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Al-Mughni by Ibn Qudama - Edited by Al-Turki
Volume 8 · Page 197Section

Translation · EN

Whether due to the context or due to our statement that the absolute (al-mutlaq) implies generalization, and there was nothing in its wording that implies participation or order, it is possible that it is shared among them all, because they entered into the wording in a single entry; thus, it is necessary that it be shared among them, as if he acknowledged a debt to them. It is also possible that it is in order, according to the order of inheritance. This is the apparent meaning of Ahmad's words; for he said concerning one who made an endowment to the 'children of Ali ibn Isma'il' and did not say: 'If the children of Ali ibn Isma'il die, it is passed to their children.' The children of Ali ibn Isma'il died and left behind children. He said: 'If some of the children of Ali ibn Isma'il die, it is passed to their children also; because this is of the children of Ali ibn Isma'il.' Thus, he assigned it to the children of whoever died among the children of Ali ibn Isma'il at the time of their father's death. This is because when the children of the sons entered into the words of Allah the Almighty: 'Allah instructs you concerning your children: for the male, what is equal to the share of two females,' and the children of the sons did not deserve anything while their fathers were present, but deserved it upon their absence, it is the same here. As for if he bequeaths to the 'children of so-and-so,' and they are a tribe, there is no order in it, and the higher and the lower deserve it in any case.

Section: If he orders it by saying: 'I have made this endowment upon my child, and the child of my child, as long as they reproduce and succeed one another, the higher then the higher, or the closer then the closer, or the first then the first, or the first generation then the second generation,' or 'upon my children, then upon the children of my children,' or 'upon my children, and if they become extinct, then upon the children of my children,' all of this is in order. It is according to what he stipulated, and the second generation does not deserve anything until the entire first generation becomes extinct. If one [person] remains from the first generation, the entirety is for him; because the endowment was established by his words, so the requirements of his speech are followed. If he says: 'Upon my children, and their children as long as they succeed and reproduce, on the condition that whoever among them dies and leaves a child, what was applicable to him is applicable to his child,' this is evidence of an order. Because if it implied participation, it would imply equality; and if we gave the child of the child a share like the share of his father, then we passed his father's share to him, he would have two shares, and others would have one share, and this contradicts equality. Also, because it leads to favoring the child of the son over the son, and the apparent [intent] of the endower is contrary to this. Once the order is established, it is arranged between

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