53+ W I L L S . Book LIT.
I ll'
•’ Ki]ll|li| III
III i l i
1
t M l i H
l i i ■ i
f f l j !
iilftill
every in-
Itance.
have been expreffed; as the term wool, or fo forth, (as mentioned
above,) do not comprehend what is not adtually in being. It is other-
wife with refpedt to fr u it, (although that term alfo, in its common
acceptation, comprehends only what is adtually exiftent, and a bequeft
of non-exiftent fruit be neverthelefs valid,) becaufe ordained contracts *
(fuch as of,, gardening and hire) with refpedt to non-exiftent fruit
being good in l aw , it follows that the word fr u it, mentioned with a
condition of perpetuity, comprehends alfo what is non-exiftent, and
that a bequeft of fuch is valid. It is.otherwife with the wool, the
milk, or the young of a flieep ; for as, with refpedt to the non-exiftent
of thofe articles, there are no ordained contrails, a bequeft o f fuch
is not valid:— contrary to what is exiftent; for thefe are fubjedts of a
valid contradt (fuch as Khoola and the like,) and therefore a bequeft of
them is likewife valid.
C H A P . VI.
Of Wills made by Zimmees.
A church or I f, a Jew or a Chriflian, being in found health, build a church or a
fourSfd'’* fynagogue, and then die, fuch building is an inheritance, according
during health, , 0 Ig our Joflors ; becaufe Haneefa holds an eredtion of this nature to
defeends to u . . .
the founder’s be equivalent to a Wakf \ or pious appropriation, which (agreeably to
heirs.
* O r c fc in e d contrails are fuch as are authorized and fan£tioned by the K oran, and
concerning the validity of which, therefore, no doubt can be entertained.
5 bis'
Chap. VI. W I L L S . 35
his tenets) is tiobabfolute*, but defeends to the heirs of the founder;
and the two difciples, on the other hand, hold all fuch eredtions to be
finful in their nature, whence they are o f no validity [as a public-
foundation,] and therefore defeend to the heirs [in the fame manner
as any other of the founder’s property.]
If a Jew or Chrifiian will that, after his death, his houfe fhall Inthebe-
“ be converted into a church or iynagogue for a particular let of peo- houfe°o the
“ rp ie,” the beq+ ueft is valid7, accordinog to all our dodtors7, and takes ■ iPnufirdPeolf epylafc ean
effedt to the extent of a third of the teftator’s property; becaufe a be- o f worfhip, it
queft has two different charadters,, the appointment of a fuccefltfr, ared accotdl
and an adtual endowment; and the teftator is competent to either of lngb>
thefe.
If a Jew or Chriftian will that “ his houfe be converted into a
“ church or fynagogue for a fed! of people,” without fpecifying the
particular fedt, the bequeft is valid, according to Haneefa. According
to the two difciples, on the contrary, it is not valid ; for a deed of
that nature is in reality finful, although it may appear pious to the
teftator ; and a will for a finful purpofe is null, becaufe the execution
of it would be a confirmation of fin. T h e argument of Haneefa is,
that the founding of churches or fynagogues is held, by thefe perfons,
to be an adt of p iety; and as we are enjoined to leave them to the ex-
ercife of whatever may be agreeable to their faith, the bequeft is
therefore lawful, in conformity with their belief.
Objection.— What is the difference between the buildino- a
church or fynagogue in the time of health, and the bequeathing it by
will, that Haneefa fliould hold it inheritable in the former inftance,
and not in the latter ?
Reply.— The difference is this: that it is not the mere erecting
[of the church, &c.] which extinguifhes the builder’ s property, but
whether any
particular legatees
be
mentioned,or
otherwife.
the