[LECTURES II. TO VIII.-ON INHERITANCE.]

LECTURE II,

ON SHARERS AND RESIDUARIES.

Preliminary Remarks.

THE heirs are of three descriptions: 1-Sharers, 2— Residuaries, and 3-Distant kindred. The sharers and residuaries inherit simultaneously if they occur together in one and the same case, as in the instance of there being two daughters and three brothers. The distant kindred inherit in default of residuaries as well as of sharers.

The greater part of the Muhammadan Law of Inheritance is founded upon the following passages of the Kurán :"God hath thus commanded you concerning your children. A male shall have as much as the share of two females; but if they be females only, and above two in number, they shall have two-third parts of what the deceased shall leave; and if there be but one, she shall have the half: and the parents of the deceased shall have each of them a sixth part of what he shall leave, if he have a child; but if he have no child, and his parents be his heirs, then his mother shall have the third part: and if he have brethren, his mother shall have a sixth part, after the legacies which he shall bequeath and his debts be paid. Ye know not whether your parents or your children be of greater use unto you. This is an ordinance from God, and God is knowing and wise. Moreover, ye may claim half of what your wives shall leave, if they have no issue; but, if they have

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issue, then ye shall have the fourth part of what they shall LECTURE leave, after the legacies which they shall bequeath and the debts be paid: they also shall have the fourth part of Prelimiwhat ye shall leave, in case ye have no issue; but if ye have issue, then they shall have the eighth part of what ye shall leave, after the legacies which ye shall bequeath and your debts be paid: and if a man or woman's substance is inherited by a distant relation, and he or she have a brother or sister, each of them two shall have a sixth part of the estate. But if there be more than this number, they shall be equal sharers in the third part, after payment of the legacies which shall be bequeathed, and the debts, without prejudice to the heirs." They will consult thee for thy decision in certain cases; say unto them, 'God giveth you these determinations concerning the more remote degrees of kindred.—If a man die without issue, and have a sister, she shall have the half of what he shall leave; and he shall be heir to her, in case she have no issue; but if there be two sisters, they shall have, between them, two-third parts of what he shall leave and if there be several, brothers and sisters, a male shall have as much as the portion of two females. God declareth unto you, these precepts, lest ye err: and God knoweth all things.'

* Sale's Kurán, Chapter iv.

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The Mosaic Law on the subject of Inheritance is more brief and less comprehensive: "And thou shalt speak unto the children of Israel, saying, 'if a man die, and have no son, then ye shall cause his inheritance to pass unto his daughter; and if he have no daughter, then ye shall give his inheritance unto his brethren. And if he have no brethren, then ye shall give his inheritance unto his father's brethren, and if his father has no brethren, then shall ye give his inheritance unto his kinsman, that is next to him of his family, and he shall possess it: and it shall be unto the children of Israel a statute of judgment, as the Lord commanded Moses." (Numbers, Chap. xxvii, vs. 8-11.) Here, as is justly remarked by Sir William Macnaghten, we find no provision whatever made for the parents, although there are certainly other obvious reasons besides that adduced in the emphatic language of the Kurán, why they should not be excluded.

LECTURE

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Prelimi

nary Remarks.

Accordingly,-a moiety of the deceased's estate devolves on the husband, a fourth on the widow or widows (as the case may be,) a sixth on a single brother or sister by the same mother only, a third on two or more of such brothers and sisters, and a third on the mother if the deceased left no issue of his own or of his son how low soever; but if he (the deceased) left any such issue, then the above portion of the husband is reduced to one-fourth, that of the widow or widows into an eighth, the mother's children are entirely excluded, (they are excluded also by the deceased's father and grandfather,) and the mother's one-third is reduced to one-sixth,-her one-third share is also reduced to one-sixth when the deceased left two brothers and sisters or more by any side whatever;-a moiety devolves on an only daughter, two-thirds devolve on two or more daughters in the event of the deceased leaving no son or sons, but if he left any, then each daughter gets half of what each son is entitled to;-and (in default of the deceased's son and daughter,) a son's only daughter gets a moiety; but when there are two or more son's daughters they collectively get two-thirds in the event of the deceased leaving no son's son; but if he left any such issue, then the son's daughter or daughters get nothing as a sharer or sharers, but each of them, as a residuary, gets half of what each of such males takes.

The son's daughter or daughters are not, however, totally excluded by a single daughter of the deceased, but are entitled to one-sixth as the remainder of the two-thirds (the highest portion ordained for females to take as sharers). When, however, there exist two or more daughters of the deceased, then (they themselves having taken two-thirds of the estate,) the son's daughter or daughters get nothing,

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unless there be with them a male in the equal or in a LECTURE lower degree; as in that case each of the son's daughters would get one share and the male two shares of the residue. PreliminIn default of heirs down to a brother, the only sister of the marks. whole blood is entitled to a moiety, two or more of such sisters get two-thirds of the deceased's estate, sisters by the same father only have, in default of full sisters, the same interest as the latter; and where there are but one full sister, and one or more half-sisters by the father, there the half-sister or sisters get only one-sixth, the full sister taking one-half of the deceased's estate. The sisters of both descriptions, as above, are rendered residuaries by their respective brothers, as also by the deceased's own or his son's daughter or daughters. A sixth devolves on the true grandmother or grandmothers in default of the mother. As a sharer, the father gets a sixth, and in the event of the deceased's leaving no son or son's son, but a daughter or daughters with the father, the latter, in addition to his share as above, gets a residuary portion; and on failure of all these, he takes only as a residuary either the whole or a part (as the case may be) of the deceased's estate. As respects his own heritable right, the true grandfather, in default of the father, has the same interest as the latter.

Moreover, it is to be observed,-that, of the above enumerated heirs, the husband, wife, true grandmother, mother, and mother's children are always sharers and never residuaries; that the father and (in his default) the father's father are only sharers in one case, only residuaries in another, and sharers as well as residuaries in a third (as above stated);-that the deceased's daughter, granddaughter (in the male line), his whole sister and half-sister

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LECTURE by the father are sharers when destitute of their own brothers, and, as such, they successively take their legal shares;— Prelimin- that the legal shares of each description of these females are one-half and two-thirds-one-half where there is only one female, and two-thirds when there are two or more (preferably entitled);—that when with an only daughter of the deceased there is a son's daughter or daughters, the former (preferable to the latter) takes one-half, and the latter, only a sixth (as being the remainder of two-thirds, the highest portion allowed to females) ;-that such is also the case of a half-sister or sisters (by the father) with a sister of the whole blood;-that the daughter, son's daughter, whole sister, or half-sister by the father, when with a brother or brothers of her own, loses her character as a sharer, and is rendered, by him or them, a residuary, and, as such, she gets a portion amounting to half of what her each brother takes;-that the son's daughter is excluded by two or more daughters of the deceased, but when there is a male in the same degree with her or in a lower degree, she becomes a residuary, and divides between him and herself the remaining one-third in the proportion of two shares for the male and one share for the female ;-that the full sister, as well as the half-sister by the same father only, when with a daughter or daughters of the deceased himself or of his son, is made a residuary, and takes the residue remaining after the daughter or daughters (as above) has or have taken her or their legal share or shares ;-and that the full sister, when rendered a residuary by the deceased's own daughter, or his son's daughter, excludes not only the halfsister but also the half-brother by the same father.*

* Vide Principles, v-xix, and the annotations, &c., relative thereto.