985 - Issue: He said: "And if he makes a bequest (wasī) to a man, then makes a bequest after him to another, they are both executors, unless he says: 'I have removed the first.'"

The meaning of making a bequest to a man is that he grants him authority to act after his death regarding matters in which he himself had the authority to act, such as paying his debts, collecting what is owed to him, returning deposits and recovering them, distributing his bequests, and exercising guardianship over his children for whom he had guardianship—those being minors, the insane, and those whose maturity has not yet been established. This also includes looking after their financial interests by preserving them and managing them in ways that are to their benefit. As for those over whom he has no guardianship, such as rational, mature individuals, or relatives other than his children—such as brothers, paternal uncles, and any others—the bequest of guardianship over them is not valid, because the testator had no guardianship over them during his lifetime, so his representative cannot have it after his death. We are not aware of any disagreement regarding this. This is the opinion of Malik, Abu Hanifah, and al-Shafi'i, except that Abu Hanifah and al-Shafi'i stated: The grandfather has guardianship over his son's son, even if [the lineage] descends, because he possesses both procreation and ascription (ta'sib), so he resembles the father. Among the followers of al-Shafi'i, there are two views regarding the mother in the absence of the father and grandfather: one of which is that she has guardianship because she is one of the two parents, so she resembles the father. Our view is that the grandfather gains his status through an intermediary, so he resembles the brother and the paternal uncle; he differs from the father, for the father holds his status by his own right and blocks the grandfather, and he differs from him in inheritance and in blocking, so it is not valid to equate him to the father nor to draw an analogy with him. As for the woman, she does not hold guardianship, because she is considered deficient and cannot supervise a marriage in any circumstance, so she cannot supervise the wealth of others, like a slave; and because she does not hold the office of a judge, she therefore does not hold guardianship by lineage. When this is established, if he makes a bequest to a man, then makes a bequest to another, they are both executors, unless he says: "I have removed the first" or "I have dismissed him," due to what we have mentioned in the case where he bequeathed a slave girl to Bishr, then bequeathed her to Bakr. And because the appointment of both has occurred without the dismissal of either one, they are both executors, just as if he had bequeathed to them both at the same time. However, if he removes the first, he is dismissed, and the second is the sole executor, just as if he had dismissed him after appointing the second.