is, that the Have is fane and adult, and therefore capable of the dif-
charge of fuch truft. Neither has any perfon the power o f prohibiting
him from it, becaufe the heirs, although they be his mailers, yet
cannot exert this power, on account of their youth. As, moreover,
the deceafed appointed him to this truft, it may hence be inferred
that.his tendernefs, and regard for the heirs was fuperior, in his opinion,
to that of any other. This appointment, therefore, is valid;
in the fame manner as that of a Mokcitib;— in other words, if a
perfon appoint his Mokdtib his executor it is valid; and fo here like-
wife.
In cafe Of the M, an executor be unequal to the execution of his office, it is in-
executor’sin- curnbent on the Kdzee to affociate another, with him, in order that
magiftrate * the duties of the office may be properly executed.
mull give
him an af-
Ip ail executor reprefent to the Kazee his inability to execute, the
not do fo on duties of his charge, it is recjuifite, in fuch cafe, that the K a z e e , be-
Pleading1 in- fore he attends to his reprefeatation, make particular enquiry into the
capacity. M i 0f lt, as complainants of this kind often affert falfehoods, with a
examination; view to alleviate their own burden. But if it {hall appear to the K c iz e e ,
on due examination, that the executor is utterly incapable o f the office,
he muft releafe him, and appoint another in his place," this being advantageous
both to the executor and to the efta'te.
Hi If an executor be perfedtly equal to the difeharge of his office, and
pear per feftly truftworthy therein, the Kdzee is not at liberty to diimils him; tor
office, he can- any perfon whom the Kdzee may appoint in his place muft be lefs eli-
mevtd"' giblc, as the deceafed had particularly feleded him, and fignified his
confidence in him. He therefore muft be continued in preference to
all others; even to the teftator’ s father, notwithftanding his fuppofed
tendernefs; and confequently to others a fortiori.
If
If all or part of the heir's prefer a complaint againft the executor,
ftill the Kdzee muft not difmifs him immediately, nor until his guilt theramplaint
be afoertained, as he adds under an authority derived from the deceafed. unle'fs his
If, however, he prove culpable, it is incumbent on the Kdzee to dif-
mifs him and appoint another in his place ; for the deceafed nominated
him to the office from fuppofing him worthy of confidence; but upon
Being found culpable he no longer continues fo, infomuch that if the
teftator were living he would himfelf difeharge him;— and as he is
incapacitated, by death, from fo doing, the Kdzee muft take this upon
him as his fubftitute.
If a man appoint two executors, neither of them is entitled, ac- One oft»»
cording to Harieefa and Mohammef to aft without the other, except {„rscanoM
in particular caffes, of which an explanation fhall be hereafter given.— | | concur-
Aboo Yoofaf is of opinion that in all cafes either of them may adt with- rence of the
out the other, becaufe, an executor is endowed with his power o f ’
adtiori irt virtue of the will o f the teftator; and as power of atftion is a
thing fandtioned by the l a w , and incapable of divifion * , he enjoys his
power complete arid perfedt in the fame manner as a complete authority
to contradi their infant After in marriage appertains to each o f her
brothers refpedtively.— (T h e ground o f this is, that executorfhip is a
fucceffion, which fucceffion Cannot be eftablifhed in the executor,
unlefs the authority of the teftator devolve to him in the fame degree
in which it had appertained to the teftator, that is, completely, and
perfedtly.)— T h e teftator’ s choice, moreover, of the two to be his
executors is an argument of the particular attachment o f each to his
iritereft, which attachment is equivalent to the confanguinityof two
brothers in the point o f contradting their infant After in marriage—
T h e arguments of Haneefa in fupport of his opinion are twofold.—
F irst, the power of an executor, being derived from the teftator, is
of confequence to be exercifod in the manner prefcribed by him ; and
* That is, cannot be enjoyed or exercifed partially, 3 »