namely, an half of the apartment; whereas if, on the contrary, it
fall to the lot of Bicker, Amroo (the legatee) is to receive from the
{hare 0f Zeyd, a number of yards equivalent to half the apartment;
becaufe, upon the adtual legacy failing the bequeft muft be executed
by means of the confideration received in exchange for i t ; in the fame
manner as where a perfon bequeaths a have who is afterwards killed 5
in which cafe the legacy muft be executed from the compenfation received
for his blood: (contrary to where the (lave is fold-, for in this
cafe the bequeft has no connexion with the price received, but is completely
annulled by the fale ; whereas a bequeft is not annulled by a
partition, as that is alfo a fpecies offeparatim of property.)— T h e argument
of the two Elders is, that the teftator has certainly meant to
bequeath an article in which his property may be firmly and folidly
eftabliflied by means of partition; for his apparent object is to bequeath
an article which in every refpedt may be produ&ive o f u fe; and
that can be accomplifhed only by partition, as the ufe o f a thing of
which the property is ftiared in common with another is defective.—
Where, therefore, the apartment bequeathed, upon a partition being
made, falls to the (hare of Zeyd, and his property in it is firmly efta-
blilhed in toto, his bequeft of it takes complete e-ffedh With refpeift
to what is urged by Mohammed, that “ partition is a fort o f exchange f
it may be replied that the quality of exchange, in partition, is merely
fecondary, the original defignof partition being, that each may enjoy
the complete ufe of his own (hare, (whence it is that the parties
may be compelled to a partition of i t ;) according to which original
defwn the apartment may be faid to have been in the pofleffion of
Zeyd from the beginning. Where, on the other hand, it falls to
the (hare of Bicker, in that cafe the bequeft o f Zeyd takes efieft
from the (hare allotted to him, to the quantity of cubits of the whole
apartment; becaufe that quantity is the confideration for the apartment,
as has been already dated;— or, becaufe the bequeft muft be
thus conftrued, that the teftator, by the apartment, merely meant
a fum df meafurement equivalent thereto, in order that his defign
may
may be anfwered as far as the nature of the cafe admits * ; - o r elfe, becaufe
the teftator may have meant that the apartment (hould go to
Omar, provided it fell to his (hare upon a partition, or otherwife a
fum of meafurement equivalent to i t ;— this cafe being analogous to
that of a man fufpending the freedom of a child born of his female (lave,
and the divorce of his wife, upon the circumftance of his female (lave
bearing the child, (by faying, “ upon my female (lave being deliverer
ed of her firft-born child, fuch child is free and my wife divorced;” )
which is conftrued to mean any child, to produce the divorce, and a
living child to produce the emancipation.— £ It is to be obferved that
where the apartment does not fall to the (hare of Zeyd, if the extent
of the whole houfe be one hundred cubits, and that of the apartment
ten, Mohammed in that cafe is of opinion that the (hare of Zeyd is to he
divided into ten parts, of which nine muft be given to the heirs, and
one to Omar-,— whereas the two Elders hold that the (hare of Zeyd is
to be divided into five parts, of which one muft be given to Omar,
and four to the teftator’s heirs. (With refpeft to what is mentioned
in the Heddya, that {according to the two Elders] “ the (hare o f the
“ teftator is divided into eleven parts, of which two are given to Omar
“ and nine to the heirs,” it is a miftake, for this mode of divifion
obtains only in cafes of declaration or acknowledgment.) It is here proper
to remark that if an acknowledgment be made under the fame cir-
cumftances as are here dated, as if Zeyd (hould declare an apartment of
* A n objection and reply are here ftated, which the tranflator prefers inferting in a
note in order to avoid an interruption o f the context.
a O b j e c t io n .— I f fuch be the teftator’ s meaning, why is the particular apartment g iven
“ to Omar when it falls to the fhare o f Zeyd?”
“ R e p l y -_T h e apartment in queftion is made the legacy, where it falls to the fhare
“ o f Zeyd, for this re%fon, that in thus fettling the matter a regard is paid to the two ch ief
“ diftinguifhing,circumftances o f the cafe, namely, the quantity or fum [ o f the thing b e -
“ queathed,] and the inveftiture [ o f the legatee] w ith the a a u a l a p a r tm e n t a n d as,
“ where the apartment falls to the lot o f Bicker, it is impoflible to pay attention to both
“ circumftances, it accordingly in that cafe fuflices to pay attention to the firft.
S f f * the