provided that it does not diminish the fixed share of the sharer at all. Or, if he leaves a wife and says: "I have bequeathed to you what remains of the wealth after her fixed share." This is valid in the first case, because the sharer would inherit the entire wealth if not for the bequest, so there is no difference in the bequest between making it from the principal of the wealth or from what is in excess of the fixed share. As for the second case, it is built upon the bequest of the entire wealth; if we say it is valid there, it is valid here, because what remains after the wife's fixed share is wealth for which there is no heir, so the bequest of it is valid, just as if there were no wife. If we say it is not valid there, then it is the same here, because the public treasury (bayt al-mal) is made like an heir, so it becomes as if he has heirs who exhaust the wealth if he specifies the bequest from the portion of the 'asaba (agnatic heirs) among them; based on this, the legatee is given one-third from the principal of the wealth, and his specification is dropped.

975- Issue: He said: "And whoever bequeaths to his slave one-third of his wealth, if the slave can be paid out of the one-third, he is emancipated, and whatever remains of the one-third after his emancipation belongs to him. And if he cannot be paid out of the one-third, he is emancipated from it to the extent of the one-third, unless the heirs permit it."

And the summary of this is that if he bequeaths to his slave an undivided share of his wealth, such as a third, a quarter, or a sixth, the bequest is valid. If the slave can be paid out of the bequest, he is emancipated and becomes entitled to the remainder of it; and if he cannot be paid out of it, he is emancipated from it to the extent of the bequest. This is the opinion of al-Hasan, Ibn Sirin, and Abu Hanifah, except that they said: If he cannot be paid out of the one-third, he must work to earn the value of the remainder. Al-Shafi'i, may Allah be pleased with him, said: The bequest is void unless he bequeaths his emancipation; because he bequeathed to property that will belong to the heirs, so it is not valid, just as if he had bequeathed to him a specified object. Our argument is that the undivided share encompasses him or a part of him, because it is from the entirety of the undivided one-third, and the bequest to him of himself is valid, so he is emancipated, and he becomes entitled to what remains, because he becomes free and thus gains the legal capacity to own the bequest; it becomes as if he said: "Emancipate my slave from my one-third, and give him..."