Cafe o f a
teftator appointing
different
executors
at different
times.
In cafe o f the
death o f a
joint executor,
the raa-
giftrate mult
appoint a fub-
ftitute,
debts, becaufe thefe are exercifes of power which they muft perform
jointly, in conformity with the will and intention of the teftator.)
I f a perfon appoint two executors in a feparate manner, (as if he
ftiould firft fay to the one “ I have appointed you, my executor,” and
again, at a different period, to the other “ I have appointed you my
executor,” ) fome allege that in this cafe each of them has individually
a power of exercifing the fundtions of his appointment, without con-
fulting the other, in the fame maimer as two agents, where they are
appointed by different commiflions;—the reafon of which is that the
teftator, in appointing the two feparately, indicates his aflent to each
adting from his own judgment, without the others aftiftance or advice.
Others, again, fay that concerning this cafe.alfo a difagreement fubfifts
between Haneefa and Mohammed on one fide, 'and Aboo Toofaf on the
other ; becaufe a will is not eftablifhed until the death of the teftator; and
at that time both are executors together, notwithftanding they had been
appointed feparately. It is otherwife with two agents appointed under
different commiflions; for the appointment of each of thofe ftift i
continues diftindt and feparate, as fettled by the conftituent.
I f one o f two executors die, it is incumbent on the Kdzee to appoint
another in his room. This is the opinion of Haneefa and Mohammed
; becaufe, according to their dodtrine, the remaining executor
has not, o f himfelf, power to adt on every occafion, and the intereft
of the deceafed therefore requires the appointment o f another to ope-
rate-with him; and it is alfo the opinion o f Aboo Toofaf, becaufe, although
the remaining executor be (according to him) empowered
to . adt of himfelf, ftill it behoves the Kdzee to appoint another his
companion ; for the defign of the teftator evidently was, to leave two
fucceflqrs the management of his concerns,; and as this may be fulfilled
by the appointment of a fubftitute for him who dies, one muft
be appointed accordingly.
I f
C hap.V I I. W I L L S .
I f the deceafed executor have appointed the living executor to adt
for Him; it is in that cafe lawful for the latter (according to the Zahir
Rawdyet) - to adt alone, nor is it incumbent on the Kdzee to appoint
another in the room of the deceafed; becaufe here the judgment of
the deceafed executor virtually fubfifts in the living one, as it were,
by fuceeffion.— (There is a tradition of Haneefa having contradidted
this dodtrine,' becaufe of its repugnance to the’ objedt of the teftator,
namely, the agency of two perfonis: in oppofition to the cafe where
a dying executor appoints: fome other perfon to fucceed him;' for fuch
appointment is valid, becaufe of its * being attended with the advantage
of the judgment of two diftindt perfons, as was intended by
the teftator.)
If an executor, previous to his death, appoint another perfon his
executor, in that cafe the perfon fo appointed is entitled to adt as executor,
both to him, and alfo to the perfon to whofe affairs his immediate
teftator had adted as executor. This is according to our doctors.^
Shafei maintains that the perfon fo appointed is not entitled to
adt as executor to the firft deceafed, becaufe of the analogy his'appointment
bears to that o f an agent; in other words, if a perfon,
during his lifetime, appoint an agent to adt for him, that agent is
not permitted to delegate his powers to another without having pre-
vioufly obtained the confent of his conftituent.— (Th e ground of analogy
between thefe two cafes is, that in the fame manner as the conftituent
is fuppofed to place a reliance on the agent, and on him only,
fd alfo the teftator may be fuppofed to adt with regard to the executor.)
The arguments of our dodtors upon this point are twofold.,— F i r s t ,
an executor derives his power from the teftator; and it is therefore
lawful for him to appoint an executor to fucceed him;— in the fame
manner as in the "cafe of a grandfather; in other words, a father has
the power o f bellowing his child in marriage, which devolves- upon
his father after his death ; and the'grandfather has in fuch cafe the
power of appointing an agent for the execution of the child’ s mar-
4 A 2 riage;
547
unlefs the deceafed
have
himfelf nominated
his
fucceffor.
The executor
o f an executor
is his fubftitute
in office.