favour o f another,
mull
pay the acknowledged
legatee bis
proportion of
l'uch bequeft.
Bequeft o f a
female Have
who (previous
to the
partition o f
the eftate)
produces a
child.
of his portion to Zeyd. This proceeds upon a favourable conftruftion.
Mohammed,, on the contrary, maintains that the declarer is to make
over an h a lf o f his portion to Zeyd-, (and fuch is what analogy would
fuggeft;) becaufe when this fon made the declaration that Zeyd was
entitled to a third, he then in fadt declared Zeyd to be entitled to as
much as himfelf, whence it is requifite that he make over a moiety of
his portion to him, in order that both may be placed on an equality.
Thereafon, however, for a more favourable conftrudtion in this particular
is, that the fon has.here made a declaration, in favour of Zeyd,
o f one third, affeding the whole eftate indefinitely ; and as the whole
eftate has gone in two portions, each falling to each fon refpectively,
it follows that the fon has made his declaration in favour of Zeyd with
refped only to a third o f his own portion.
I f a perfon bequeath a particular female Have to Zeyd, and after
his death the faid Have bring forth a child, the legatee is in that cafe
entitled to both the mother and child, provided, however, that their
added value do not exceed a third of the eftate, for then Zeyd is to receive
the female Have, as far as a third of the eftate, and if her value
be fhort of the third, the refidue muft be made up to him from the
value of the child. This is according to Haneefa. T h e two difciples,
on the contrary, maintain that in this cafe the legatee is to receive to
the amount of a third of the property from both the mother and Child,
in proportion to their refpedtive values. Thus if the value of the mother
be three hundred dirms, that o f the child the lame, and the other cttefis
amount to fix hundred dirms, the whole forms an eftate o f one thoufand
two hundred dirms, of which a third is four hundred. Now Haneefa
holds that in this cafe the female Have muft be made over to the legatee
in payment of three hundred dirms, and he alio receives one hundred deduced
from the value of the child ;— whereas the two difciples maintain
that he is entitled to a deduction of two thirds from the value of
each. T h e argument of the two difciples is, that the child is virtually
included in the bequeft, from its being (as it were) a dependant
8 011
on the original fubjeCt of it, and that therefore the bequeft muft be executed
proportionally from both, without preference or diftindtion.—
T h e argument of Haneefa is, that the mother is the original fubjeCt of
the bequeft, and the child only a dependant; and the dependant cannot
obftruft the original. If, moreover, the bequeft were executed
equally from both, it induces this confequence, that a part of the legacy
is fplit off from the original fubjed, which is. unlawful. All
that is here advanced proceeds on a fuppofition o f the birth of the child
happening prior to the partition, and’ the acceptance of the legatee j
for if it fhould take place afterwards, the child inconteftibly belongs to
him, as being the offspring of his property ; for his right in the flave
was fully and completely eftabllfhed by the partition-
S E C T I O N -
O f the Period o f making Wills-
I t is to be obferved, as a general, rule, that where a perfon per- e ratu;tous
fon performs- with his property, any gratuitous deed, of immediate o f im-
' • • A . i * i i \ * c i . mediate ope- operation, (that is, not reirridted to his death,) if he be in health at ration, i f exthe
time, fuch deed is" valid to the extent of all his property,— or* i f a'deathbed"
he be fiek * , it takes effedt to the extent of one third of his property; “ p effeS
• i r . • r r J ’ the extent o f
and where a perfon performs fuch deed, with his. property,, reftridted. one third o f
* Arab. Mareez.—This term (as has been already, obferved*) literally means ftck. In
the language of the law, however, it is always ufed to fignify a dying perfon,—that is,
“ Tick of a mortal illnefs | | and in that fenfe it is invariably to be underftood throughout
this book,.
to