legatee without any deduction. If, on the contrary, it
exceed
exceed a third of the ready property,' he is only to receive a third of the
amount in hand; and afterwards a third muff be paid him, of whatever
fums may occafionally be recovered by the heirs, until in this
manner the amount o f the legacy be completely difcharged. T h e
realbn of this is that the legatee is (as it were) a partner with the heirs;
and therefore, i f his claim in particular were difcharged with the ready
property (by its being applied to the payment o f the whole o f his legac
y ,) an injury would be occafioned to the right o f the heirs; as .ready
money is allowed to be preferable to money that is due.
If a perfon leave a third of his property “ Aj ' Z e y d and O m a r , ” and
Omar be at that time dead, the whole of the third is.given to Zeyd,
whether the teftator, at the time of making the will, have been acquainted
with the death of Omar or not ; for as a defundt is not capable
o f becoming a legatee, he therefore cannot prevent a living perfon from
being fo;-r—in the fame manner as where, for inftance, a perfon bequeaths
fomething “ to Z e y d and to a w a l l . ” According to one tradition
from Aboo Toofafii is faid, that if the teftator were not acquainted
with the death of Omar, Zeyd is then entitled only to one half of
the third ; for on fuch a fuppofition the will in favour o f Omar was
valid in the opinion o f the teftator ;■ which fufficiently indicates his will
and intention to have .been that Zeyd ffiould receive on ly - one half of
the third. But if, on the other hand, he Was acquainted with the
circumftance o i Omars death it is evident that he intended that Zeyd
Ihould receive the whole, as a will in favour o f a dead man is vain and
ufelefs.
If a perfon will that one third of his property ’■‘ he divided, as a legacy,
between Z e y d and O m a r , ” and Omar be at that time dead,
Zeyd is entitled to only one half o f the third; for the words ufed by
the teftator clearly denote his intention that each Ihould have an half;
■ but Omar being at that time dead, the will with rcfpedt to him is-
•void.
the reft o f the
eftate fhould
be expended
in debts.
A legacy left ■
to t*wo per-
fons, one o f
them being at
that time
dead, goes
entire to the
living legatee.
A legacy being
bequeathed
to
two perfons
indefinitely, **
i f one o f them
die, a -moiety
of it only goes
to the other.
R r r 2 I f