5*8 W I L L S . B o o k LII.
nor are the
heirs (in the
latter in-
iHnce) allowed
to fell
their fhare.
The bequeft
becomes void
on the death
o f the legatee.
A bequeft of
the produce of
an article does
not entitle the
legatee to the
perfonal ufe
of,the article;
ever, if the parties agree to enjoy the houfe by turns, it is lawful, as
the right refts entirely with them:—but divilion is the mod equitable
mode.— It is not in this cafe lawful for the heirs to fell the two thirds
o f the houfe which are allotted to them. This is according to the
Zdhir Rawdyet. It is recorded from Aboo Toofaf that fuch fale is
lawful; becaufe thefe (hares are purely their own property. T h e
ground on which the Zdhir Rawdyet proceeds is, that a right of re-
fidence may eventually be eftablifhed to the legatee in the whole houfe,
by fo much other property of the teftator being afterwards difcovered
as may caufe the houfe to come within a third of his property. Be-
fides, the legatee has a controlling power over the heirs with refpedt to
their portions, fo far as to reft:rain them from executing any deed
which may injure or affedl his fhare. If the legatee fhould die before
the expiration of the limited term of ufufruft, the article bequeathed
in ufufrudt immediately reverts to the heirs of the teftator; for the bequeft
was made with a view that the legatee might derive a benefit
from the teftator’ s property ; but if the article were to devolve to the
legatee’s heirs, it induces the confequence of their being entitled to
the ufe of the teftator’ s property without his confent, which is contrary
to law. I f the legatee die during the teftator’s lifetime, the bequeft
is void ; becaufe the acceptance of it is fufpended upon the death
of the teftator, as has been already explained.
I f a perfon bequeath the produce * of hjs houfe or of his flave to
Zeyd, in that cafe feme are of opinion that it is lawful for Zeyd to re-
fide in the faid houfe himfelf, or to ufe the flave for his own fervice,
becaufe an equivalent for the ufe is in fa£t the fame as the ufe itfelf, fo
far as relates to the accomplifhment of the teftator's objeft. The
more approved opinion, however, is, that it is not lawful; for a bequeft
of produce is a bequeft of money, as it is that which conftitutes pro*
B y the term “ produce” [A rab . Haftl\ as here iifed, is to be underftood the earnings
or hire o f a flave, or the rent o f a houfe, & c .
duce ;
duce ; whereas refidence or fervice is an enjoyment of the ufe ; and
the effect of thefe is different with refpedt to the heirs; for if any juft
debt fhould afterwards appear againft the teftator, it might be repaid by
means of a reftitution of the rent by the legatee, which could not be
done in cafe of his having had the atftual ufe.
I t is not lawful for the ufufru&uary legatee of a flave or a houfe nor does a
to let them out to hire. Shafe'i maintains that he is-at full liberty fo
to do, becaufe, in confequence of the bequeft, he becomes (as ,it bim to let it
were) proprietor of the article ; . and, as fuch, he is entitled to tranf- ° lre'
fer it either for a return or otherwife, ufufruft (according to him)
being equivalent to aftual property. It is otherwife with a loan, that
being (according to his tenets) Amply a licence [to the ufe of a thing,]
notan inveftiture*. T h e arguments of our doctors upon this point
are twofold.— F i r s t , a bequeft is an endowment with property, without
a return, referred to the teftator’s deceafe; and hence. the leOeatee
is not empowered to make a transfer of the legacy even without
a retqrn, becaufe of the analogy it bears to a loan; for a loan, according
to our doctors, is an inveftiture with the ufe of a thing granted
in the lifetime of the lender; and the borrower is not permitted
to hire out the article lent, (hire being an inveftiture for a return) fo
here likewife.— A proof of this is that an inveftiture for a return is
ftrong and binding, whereas inveftiture without a return is weak and
not binding; and a perfon who is not empowered with refpedt to the
•weakejl of the two cannot be empowered with refpedt to the JlrongeJl.
Bequeft, moreover, as being a gratuitous deed, is weak and not binding.—
Now in gratuitous deeds the voluntary agent is at liberty to re-
tracft, not the 6ther party :— but as, in the cafe of a bequeft, the voluntary
agent is the teftator, and it is impoflible for him to retradt after
his deceafe, retradtation is therefore not fuppofed poffible in this in-
ftance;— yet ftill as the bequeft is not originally of a forcible and irrevoc-
* See V o l. I II. p. 27 7 .
Y y y