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Al-Mughni by Ibn Qudama - Edited by Al-Turki
Volume 8 · Page 414

Translation · EN

half of the bequest, regardless of whether he knew of the deceased person’s death or was ignorant of it. This is the opinion of Abu Hanifah, Ishaq, and the Basrans. Al-Thawri, Abu Yusuf, and Muhammad said: If he says, "This hundred is for so-and-so and so-and-so," it belongs to the living one among them. If he says, "Between so-and-so and so-and-so," the Thawri agrees with us that half of it belongs to the living one. From al-Shafi'i, there are two opinions similar to these. Abu al-Khattab said: In my view, if he knows he is dead, the entire amount belongs to the living one; if he does not know he is dead, the living one receives half. It has been narrated from Ahmad that which indicates this opinion, for he said, in the report of Ibn al-Qasim: If he bequeaths one hundred to so-and-so and so-and-so, and one of them turns out to be dead, the living one receives fifty. It was said to him: Is it not the case that if he says, "My third is for so-and-so and for the wall," the entire third is for so-and-so? He replied: And what is similar to this? The wall has no ownership! Thus, whenever he joins one for whom a bequest is valid with one for whom it is not—such as bequeathing to so-and-so, or to the King, or to a wall, or to a deceased person—the entire bequest goes to the one for whom the bequest is valid, provided he is aware of the situation. This is because if he joins them in such a state, it is known that he intended the entire bequest for the one for whom the bequest is valid. But if he is unaware of the situation, the one for whom the bequest is valid receives half, because he intended to deliver half of it to him and the other half to the other, under the assumption that the bequest to him was valid; so when the bequest becomes void regarding one of them, it becomes valid regarding the other in proportion, similar to the splitting of a transaction (tafriq al-safqa). The reasoning for the first opinion is that he made the bequest to two people, so neither of them is entitled to the whole of it, just as if they were both people for whom a bequest is valid and one of them died, or as if he were unaware of the situation. As for if he bequeaths to two living people, and one of them dies, the other receives half of the bequest. We know of no disagreement regarding this. Likewise, if the bequest becomes void regarding one of them due to his rejection of it or because he falls outside those eligible for it. If he said: "I have bequeathed"

Notes

(2) Omitted from M. (3) In M: "when". (4) In M: "and to the King". (5) Omitted from the original.

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