The appropriation
of a
fum, by be-
queft, to the
emancipation
o f a Have is
annulled by
the fubfe-
quentlofs or
failure o f any
part o f it
but not the
appropriation
o f a fum
to the performance
of a
pilgrimage.
If a perfon, on his deathbed, fet afideone hundred dir ms, and will
that “ after his death the faid fum be applied to the emancipation o f
“ a Have,” and one dirm of the number happen to be loft, in that
cafe Haneefa maintains that the will is annulled, and that the remaining
ninety-nine dirms cannot be applied to the purpofe o f emancipating
a Have. If, on the contrary, the perfon will that “ the faid fum be
“ appropriated to defray the expence of a pilgrimage to Mecca,'1' in
that cafe the lofs or deftruftion of one dirm does not invalidate the will,
but the remaining ninety-nine dirms are applied to the purpofe prefcrib-
ed by the teftator, by deputing a perfon from fuch a diftance as may
enable him to reach Mecca by means of the faid fum. (Ifalfo, in this
laft cafe, part of the fum have been loft or deftroyed, and there remain
a part after the return of the pilgrim, it muft be reftored to the heirs.)
The two difciples maintain that the will is valid in the former inftance
likewife, and the ninety-nine dirms applied to the emancipation of a
Have, in the fame manner as (in the other inftance) to the performance
of the pilgrimage. T h e argument o f Haneefa is that, in the
former inftance, the will directs the emancipation of a flave valued
at one hundred dirms; and therefore, if it were executed with ninety-
nine dirms, it would take effect in favour of a perfon different from
the intended legatee, which is not lawful. It is otherwife with a be-
queft concerning pilgrimage, as pilgrimage is purely a religious duty,
and religious duties appertain exclufively to G o d ; and as G o d therefore
is the legatee in this- inftance, a diminution of the fum does notinduce
an execution of the will in favonr of any ether then the legatee, fince
a pilgrimage for ninety-nine dirms is performed on behalf of G o d , as
much as a pilgrimage for one hundred dirms. Some have obferved
that this difference of opinion between Haneefa and the two difciples
is founded on the different fentiments they entertain with refpeft to
the emancipation of a flave; the two difciples holding it to be a religious
aft, in the fame manner as the performance of a pilgrimage;
and Haneefa confidering it as an aft in favour of the Have alone!
5 (The
(Thé compiler o f the Heddya remarks that this laft opinion is approved.)
a
If a perfon during his laft illnefs emancipate a flave valued at one
hundred dirms, and die, leaving two fons and one hundred dirms, and
the emancipated flave and his heirs give their confent to the emancipation,
the flave is not required to perform any emancipatory fervice
whatever, but is free without fo doing; for although the manumiffion
was equivalent to a bequeft in the proportion beyond a third of the
emancipator’s property, yet it is valid on the heirs aflenting to it.
If a perfon will that “ his heirs emancipate his flave at his de-
“ ceafe,” and the flave, after the death of the teftator, commit an offence,
and the heirs furrender him, as a compenfation, to the avenger
of offence, the will is void ; becaufe the' furrender of him in compenfation
for the offence is approved; for as the right of the teftator
muft yield to that of the avenger of offence, the right of the legatee
muft confequently yield to it likewife, fince a legatee obtains his right
m the legacy from the teftator ; and as, upon the flave being furren-
dered in compenfation for the offence, he pafles out of the property
of the teftator, the will is void of courfe. If, on the contrary, the
heirs prefer paying a redemptionary atonement, the will remains valid,
and does not become void ; (but in this cafe the redemptionary atonement
falls entirely upon their property, as they have themfelves undertaken
the payment of i t ;) and as the flave, by the payment of
the redemption, is purified from the offence, the cafe is therefore
the fame as if he had not offended at all, and the' will takes effeft o f
courfe.
A flave exceeding
a
third o f the
property,
emancipated
on a deathbed,
is exempted
from
emancipatory
labour by the
heirs aflentin
g to hi«
freedom.
A bequeft o f
emancipation,
in favour
o f a
flave, is annulled
by his
being made
over in compenfation
for
an offence
committed by
him.
l l l j
If a perfon bequeath to another “ a third of his property,” and Where the
leave, among his other effefts, a flave, and the legatee and heirs k^tefagree
agree that the teftator had emancipated the flave, but differ with re- concerninga
x 7 flave having
fpeft