W I L L If Book L il.
and comprehends
all
competent
deicriptions
of perlons.
Rules in bequeft
s to
*• thejs’bcr”
of the teftator
;
and to “ his
“ K h a tn
the circumftance of adjunftion, is the moft perfe$ ted indifpiitable.
It is to be obferved that the learned in the law are of opini'oti that
every perfon may be included, under this defcription. of neighbour,
whether the proprietor of a houfe or n.ot, or, whether a man or i
woman, a Mujfulman or zZimmee, the term neighbour being equally
applicable to all thefe. Haneefa alfo holds that an abfolute Have, pof-
fefl'ed of a houle in the neighbourhood, is entitled to the benefit of the
will.— T h e two difciples hold a different opinion ; beeaufe, in fuch
cafe, the benefit of the will would ultimately revert to the mafter of
the Have, who is not fuppofed to be a neighbour. The argument of
Haneefa is, that the term neighbour applies indifcriminately to all.
If a perfon make a bequeft in favour o f “ his As'bar all the relations
of-his wife within the prohibited degrees (fuch as her father,
brother, and fo forth) are therein included ; and likewife all the relations
of his' father’s wife [his ftep-mother] and of his fon’s wife [his
daughter-in-law] within the prohibited degrees, as thefe all ftand'in
the relation of As'bar to the teftator. This explanation of As'hdr has
been followed by Mohammed and Aboo Obeydah. It is to be obferved
that all the kindred of' the wife within the prohibited degrees are included
in the bequeft, notwithftanding fhe were, at the time of the
death of the teftator, in her edit from a reverfible divorce". But if the
divorce was-Irreverfible, her relations are hob to be included, as the
exiftence of that degree of relation entitled As'hdr depends on the actual
exiftence of the marriage at the time of the teftator’ s death; and
by an irreverlible divorce marriage is utterly annulled.
If a man make a bequeft in favour of “ his Khatn," it is a bequeft
to the hufbands of his female relations within the prohibited degrees;
* As'har is the plural o f Sehry (pronounced, in Arabia, Dehr,) which is1 a general term
for ail relations by marriage.
C hap. IV. W I L L
ISM
I f 519
and in it are, 'likewife included all the relations of thefe hufbands
within the prohibited degrees, thele alfo falling under the defcription
of Khatn.— (Some commentators remark, that this explanation is
agreeable to the ancient cuftom ; but that in the prefent times Khatn
comprehends only the hufbands, as above.)— It is alfo to be obferved
that in this refpcT freemen and flaves, and the near and the diftant
relations are all upon a footing, beeaufe the term Khatn comprehends
the whole of thefe.
If a perfon make-a will, in favour of his “ relations” [Akraba* ,] an<J to hn
it is executed in favour of .the neareft of kin within the prohibited de- Akrah“ >
grees, and failing of them, in favour of the next in proximity, and fo
oil with refpedt to the reft within the prohibited degrees, in regular
fuccefiion. The will, in this, cafe, includes two or more ; but the
father, mother, or children of the teftator are not comprehended in it.
This is the opinion of Haneefa. According to the two difciples, the
will includes only fuch as are defeended from the moft diftant progenitor
of the teftator, profefiing the Mujfulman faith.— (Concerning
the meaning of “ the moft diftant progenitor profejfmg the fa ith ,"
there is a, difference o f opinion; fome maintaining that this applies to
the remoteft anccllor who adually embraced the faith, and others
alleging that it expends to the remoteft anceftor who may have known
of the exiftence of the faith, although he himfelf may not have acceded
to it ; as is exemplifiedin the cafe of Aboo cTdlib, who, although
he underftood the Mujfulman faith, never embraced it.) The argument
of the two difciples ns, that the term relations being in General
applied to all of the fame bloods, the will therefore extends to all fuch
as fall under this defcription, to whatever degree removed. The arguments
of Haneefa are that legacies ;are a lpccies of inheritance ; and
as, in inheritance, the arrangement here deferibed is obferved with
* Àkrabà is the plural o f Kareeb, and lignifies.(co lle a iv e ly ) kindred.