the number into which it is necessary to make the • estate, and the sum of each creditor's claim must be considered as his share. For instance, supposing the debt of one creditor to amount to 16 rupees, of another to 5, and of another to 3, and the debtor to have left property to the amount of 21 rupees. By observing the same process as that laid down in principle (109), it will be found that the creditor to whom the debt of 16 rupees was due, is entitled to 14 rupees, the creditor of 5 rupees to 4 rupees 6 annas, and the creditor of 3 rupees to 2 rupees 10 annas.

SECTION XII.

Of Partition.

where conve.

112. Where two persons claim partition of an estate Property which has devolved on them by inheritance, it should be niently partigranted; and so also where one heir claims it, provided ble should be the property admit of separation without detriment to among the its utility.

distributed

heirs at the desire of one

or more.

113. But where the property cannot be separated In other cases without detriment to its several parts, the consent of all

the coheirs is requisite; so also where the estate consists of articles of different species.

the distribution should

not take place with. out the con

sent of all.

114. On the occasion of a partition, the property Mode of dis. (where it does not consist of money) should be distri- tribution. buted into several distinct shares, corresponding with the portions of the coheirs; each share should be appraised, and then recourse should be had to drawing of lots.

115. Another common method of partition is by usu- Of partition by usufruct. fruct, where each heir enjoys the use or the profits of the property by rotation; but this method is subordinate to actual partition and where one coheir demands separation, and the other a division of the usufruct only, the former claim is entitled to preference in all practicable cases.

F

Three sources of the right of Inheritance.

Enumeration of them.

Heirs by consanguinity consist of

CHAPTER II.

OF INHERITANCE ACCORDING TO THE IMAMEEYA, OR
SCHIA DOCTRINE.

1. According to the tenets of this Sect, the right of inheritance proceeds from three different sources.

2. First, it accrues by virtue of consanguinity. Secondly, by virtue of marriage. Thirdly, by virtue of Willa.*

3. There are three degrees of heirs who succeed by virtue of consanguinity; and so long as there is any one three degrees. of the first degree, even though a female, none of the second degree can inherit; and so long as there is any one of the second degree, none of the third can inherit.

Enumeration of heirs of the first degree.

4. The first degree comprises the parents, and the children, and grandchildren, how low in descent soever, the nearer of whom exclude the more distant. Both parents, or one of them inherit together with a child, a Their relative grandchild, or a greatgrandchild; but a grandchild does rights. not inherit together with a child, nor a greatgrandchild together with a grandchild.

Subdivision

of.

5. This degree is divided into two classes; the roots which are limited, and the branches which are unlimited. The former are the parents who are not represented by their parents; the latter are the children who are repre

In a note to his translation of the Hedaya, Mr. Hamilton observes, that "there is no single word in our language, fully expressive of this term. The shortest definition of it is," the relation between the master (of patron) and his Freedman." but even this does not express the whole meaning." Had he proceeded to state" and the relation between two persons who had made a reciprocal testamentary contract,” the definition might have been more complete.

sented by their children. An individual of one class does not exclude an individual of the other, though his relation to the deceased be more proximate; but the individuals of either class exclude each other in proportion to their proximity.

6. No claimant has a title to inherit with children, Of coheirs with children. but the parents, or the husband and wife.

7. The children of sons take the portions of sons, and of the sons' and daughters' the children of daughters take the portions of daugh- offspring. ters, however low in descent.

8. The second degree comprises the grandfather, and of the second degree. grandmother, and other ancestors, and brothers, and sisters, and their descendants, however low in descent, the nearer of whom exclude the more distant. The greatgrandfather cannot inherit together with a grandfather or a grandmother; and the son of a brother can- Their relative not inherit with a brother or a sister; and the grandson rights.

of a brother cannot inherit with the son of a brother, or

with the son of a sister.

9. This degree again is divided into two classes; the Subdivision of. grand-parents and other ancestors, and the brethren and their descendants. Both these classes are unlimited, and their representatives in the ascending and descending line, may be extended ad infinitum. An individual of the one class does not exclude an individual of the other, though his relation to the deceased be more proximate; but the individuals of either class exclude each other, in proportion to their proximity.

10. The third degree comprises the paternal and ma- Of the third ternal uncles and aunts and their descendants, the near- degree. er of whom exclude the more distant. The son of a

rights.

Their relative paternal uncle cannot inherit with a paternal uncle, or a paternal aunt, nor the son of a maternal uncle with a maternal uncle, or a maternal aunt.

Additional rules.

Enumeration of other heirs, of the third degree.

General rule

relative to the

blood.

11. This degree is unlimited in the ascending and descending line, and their representatives may be extended ad infinitum; but so long as there is a single aunt or uncle of the whole blood, the descendants of such persons cannot inherit. Uncles and aunts all share together; except some be of the half and others of the whole blood. A paternal uncle by the same father only, is excluded by a paternal uncle by the same father and mother; and the son of a paternal uncle by the whole blood excludes a paternal uncle of the half blood.

12. In default of all the heirs above enumerated, the paternal and maternal uncles and aunts of the father and mother succeed; and in their default their descendants, to the remotest generation, according to their degree of proximity to the deceased. In default of all those heirs, the paternal and maternal uncles and aunts of the grandparents and greatgrandparents inherit, according to their degree of proximity to the deceased.*

13. It is a general rule that the individuals of the whole half and whole blood exclude those of the half blood, who are of the same rank; but this rule does not apply to individuals of different ranks. For instance, a brother or sister of the whole blood excludes a brother or sister of the half

Exception.

There seems to be some similarity between the order of succession here laid down, and that prescribed in the English Law for taking out Letters of administration: "In the first place the children, or on failure of the children, the parents of the deceased, are entitled to the admini stration; both which indeed are in the first degree; but with us the chil. dren are allowed the preference. Then follow brothers, grandfathers, uncles or nephews, (and the females of each class respectively), and lastly, cousins. The half blood is admitted to the administration as well as the whole, for they are of the kindred of the Intestate." Blackstone's Commentaries, vol. 2 Page 504,

blood: a son of the brother of the whole blood, however, Example. does not exclude a brother of the half blood, because they belong to different ranks: but he would exclude the son of a half brother who is of the same rank; so also an uncle of the whole blood does not exclude a brother of the half blood, though he does an uncle of the half blood.

14. The principle of the whole blood excluding the Additional half blood, is confined also to the same rank, among rules. collaterals: for instance, generally a nephew or niece whose father was of the whole blood, does not exclude his or her uncle or aunt of the half blood; except in the case of there being a son of a paternal uncle of the whole Exception. blood, and a paternal uncle of the half blood by the same father only, the latter of whom is excluded by the former.

rule where the

15. This principle of exclusion does not extend to Additional uncles and aunts being of different sides of relation sides of relati to the deceased; for instance, a paternal uncle or aunt on differ. of the whole blood, does not exclude a maternal uncle or aunt of the half blood; but a paternal uncle or aunt of the whole blood, excludes a paternal uncle or aunt of And where the half blood, and so likewise a maternal uncle or aunt they are the of the whole blood, excludes a maternal uncle or aunt of the half blood.

same.

the sides dif

16. If a man leave a paternal uncle of the half blood, Additional and a maternal aunt of the whole blood, the former will rule where take two-thirds, in virtue of his claiming through the fer. father, and the latter one-third, in virtue of her claiming through the mother; as the property would have been divided between the parents in that proportion, had they been the claimants instead of the uncle and aunt.