It has been narrated from Umar, may Allah be pleased with him, that he bequeathed four thousand to his ummahat al-awlad (slave women who have borne his children). Sa'id recorded it. This was also narrated from Imran ibn al-Husayn. Maimun ibn Mihran, al-Zuhri, Yahya al-Ansari, Malik, al-Shafi'i, and Ishaq also held this view. If he bequeaths to his mudabbar (slave granted deferred emancipation), it is valid, because he becomes free at the time the bequest becomes binding; thus the bequest to him is valid, just as in the case of an umm walad. If both he and the bequest (to someone else) do not fall within the one-third of the estate, his emancipation is prioritized over the bequest because it is more beneficial. Al-Qadi said: A portion of him is emancipated, and he owns of the bequest in proportion to what was emancipated of him. Our argument is that he made a valid bequest to his slave, so his emancipation is prioritized over what he receives of the wealth, just as if he had bequeathed to his absolute slave (qinn) an undivided share of his wealth.
Section: If he bequeaths to the slave of someone else, it is valid, and the bequest belongs to his master, while the acceptance of it rests with the slave, for the contract is attributed to him, resembling the case where he grants him something. Once he accepts it, it is established for his master, because it is from the earnings of his slave, and the earnings of the slave belong to his master. The acceptance does not require the master's permission, because it is an earning, so it is valid without the master's permission, like gathering firewood. This is the opinion of the people of Iraq and al-Shafi'i. His disciples have another view, that the acceptance requires the master's permission, as it is a disposition by the slave, resembling his buying and selling. Our argument is that it is the acquisition of wealth without exchange, so it does not require his permission, like accepting a gift or acquiring permissible things. If he bequeaths to the slave of his heir, it is like a bequest to his heir, which is dependent upon the approval of the heirs. This is the opinion of al-Shafi'i and Abu Hanifa. Malik said: If it is a small amount, it is permitted, because the slave owns, and his master only takes it from his hand. So if he bequeaths to him a small amount, it is known that he intended the slave by it, not his master. Our argument is that it is a bequest to the slave of his heir, so it resembles a bequest
(8) In (A) and (M) there is an addition: "four thousand". This is an addition in the Sunan of al-Darimi. Sa'id extracted it in "The Bequest of the Minor," al-Sunan 1/128. It was also extracted by al-Darimi in: "Chapter on One Who Bequeaths to His Ummahat al-Awlad," from the Book of Bequests. Sunan al-Darimi 2/423. (9) Omitted from (M).
