The property of a deceased Muslim is applicable, in the first place, to the payment of his funeral expenses; secondly, to the discharge of his debts; and, thirdly, to the payment of legacies as far as one-third of the residue. The remaining two-thirds, with so much of the third as is not absorbed by legacies are the patrimony of the heirs. A Muḥammadan is therefore disabled from disposing of more than a third of his property by will. (See As-Sirājīyah.)
The clear residue of the estate after the payment of funeral expenses, debts, and legacies, descends to the heirs; and among these the first are persons for whom the law has provided certain specific shares or portions, and who are thence denominated Sharers, or ẕawū ʾl-furūẓ.
In most cases there must be a residue after the shares have been satisfied; and this passes to another class of persons who from that circumstance may be termed Residuaries, or ʿaṣabah.
It can seldom happen that the deceased should have no individual connected with him who would fall under these two classes; but to guard against this possible contingency, the law has provided another class of persons, who, though many of them may be nearly related to the deceased, by reason of their remote position with respect to the inheritance, have been denominated Distant kindred, or ẕawū ʾl-arḥām.
“As a general rule,” says Mr. Ameer Ali, “the law of succession, both among the Shiahs (Shīʿahs) and the Sunnis, proceeds on the assumption of intestacy. During his lifetime a Mussulman has absolute power over his property, whether it is ancestral or self-acquired, or whether it is real or personal. He may dispose of it in whatever way he likes. But such dispositions in order to be valid and effective, are required to have operation given to them during the lifetime of the owner. If a gift be made, the subject matter of the gift must be made over to the donee during the lifetime of the donor; he must, in fact, divest himself of all proprietary rights in it, and place the donee in possession. To make the operation of the gift dependent upon the donor’s death, would invalidate the donation. So also in the case of endowments for charitable or religious purposes. A disposition in favour of a charity, in order to be valid, should be accompanied by the complete divestment of all proprietary rights. As regards testamentary dispositions, the power is limited to one-third of the property, provided it is not in favour of one who is entitled to share in the inheritance. For example, the proprietor may devise by will one-third of his property to a stranger; should the devise, however, relate to more than one-third, or should it be in favour of an heir, it would be invalid.
“This restriction on the testamentary powers of a Mussulman, which is not without analogy in some of the Western systems, leads to the consequence that, as far as the major portion of the estate and effects of a deceased propositus is concerned, the distribution takes place as if he had died intestate.
“Intestacy is accordingly the general rule among the Mussulmans; and as almost in every case there are more heirs than one entitled to share in the inheritance of the deceased, it is important to bear in mind the points of contact as well as of divergence between the Shiah and the Sunni schools.
“As regards the points of contact, it may be stated generally that both the Sunnis and the Shiahs are agreed on the principle by which the individuals who are entitled to an inheritance in the estate of the deceased can be distinguished from those who have no right. For example, a Mussulman upon his death, may leave behind him a numerous body of relations. In the absence of certain determinate rules, it would be extremely difficult to distinguish between the inheriting and the non-inheriting relations. In order to obviate this difficulty and to render it easy to distinguish between the two classes of heirs, it is recognized by both the schools as a general rule, and one capable of universal application, that when a deceased Mussulman leaves behind him two relations, one of whom is connected with him through the other, the former shall not succeed whilst the intermediate person is alive. For example, if a person on his death leave behind him a son and that son’s son, this latter will not succeed to his grandfather’s estate while his father is alive. The other rule, which is also framed with the object of discovering the heirs of a deceased individual, is adopted with some modification by the two schools. For example, on the succession of male agnates, the Sunnis prefer the nearer in degree to the more remote, whilst the Shiahs apply the rule of nearness or propinquity to all cases, without distinction of class or sex. If a person die leaving behind him a brother’s son, and a brother’s grandson, and his own daughter’s son, among the Sunnis, the brother’s son being a male agnate and nearer to the deceased than the brother’s grandson, takes the inheritance in preference to the others; whilst among the Shiahs, the daughter’s son, being nearer in blood, would exclude the others.” (Personal Law, by Ameer Ali, p. 41.)
The law of inheritance, even according to Muslim doctors of law, is acknowledged to be an exceedingly difficult object of study; it will, therefore, be impossible to follow it out in all its intricacies, but we give a carefully-drawn table by Mr. A. Ramsey, on the Sunnī law, and a more simple one on Shīʿah inheritance by Mr. Ameer Ali.
I.—SHARERS.