He cannot
trade with
his ward’s
portion.
He may fell
moveable
property on
account of
the infant or
abfent adult
brother of the
tellator.
The power of
a father’s executor
precedes
that of
the grandfather.
ferved than the article itfelf. With refpedt, on the contrary, to immoveable
property, it is in a ftate of confervation in its own nature,
whence it is unlawful to fell it,— unlefs, however, it be evident that
it will otherwife periih or be loft, in which cafe the fale of it is
allowed.
I t is not lawful for an executor to trade with the property of the
orphan; for the confervation of it, merely, is committed to him, not
the power of trading with it,— according to what is mentioned in the
Awzah upon this fubjedt.
A c c o r d in g to Mohammed and Aboo Yoofaf, the executor of a brother,
with refpedt to an infant brother, or one of mature age, who is
abfent, ftands in the fame predicament as the executor of a father
with refpedt to his adult abfent fon;— (in other words, he is empowered
to fell the moveable property of the orphan or abfentee;)
and fo likewife of an executor appointed by the mother or uncle ; for
as the mother and uncle are permitted to interfere in the management
o f the property fo far as relates to its prefervation, fo alfo is the executor
who reprefents them»
T he power of the father’s executor, in the management of the
property of his orphans, is fuperior to, and precedes that of the grandfather.
Shafci is of opinion that in this refpedt the grandfather has
the fuperior power ; becaufe the l a w has ordained him to be the re-
prefentative of the father, where the latter has ceafed to exift,—
whence it is that [failing the father] the grandfather inherits to his
grandfon. T h e argument of our dodtors is, that as, in confequence
of the will, the authority of the father devolves upon his executor,
the executor’ s authority is therefore that of the father, in effedt,— and
confequently the father’ s executor precedes the grandfather, in the
fame manner as the father himfelf would. T h e ground of this is,
5 that
that as the father, notwithftanding the exiftence of the grandfather,
appointed another to adt for his children, it may be thence inferred
that he confidefed fuch appointment more beneficial to them than if
they had been left to the management of thegrandfather..
IF a father die without appointing an executor, thegrandfather iftherebeno
reprefents the father* ; becaufe a grandfather is moft nearly related to grandfether
the children of his fon, and moft interefted in their welfare whence is the father’s
reprelcntait
is that the grandfather is empowered to contradt the infant wards in tire,
marriage, in preference to the father’s executor,— notwithftanding
the latter have precedence 6f him in point of managing and adting
with the property,' for the reafons already affigned.
C H A P . VIII.
Of Evidence with refpedt to Wills.
I f two executors give evidence that the deceafed had affociated a The evidence
third perfon with them, and that perfon deny his having'done fo, the cut™°toXth'e
evidence of the executors is of no effedt; becaufe their aflertidn having appointment
a tendency to their own advantage, in the eafe it will afford them not valid un-
from part of their labour, lays them open to fufpicion. If, on thd
contrary, the third perfon claim or admit of the executorfhip, their
* Literally, tc is in the ß ea d o f ” or tcßand s in the place o f ”
4 B 2 evidence