the extent of ten cubits, in a houfe of one hundred cubits, which he
poflèffed in common with another, to be the property of Omar, fome
fay that in this cafe alfo a difference of opinion obtains between the two
Elders and Mohammed-, whilft others maintain that there is no difference
of doctrine in this point, Mohammed alfo holding (in common with the
two Elders') that in cafe the faid apartment fall to the fhare of Zeyd,
it goes complete to the acknowledgee [the perfon in whofe favour the
acknowledgment is made,] orotherwife, that the fhare of the acknow-1
ledger is divided into eleven parts, of which two are given to the acknowledgee
and nine to the acknowledger. Thereafon of thislaft adjuft-.
ment is that the acknowledger here makes his acknowledgment to this
purpofe; <c the houfe which, exclufive of that apartment, meafures
‘ ‘ ninety cubits, is the joint property o f me and my partner,— of which
* ‘ forty-five appertain tom e ;” and the acknowledgee claims ten cubits
from the fifty which fall to the fhare of the acknowledger. T h e fifty
cubits therefore, which conflitute a moiety of the houfe, are divided
between the acknowledger and acknowledgee in this way, that the
acknowledgee takes in the proportion of ten cubits, and the acknowledger
in the proportion of forty-five, and accordingly that moiety of the
houfe is difpofed of in eleven fhares. It is otherwife with refpedt to a
bequeft, as before ftated; for there this mode of divifion cannot obtain,
as the teftator, in making his bequeft, cannot be fuppofed to have faid
“ this houfe, except fuch an apartment, is in common between me
“ and my partner,” fince if he were to fpeak thus his bequeft would be
null, as the bequeft of another’s property is not approved. Mohammed
further remarks that the difference between a bequeft and an acknowledgment
is this, that an acknowledgment affedting the property
of another is approved, (infomuch that i f a perfon were to declare
that “ fuch a thing, held by Zeyd, is the property o f Amroo” and
this perfon fhould at any time thereafter become proprietor of that
thing, he is directed to deliver it up to Amroo,) whereas a bequeft of
the property of another is utterly null and void, infomuch that i f a
perfon bequeath any thing belonging to another, and afterwards become
come proprietor o f that thing, and die, ftill the bequeft is of no
effedt *.
I f a perfon bequeath a thoufand dirms that belong to another, the
execution of the bequeft refts entirely on the confent of the proprietor,
and it is optional in him to confirm it, or not, as he pleafes. I f he,
therefore, after the death o f the teftator, give his confent, the bequeft:
is valid, and the money paid to the legatee accordingly. This confent,
however, is purely voluntary and gratuitous ; whence if, after having
fignified it, the perfon refufe to pay the money, it is lawful.
I f two fons make a partition of their father’s eftate, and one of An heir,after
them then declare that “ his father had bequeathed a third of his pro- theeftate ac
“ perty .to Zeyd," he [the declarer] mull in that cafe make over a third knowledg>ng
i u a bequeft in
* T h e re being here a confiderable deviation from the original text, and alfo fome con-
fufion in the fubjedt, (owin g to the quantity o f extraneous matter introduced by the Perftan
commentators,) the tranflator thinks it his duty to give the whole paffage literally, from J
to as ftated. in the Arabic copy,— “ W h e re the apartment falls to the other partner,
u not the teftator, the houfe meafuring. one hundred cubits, and the apartment ten cubits,
“ the teftator’ s fhare is divided into ten lots, nine for the heirs, and one for the legatee.__
“ T h is is according to Mohammed; for he fuppofes the legatee to multiply a moiety o f the
“ apartment b y five, (the number o f cubits it meafures,) and the heirs the h a lf o f the re-
j mainder o f the houfe by forty-five ; and thus the whole will compofe five lots [ o f ten
K cubits,] which makes ten [lots o f five cu b its.]— B u t according to the tw o [ EldersJ it is
11 divided into eleven lo ts ; becaufe they fuppofe the legatee to.multiply by ten, and the
m heirs by for ty - fiv e ; and thus the whole compofes eleven lots,, two for the legatee, and
“ nine for the heirs.— I f declaration [acknowledgment'] be put in the place o f bequeft, it is
<c faid there is a difference o f opinion :— but it is alfo faid that there is no difference on the
u part o f Mohammed,— the only difference, according to him, being that an acknowledg-
“ ment affedtingthe p roperty o f another is valid,— infomuch that he who makes an acknow-
<c ledgment concerning property poffeffed b y another in favour o f a different perfon, and
“ afterwards obtains poffeflion o f the fame, muft be diredted to g iv e it up to the a ckn ow-
j ledgee;— whereas a bequeft affedting the property o f another is n u ll; infomuch that if
“ the teftator fhould b y any means afterwards become poffefled o f that property, and then
“ die, ftill his bequeft does not pafs,” [ is o f no effedt J
The validity
of a bequeft
o f money belonging
to another
refts
upon the proprietor’s
confent.
Of