33° W I L L S . B o o k LII.
able nature, the legatee of ufufruft is of courfe not at liberty to let the
article to hire, lince hire,'as being a contract of exchange, is forcible
and irrevocable. S e c o n d l y , ufufruft (according to our dodtors) is
not property; but the inveftiture of it for property induces a creation
of the character, of worth in it, neceflarily, in order to eftablifh an
equality between the articles oppofed to each other in exchange. Now
the power of fuch creation refts only with one who is a proprietor of
ufufrudt as a dependant of his right of property, or in confequence of a
contract of exchange, and who is confequently empowered to make
over the property to another in the lame manner in which he himfelf
may have held it. But when a perfon who acquires the property of
ufufrudt without any return on his part, and in an. original manner,
(that is, not in virtue of its fubjedtion to fomething elfe,) afterwards
makes it over to another for a return, it follows that he makes another
proprietor of a thing in a degree fuperior to what he himfelf in
effedt was, which is unlawful.
A bequeft of
the ufe o f a
Have does not
entitle the
legatee to
carry him out
o f the place,
unlefs his family
refide
clfewhere.
I f a perfon bequeath the fervice of his Have to another, the legatee
is not entitled to carry the Have from the city of the teftator ;—
unlefs his own family refide in another city, in which cafe he may
carry him thither, provided he exceed not a third of the teftator’ s property.
T h e reafon of this decifion is, becaufe the bequeft muft take
eftedt and be executed in conformity with the intent of the teftator;
and in a cafe where the family of the legatee refide in the fame city
with the teftator, his intent is that the legatee fhall take the fervice
of the Have there, without expofing him [the flave] to the trouble
of a journey elfewhere;— whereas, on the other hand, where the family
of the legatee refide in a different city, the intent of the teftator
is that the legatee fhall carry the flave thither in order that the family
may enjoy the ufe of his fervice, without putting them to the trouble
o f removing to his [the teftator’s] city to enjoy this advantage.
If
If a perfon leave one year’s produdt of his flave or houfe to another,
and hp have no other property except fuch houfe or flave, the
legatee in that cafe receives-one third of a year’s produdt ; becaufe
produdt, as being property, is capable of divifion. If, therefore, the
legatee require the heirs to make a divifion of the houfe, in order that
he may himfelf colledt the produdt from his own fhare, (being a third,)
it would not be admitted. Aboo Toofqf, indeed, according to one re-1
port, holds a contrary opinion ; for he argues that the legatee is a
partner with the heirs; and a partner has a right to demand a1 divifion
of the common property. In anfwer to .this, however, itm aybe 'ob-
ferved that this right amongft -copartners arifes from their having a
property in the article itfelf; whereas the legatee, in the prefent in-
ftance, has a property only in the product o f the article, and confequently
is not entitled to demand a divifion.
I f a man bequeath the perfon of his flave to Zeyd, and the fervice
of him to Omar, and the flave exceed not a third of the teftator’s eftate,
his perfon belongs to Zeyd, and his fervice to Omar ;■ for as the teftator
has bequeathed a fpecific thing to each legatee refpediively, each is
therefore entitled to his own right. As, moreover, (the Bequeftsto
the ufufrudtuary legatee being at any rate valid,) i f the Have’s perfon
had not been bequeathed, that would have belonged to the heirs, at
the fame time that his fervices would have belonged to the legatee ;
fo in the fame manner his fervices belong1 to the legatee of ufufruft
where the teftator has bequeathed his perfon to another ; for bequeft
refembles inheritance, inafmuch as the right of property to the article
is eftablifhed after death in both inftarices.
If a perfon bequeath his female flave to one and the child in her
womb to another, or a ring to one and the ,ftone of it to another, or a
leathern bag, containing dates, to one, and the dates to another, and
the legacy do not exceed a third of the eftate,— in this cafe the firft
legatee gets his legacy, but the legatee of the contained article is not
1 Y y y 2 entitled
A bequeft o f
a year's produdt,
i f the
article exceed
a third
o f the eftate,
does not entitle
the legatee
to a
confignment
o f it.
Tn a bequeft
o f the ufe o f
an article to
one, and the
fubftance o f
it to another*
the legatee o f
ufufruftisex-
clufively entitled
to the
ufe during his
terni.
A bequeft o f
an article to
one, and its
contents to
another* i f
conneftedly ex-
preffed, entitles
the fe