ted, by the
teftator, to a
participation
with two
other legatees.
An acknowledgment
o f
debt, upon a
deathbed, is
efficient to
die extent o f
a third o f the
eftate.
by faying “ I have made thee Bicker a fharer with Zeyd and Omar,"
Bicker is in that cafe entitled to a third of each of their portions, in order
that he may be put on an equality, as the words of the teftator
evidently imply that intention, for the term ufed by him \_Shirkat\
literally means equality, which it is here poflible to preferve, and there
is no impracticability in the execution of the bequeft. It is otherwife,
where the portions of the legatees are unequal, as if the legacy of Zeyd
were four hundred dirms and that of Omar two hundred, and Bicker
were declared by the.teftator to be a Iharer with them ; for in that cafe
the eftabliihment of an equality is impracticable, and therefore Bicker
is entitled to receive a moiety of each of their ihares, that they may be
brought as nearly on an equality as poflible;
I f a perfon, on his death bed,- fay to his heirs, “ I am indebted to
“ Zeyd, and you muft credit what he fays,” in that cafe the claim of
Zeyd, to any amount not exceeding a third of the eftate, muft be admitted,
although the heirs fhould falfify it. This proceeds on a favourable
conftruCtion. Analogy would fuggeft that the declaration of
Zeydis not to be credited; for although an acknowledgment concerning
a thing undefined be approved, ftill its effeCt depends upon the dfcer-
tainment of i t ; and as that cannot be had, becaufe of the death of the
acknowledger, it would follow that the declaration of Zeyd is of no
weight. T h e reafon, however, for a more favourable conftrudiqn,
in this particular, is, that the objeCt of the acknowledger^ is evidently
to give Zeyd a preference over his heirs'; and it bein g poflible to execute
his defign in the way of a bequeft, and men being (moreover)
defirous of difeharging themfelves of obligations where they may know
of the debt itfelf, but are uncertain as to the amount, (a|#having
forgotten it,) the acknowledgment is therefore confidered equivalent
to a bequeft o f which the amount is left to the determination of
the legatee,— whence the matter is regarded in the fame light as if
the acknowledger had faid to his heirs, “ if Zeyd come and claim any
“ thing from you on my behalf, pay him the fame, to whatever
“ amount,”
“ amount,”-—which declaration would be recognized and complied
with, to the amount of one third o f the eftate ; and the acknowledgment
being thus equivalent to a bequeft, the declaration of Zeyd muft:
be credited to the amount o f one third of the acknowledger's eftate,
and no more. If, therefore, befides the acknowledgment in queftion,
the dying perfon had made various bequefts in favour of others, one
third of his eftate muft be fet apart for the legatees, and two thirds
for the heirs, when both parties muft be required “ to verify the de-
“ claration of Zeyd to fuch extent as they may think proper.” Now,
if both parties acknowledge that there is fomething owing to Zeyd, it
is evident that there refts a debt upon the eftate affecting the ihares of
each refpedively; and accordingly, a dedudtion is made from the legatees,
to the amount of one third o f what they acknowledge to be
owing to Zeyd, and from the heirs, to the amount of two thirds o f
what they have fo acknowledged, in order, that the acknowledgment
of each party may be carried intp execution in proportion to his right
in the whole eftate. I f Zeyd fhould claim ftill more than what falls
to him in virtue of this acknowledgment of the parties, each party
[the heirs and legatees] muft be reflectively required to make oath, to
the beft- o f their knowledge, or, in other words, to this effed, that
“ they do not know o f any more being due to Zeyd;”— for they cannot
be required to fwear pofitively, < as their oath regards a matter between
the claimant and the acknowledger merely, and in which they are not
principals.
If a perfon bequeath any article jointly to one of his heirs and a
ftranger, in this cafe the bequeft in favour of the heir is not admitted,
and a moiety only of the legacy is given to the ftranger ; becaufe, as
an heir pofiefles the capacity o f being a legatee *, he therefore ob-
* T h e incapacity o f an heir to fucceed to a legacy does not arife from any natural or original
defe£t in him, but is occafioned folely by the ordinance o f the i a w in this particular,
which fufpends it upon the content o f h is co-heirs.
A'Joint bequeft
to an
heir and a
ftranger is
executed in
favour of the
ftruds