The evidence
o f orphans to
the appointment
o f an
executor is
not admitted
i f he deny it.
The tefti-
mony o f executors
with
refpeft to
property, on
behalf of an
infant,
or o f an ab-
fent adult, is
not admitted.
evidence is valid, on a favourable conftruftion, Analogy would fug-
geft that here alfo the evidence is null, in the fame manner as in the
former inftance, and for the fame reafon. T h e ground of a more
favourable conflruftion, in this particular, is that as the Kdzee has.the
power of either appointing an executor at the firft, or aflociating a
third perfon (by that perfon’s Confent) with the two executors, without
any teftimony on their part, it follows that their teftimony
merely prevents the Kdzee from the trouble of nomination, by rendering
it unneceflary for him to feek out and name a proper perfon to
afiift in the executorlhip ;— the perfon ftill, however, holding his office
in virtue of the Kdzee's nomination.
If two orphans give evidence that their deceafed father had’ appointed
a particular perfon his executor, and the perfon mentioned1
deny the fame, their evidence is not credible, being liable to a fuf-
picion in the advantages they would draw from the labours of a perfon
exerted towards the prefervation of their property.
If two executors give evidence, on behalf o f an infant heir [their
ward] concerning property of the deceafed, or of any other perfon,,
it is of no effect; becaufe their teftimony merely tends to prove their
right to the management of fuch property.
If two executors give evidence, on behalf of an adult heir, concerning
property of the deceafed, it is of no effe£t; but it is valid
concerning property appertaining to any other perfon. This is the
dodrine of Haneefa. T h e two difciples are of opinion that in both
cafes the evidence is valid, becaufe it is not liable in either of them
to any fufpicion, as the power of an executor over the property
ceafes after the heir attains to maturity. T h e argument of Haneefa
is, that as executors have the power o f confervation, and alfo of
felling the moveable property of an adult heir in his abfence, it
follows
follows that their evidence, in favour o f an adult heir, concerning
any part of the deceafed’s eftate, is not altogether free from fufpicion.
It is otherwife with refped to their evidence, in behalf o f an adult
heir, concerning any other property, for over that the executors cannot
poflefs any authority, as the deceafed conftituted them his fub-
fhtutes with refped to his own eftate only, not with refped to the
property of others.
If two perforts bear evidence to a debt of one thoufand dirms, due
from a perfon deceafed to Omar and Zeyd, and Omar and Zeyd °ive a
fimilar evidence in favour of thefe two, the evidence on both parts is
valid. If, on the contrary, each of the parties in the fame manner
give evidence that legacies had been left by the deceafed to the other,
their atteftations are of no effe£l. This is the do<ftrine of Haneefa
and Mohammed. Aboo Toofaf maintains that in neither cafe are thefe
evidences valid ; and fuch alfo (according to the relation o( Khafdf)
is the opinion ,of Haneefa. There is alfo a tradition of Aboo Toofaf
having concurred in the opinion of Mohammed. The reafons urged in
fupport of the validity of the evidence, in the cafe of debt, is that
debt relates folely to the perfon ; and as the perfon admits a great variety
of rights, the evidence o f both parties is therefore admitted—
Neither does it follow, in this cafe, that either party is tp partake of
what may be obtained in payment by the other, fo as to caufe the
evidence of this party to be a mere eftablilhment of their own right of
participation,— infomuch that if a ftranger were to pay, to one o f the
parties, of his own accord, the debt alleged to be due, to that party,
ftill the other party is not at liberty to claim any fhare in fuch payment.
T h e reafons, on the other hand, againft the validity of the
evidence, in this inftance, is that as the death [of the debtor] occa-
fions the relation to lhift from the perfon to the property, fince in
confequence of the deceafo the perfon no longer remains, (infomuch
that if any one party were to obtain payment of his right from the
Qftate of the deceafed the other party participates with them therein,
provided
The mutual
evidence o f
parties, on
behalf o f each
other, to debts
due to each
from an eftate
is valid; but
not their evidence
to ls-
gacies,