;m the cafe in queftion, the teftator has entrufted this power to both
the executors, on the condition of their being united in the truft, for
he does not exprefsly affent to their a fling otherwife than jointly, and
the above condition is moreover attended with advantage, as the deliberations
of two perfons are better than of one. It is otherwife with
two brothers, ..in the circumftance of contrafling, their infant filler in
marriage, (as adduced by Aboo Toofaf,') fince the caufe of fuch authority
being-, veiled in them is relationfhip, a caufe which exifts equally
in each. The contrafling in marriage, moreover, is a right of the
infant, refting upon her guardian, (infomuch that if the infant require
her guardian to contrafl her to any perfon, being her equal, for
whom The has.a liking, he mult comply,) whereas,' in the cafe here
confidered, the afling [with the eftate] is the right of the executor
h'imfelf, not of another rejling upon him. In the cafe of contracting
the infant in marriage, therefore, i f one of the two brothers lb contract
her, he merely difcharges a duty incumbent on the other brother,
and his afl is therefore valid; whereas, in the cafe of executor-
Ihip, i f one of the two act alone,. he exercifes a fight appertaining to
the other, and his fo doing is therefore invalid;—in the fame manner
as.where two perfons owe a fum of money to one, in which cafe it
would be perfectly lawful for either of them to difcharge the whole
debt, whereas, fuppofing. one man to owe a fum of money to two
others, it .would not be lawful for him to pay the whole to either of
e x c e p t in f u c h them. T h e cafes excepted by Haneefa and Mohammed, in which
quTreimme- they hold the acts of either executor, fingly, to be valid, are fuch as
diate exeoi- reqUire immediate execution. Thus it is lawful for either executor. icon, x. . ’
fingly, to difburfe the funeral charges, as a delay in this might occa-
fion the body to become offenfive; whence it is that a fimilar po,wer
is veiled in the neighbours. In the fame manner, either of the executors,
fingly, may purchafe victuals or clothes for the infant children
of the teftator, this being a matter of urgency, and which admits of
o r w h i c h a r e no delay. So, likewife, it is lawful for either o f the executors to re-
°lrnt nature!", ^ ore a depofit, an ufurped article, or a thing purchafed by the teftator
under
54 5
under an invalid contract. In preferving the eftate of the teftator,
alfo, and in difcharging his debts, the act of either executor is lawful
independant of the other. For none of thefe are confidered as an ex-
ercife o f power, but ‘merely the performance of a duty,— infomuch
that the depofitor.has himfelf a right to feize and carry a tv ay his de-
pofit, i f he :find it among thé effects'of the deceafed, and the creditor
has a fimilar right with regard to his debt and it is, moreover, the
duty of every one into whofe hands property may fall, to attend to the
prefervatioii'of it, whence this comes under the defcriptidn of aid and
afliflance, not of an exercife o f power ;— neither do any o f thefe acts
require thought or confederation. Either o f the executors has alfo a
right .fingly to . difcharge a legacy, or emancipate a Bave, i f d ireted
by the teftator, beoaufe fuch deeds require no thought-or confederation
In the fame, manner, either of them may inftitute a fuit in
claim of the rights of the teftator, beoaufe a conjunction of both in fó
doing would be impracticable, fince, i f they were to do it at one and
the fame time; in the affembly of the Kazee, they mull oceafion noife
and confufion ;— (whence it is that only one of two agents for litigation
is aUowed.to plead.at a time.) T h e acceptance o f a gift for an
infant is likewife an ait which either may perform fingly; for in cafe
o f delay there is a poflibility of the gift being rendered null by the
death o f the donor previous to the feizure. Thefe acts,'moreover,
being permitted to a mother and nurfe, is. a proof.that-they are not
exertions o f power. It is likewife permitted to any of the ex-ecutors,
fingly, to fell goods where there is an apprehenfion of their fpoiling,
as in the cafe of fruit, and the like ; and alfo to collect together and
preferve the fcattered property of the teftator, as a delay might \ occa-
fion. the deftruction of it; and fuch permiflion is, moreover, given to
every perfon into whofe hands property may fall, whence it may be
inferred that this is not an exertion of power. (It is recorded, in the
fama Saghcer, that none of the executors* where there are more than
one, has fingly the power of felling goods, or receiving payment of
V o l . IV . 4 A debts,
or in which
the intereft or
advantage of
the eftate are
concerned.