latter o n ly , ftructs the Arranger in the title which he would ôtherwife have to the
Of onehalSÉ complete legacy. It is not fo where a legacy is left between one perfon
living and another dead, for here the whole goes to the living
legatee, fince as a dead perfon is incapable of fucceeding to a bequeft,
there is no obftrudtion in this inftance.
smd fo like- If a perfon make a will jointly in favour of his murderer and a
btqaei°tothe granger, in that cafe the murderer is not entitled to any thing, and
murderer o f the ft ranker receives only a moiety of the legacy* for the reafon afandtea
a ° r figned in the foregoing cafe* to wit* that the murderer (like an heir)
«ranger. p0fl'effes the capacity o f being a legatee, and therefore obftruas the
ftrangeV’ s title to the whole, as there ftated. It is otherwife where a
perfon, on his deathbed, makes a declaration of any fpecific thing Or
fum due by him to one o f his heirs and a Arranger jointly ; for there
the declaration is invalid as well with refpeft to the Arranger as the
heir. The reafon of -this diftinftioti is, that a will of bequeft is all
indication of endowment ; and as, by it, a joint concern iseftablifhed
between the two legatees, the bequeft is therefore valid with refpèft
to him, of the two, who is not under a legal incapacity, namely, the
ftrattge’r whereas a declaration or acknowledgment is an annunciation
of the right of the part ies in whofe favour it is made, referred to
a -paft time, under the defcription o f joint concern, à thing which
cannot be eftablifhed ; for the eftaMifomenf of it With rèfpea to the
ftranger only, independant of the defcription of joint-concern, is'contrary
to the tenor of the dying perfon’s declaration ; and the eftablifh-
rheut of it (on the other band) in the manner of joint concern, occa-
fions the eftablifhmeat ctf a declaration in favour of an heir, upon a
deathbed, which is unlawful.
A n y accident If a perfon bequeath three garments of different prices, leaving
uncertainty • the beft to Zeyd, the Hëjtft in value to Omar, and 'the worft to Bicker,
with refpcia anq Qfjjg pp thefe, garments be afterwards loft, without its being known
to the lega- - ƒ ° n 1 -1 I
tees annuls which of them it was, and the heirs of the teftator declare, to eacn
,hewiu- ' - 4 legatee
1
1
legatee in particular, that “ his fhare is loft,” the bequeft is null in
toto, as it is in this cafe uncertain who are the legatees, and fuch uncertainty
occafions nn annulment of the will, fince the Kdy.ee cannot
pafs a decree concerning a thing unknown. If, on the contrary, the
heirs make over the two remaining garments to the legatees, the
bequeft is not null, but ftill continues in force, and thofe two garments
are divided among them, by two thirds of the beft being given
to Zeyd, two thirds o f the worft to Bicker, and the remaining third of
each to Omar.
If Zeyd bequeath to Omar a fpecific apartment o f a houfe held in
partnerfhip between him and Bicker, it is requifite that a partition be
made of the houfe ; and then, if the apartment fo bequeathed fhould
fall within the fhare of Zeyd, it muft be given to Omar as his legacy,
according to the two Eiders-, whereas, according to Mohammed, he is
entitled only to one half o f it. If, on the other hand, the apartment fo
bequeathed fhould not fall within the fhare o f Zeyd, then, according
to the two Elders, a number of cubits equal to the fize of the bequeathed
apartment muft be given to Omar from the fhare of Zeyd, whereas*
according to Mohammed, he is entitled only to h a lf that number."
The argument of Mohammed is that in this cafe the teftator has bequeathed
partly his own property, and partly the property of another,
inafmuch as the houfe was fhared equally between him and Bicker in.
all its parts. T h e bequeft, therefore, takes effedl with refpeft to the
former, but remains fufpended with refpeft to the latter; and if,
■ upon the partition, (which is a fpecies of exchange) the apartment fall
within the fhare of Zeyd, ftill that part o f the bequeft which had remained
fufpenderd does not take effect, any more than .where a perfon
bequeaths to another feme article which does not belong to him, and
afterwards purchafes that article. Where, moreover, upon a partition:
of the houfe, the apartment in queftion falls to the fhare o f the
teftator, his bequeft takes effect with refped -to the actual legacy,
V ol. I^ j,!. S f f namely,
Bequeft o f an
apartment in
a partnerlhip
houfe.