556 W I L L S. B ook LII.
• in fupport of his opinion, is that a third of the whole property is a fund
for the execution of wills, to' which extent only they are to be exe-'
cuted, and no farther. T h e arguments o f Haneefa, in fupport of his
opinion on this point, are twofold. F i r s t , the performance of the.
pilgrimage was the objedl of th e teftator, not the fettjng afide a fum
■ for that purpofe; and therefore the appropriation or delivery of the
money, without the accompliftiment of the objedt, is' of no confider-
ation, it being, in effedl, the lame as. if the fum had been loft previous
to the divilion,— in which cafe a third of the remainder would
be appropriated to the pilgrimage. S e c o n d l y , the divifion, with
refpedl to the legacy, is not perfedt and complete until the portion
bequeathed for the purpofe of pilgrimage be expended thereupon, as
' there is no perfon to take poffeflion o f it *. . Where,. therefore, this
fum is not expended in the performance of pilgrimage, the partition
is incomplete, and the cafe is (confequently) the fame as if the fum
had been loft or deftroyed before the partition.
A legacy, af- I f a perfon bequeath a third of one thoufand dirms to another who
» S s N F ls at that t‘me abfent, and the heirs confign the faid fum to the Kdzee,
the magi- in order to divide and fet apart the (hare of the abfent legatee, the di-
fcends ts/the vifion thus,made by the Kdzee is valid, becaufe of the original validity
!nScafeSof his of the will, infomuch that if the abfentee ftiould afterwards die, pre-
deceafe. vious to his having declared his acceptance, the legacy neverthelefs
devolves to his heirs.' The office of Kazee, moreover, isinftituted
with a view to the benefit of mankind, that he may attend to the
confervation of their rights, efpecially with refpedt to fuch as are dead
or abfent;— and as among thefe attentions to the rights of mankind
is the fetting: afide and taking poffeflion of the portions of abfentees,
fuch adts by him on behalf of an abfentde are valid of courfe,— info-
much that if fuch portion were deftroyed in his poffeflion, and the
* In other lyords, there is no individual legatee.
legatee
C hap. VII. ' W I L L S . 55*
legatee fhould afterwards appear, ftill he would have no claim upon
the heirs.
I t is lawful for an executor, in order to difcharge the debts of the
deceafed, to fell a Have for a fuitable price, in the abfence o f the creditors
; for as the teftator might have done fo during his lifetime, the
executor, as his reprefentative, is entitled to do the fame. The
ground on which this proceeds is, that the right of the creditors, to
the effects of the deceafed lies, not in the things' themfelves, but in
their worth ; and the worth of the {lave is not annihilated by the {ale,
as the price (which is in reality the worth) ftill remains. It is other-
wife with refpedl to an indebted flave ; for the fale of fuch' in the abfence
of the creditors is .not valid, as their right lies in the ferfon of
the .{lave, they having a claim to. the earnings of his labour,, which
would be annihilated by the fale of him.
If a perfon appoint another his executor, diredting him, after his
deceafe, to fell a flave, and beftow the price in charity, and the exr
ecutor accordingly fell the flave and take poffeflion of the price, and
it be afterwards loft or deftroyed with him, and the flave prove to be
the property of another perfon,, he [the executor] is accountable to
the purchafer for the. price, agreeably to the laws of file.; and he is
entitled to take, an equivalent from the effedts of the deceafed,. being,
as it were, an agent on his behalf. This indemnification, according
to Haneefa, he is to take from the whole of the eftate at large,, and
fuch is the Zahir Rawdyet. It is recorded from Mohammed, on the
contrary, that he is to indemnify himfelf from the. third of the effedts,,
as the inftrudtions of the deceafed were in the nature of a w i ll; and
the third of the property is the fund for the execution of a. will. The
ground of the dodtrine of the Zahir Rawdyet is, that as the. executor,
in the fale of the flave, was deceived by the teftator, the reftitution
made by him to the purchafer is therefore a debt due to him from the
teftator; and the debts, are difcharged from the whole of the eftate,
8 not
An executor
may, fell a
flave o f the
eftate, for the
difcharge of
the debts
upon it, in
abfence o f the
credi tors>
unlefs the
flave be in^
volved in
debt.
An executor,
having fold
and received'
the price o f
an article
which afterwards
proves
to be the property
o f another,
is accountable
to
the purchaferr
for the price
he had fo re.—
ceived ;.