J24 W I L L S .
or to the
axvlad o f a
particular
race.
A bequeft to
the heirs o f a
particular
perfon is executed
agreeably
to the
laws o f inheritance.
Cafe o f a bequeft
to % the
** Manvlas”
o f the tefta-
tor.
Book LIL
plural term Binnee extending to females as well as males. Haneefa,
however, afterwards retrafted this opinion, and maintained the males
of the race only to be included, not the females ; becaufe the term
Binnee applies to men literally, but to women only metaphorically,
and a word muft be taken in its literal not its figurative acceptation.
It is otherwife where “ the race o f fuch a perfon” is the proper name
of any particular tribe; for in that cafe the bequeft includes the women
alfo, as the term Binnee, in fuch inftance, comprehends the females
of the tribe along with the males,— in the fame manner as the
general expreflion Benni-Adim [the Ions of Adamf\—whence the bequeft
includes the freedmen, the fworn confederates [Halefit,] the
flaves, and the Mawaldt confederates of the tribe named.
If a perfon make a bequeft jsf to the children [awlad"] of the race
“ of fuch an one,”— the males and females have an equal right in
fuch bequeft, as the term awldd comprehends the whole.
If a perfon make a bequeft “ to the heirs of fuch an one,” the
legacy is in that cafe divided among the heirs of the perfon named, in
the manner of an inheritance, a male getting as much as two females;
becaufe there is reafon to imagine that the object of the teftator, in
ufing the word heirs, was, that the fame diftitnftion might be ob~
ferved in the partition o f the legacies as obtains in the cafe o f inheritance.
If a perfon make a bequeft “ to his Mawlas * ,” and he have fome
Mchvlas who had emancipated him, and otherswhom he had emancipated,
the bequeft is void ; becaufe the term Mdwla partakes of two different
* Mawla is a term applying either to the patron or the client) (fee W i l l a j ) and ex-
preffes the relation between the emancipated and his emancipator, (See V o l. I . p. 425»)
1
Chap. IV. W I L L S . 525
meanings, an emancipator, and a freedman, and it cannot be difcovered
which of thefe the teftator intended. Neither can the intention be con-
ftrued to comprehend both; becaufe a word bearing a double meaning
cannot be ufed in more than one of its fonfes at a time; and as it is unknown
which fenfe the teftator meant it in, the legatee is therefore
uncertain; and any uncertainty concerning the legatee annuls the
bequeft. (In feveral of the books of Shafe'i it is recorded that the
bequeft is conftrued in favour of all the Mawlas, both the emancipators
and the emancipated, as the term ufed applies to both.) It is to
be obferved that where the term Mawla is mentioned, in bequeft, it
comprehends every one whom the teftator may have actually emancipated,
whether in health or in ficknefs; but not his Modabhirs or
Am-Walids, as their emancipation does not take place until after his
death, and his bequeft is in favour of fuch only as are free previous to
that event. Aboo Yoofaf maintains that a Modabbir or Am-Walid is
alfo included, becaufe, although thefe be not free previous to the
teftator’ s deceafe, ftill as a caufe of freedom has taken place, and
is eftablifhed in them, they may be laid to have been emancipated.—
In this bequeft is alfo included any Have of the teftator to whom he
may have laid, “ you are free i f I beat you not before my death ;”
(provided he did not afterwards beat him;) becaufe the Have is in this
cafe free before the teftator’s deceafe, and from the time that his
ftrength and power of beating failed him. I f the teftator have Mawlas
whom he had emancipated, and alfo the children of thofe Mawlas,
and likewife Mawlas by Mawaldt *, his freedmen Mawlas and their
children are included in the bequeft, but not his Mawlas by Mawaldt.
It is recorded from Aboo Yoofqf, that thofe laft are likewifo included,
and that all thofe three defcriptions equally participate in the bequeft,
as the term Mawla comprehends the whole. Mohammed argues that
Mdwla is a term which partakes o f two different meanings; but a
word of double meaning cannot be ufed in more than one fenfe at a