riage ; and fo likewife, it is lawful for an executor to appoint another
executor, as the power appertaining to the teftator devolves upon h i*
executor, in the fame manner as a father’s right to difpofe of his ch ild
in marriage devolves upon the grandfather. As,, moreover,, the
grandfather is the father’ s fubftitute with regard to the power w h ic h
devolves: to him, fo in the fame manner the executor is the fubftitute
o f the teftator; becaufe the nomination of an executor is:, in effeft,
an appointment, by the teftator, of a fubftitute with refpeft So the
matters in which he is himfelf empowered ; and as the executor, at
the time of his death, poflefl’ed a power with refpect to both eftates,
(his own, and alfo that of his teftator,) it follows that the fecond
executor (that is, the one appointed by him) is his fubftitute with
refpedt to both eftates alfo.— Secondly, as the teftator had recourfe
to the exiftence of the executor, notwithftanding he knew there was
a poffibility of his dying in the interim, and thereby leaving his object
unaccomplilhed, it may be inferred that' his intention was that
his executor Ihould in fuch cafe appoint another. I t is otherwife with
an agent; for he is not at liberty to appoint any other perfon his agent
without the content of his conftituent; becaufe, as the latter, is ftill
living, and confequently has it in his power to accomplifh his object
himfelf, it is therefore not to be fuppofed that he will content to his
agent appointing another agent under him.
An executor
is entitled to
poffefs him*
felf of the
portions of
infant and
abfent adult
heirs, on their
behalf j
I f an executor, the legatees being prefent, divide off the eftateof
the teftator from the legacies, on behalf of his heirs who are infants,
or adult abfentees, and take pofleffion o f their portions, it is lawful;
for an heir is fucceffbr to the deceafed; and as an executor is alfo a
fucceflor to him, he is of courfe a competent litigant on behalf o f infant
or abfent heirs, and may, of confequence, make a divifion, and
poffefs himfelf of their portions on their behalf,— infomuch that if
thofe portions were to perifh in his hands, ftill they are not at liberty
to participate with the legatees in what remained to them after fuch
divifion.
5 If
W I, L L S.
If, oa the contrary, an executpr, the heir* being adult and prefect,
divide off the legacies from, t:h,e eftate, and, take pofleffion of
them oa behalf o f intent or abfent legatees, it is. unlawful; fop a legatee,
is. not a fucceflor to the deceafed in every refpedt, he being con-
ftituted a proprietor by a new and lupervenient caufe ; and as., therefore,
the executor does not fland as litigant on his behalf, his taking his
[the legatee’s], portion is. not valid,— infomuch that if the legacy were
to perifh in his [the executor’ s] hands, the legatee would be entitled
to take a third of whatever had remained to the heirs. Neither is any
compentetion due from the executor in this inftance ; becaufe an executor
is a truftee ; and as the power of conferving the effefts of the
teftator is lodged in him, the cafe is therefore the fame as i f the lofs
had happened previous to the divifion of the effefts.
I f a perfon bequeath a fum for the performance of a pilgrimage to
Mecca, and then die, and the executor divide off the feid fum from
the heirs, and take pofleffion of it, and it be afterwards loft or de-
ftroyed, either in his charge,' or in that of the perfon whom he had
appointed for the performance of the pilgrimage, in that cafe, according
to llaneefa, a third o f the remaining property of the deceafed
muft he appropriated for the piLgrimage. Aboa Toofaf, on the other
hand,, holds that if the fum thus loft have been originally equivalent
to a third of the property, nothing is afterwards to be taken from the
heirs.; b.ut that if it was. fete, the deficiency muft be applied to the
purpofe of the pilgrimage. Mohammed, on the contrary, is of opinion
that in neither cafe is the executor to take any thing from the heirs ;
becaufe the fetting afide of a particular fum, for the performance of
the pilgrimage, was the undoubted right o f the teftator; and as, if
he had himfelf fet afide the fum for that purpofe, and it had afterwards
been loft or deftroyed, nothing further would have, been required,
and the legacy would have been void, it is in the fame manner
void where the fum was fet afide by the executor, as he adts for,
and ftands in the place of, the deceafed. T h e argument of Aboo Toofaf,
in
but not of the
legacies of
infant or abfent
legatees.
A legacy appropriated
to
pilgrimage,
if loft, muft
be repaired,
to the extent
of a third of
the eftate.