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CHAPTER VI.

OF WILLS.

and real wills

1. There is no preference shown to a written over a Nuncupative nuncupative will, and they are entitled to equal weight, equally valid. whether the property which is the subject of the will be

real or personal.

2. Legacies cannot be made to a larger amount than of legacies. one-third of the testator's estate, without the consent of the heirs.

3. A legacy cannot be left to one of the heirs without To an heir. the consent of the rest.

4. There is this difference between the property which Distinction is the subject of inheritance and that which is the sub- between property acquirject of legacy. The former becomes the property of the ed by inheri tance and by heir by the mere operation of law; the latter does not will. become the property of the legatee until his consent shall have been obtained either expressly or impliedly.

5. The payment of legacies to a legal amount pre- Legacies precedes the satisfaction of claims of inheritance.

cede claims
of inheritance.

6. All the debts due by the testator must be liqui- And debts dated before the legacies can be claimed.

precede lega. cies.

7. An acknowledgment of debt in favour of an heir Acknowledg on a deathbed resembles a legacy; inasmuch as it does not avail for more than a third of the estate.

ment of a debt to an heir.

8. It is not necessary that the subject of the legacy of the subject of a legacy. should exist at the time of the execution of the will. It

Of illegal provisions.

Special rule relative to legatees.

A legacy may be retracted

by implicati

on.

Rule in case of excessive legacies.

And of differ ent legacies

person.

is sufficient for its validity that it should be in existence at the time of the death of the testator.

9. The general validity of a will is not affected by its containing illegal provisions, but it will be carried into execution as far as it may be consistent with law.

10. A person not being an heir at the time of the execution of the will, but becoming one previously to the testator's death, cannot take the legacy left to him by such will; but a person being an heir at the time of the execution, and becoming excluded previously to the testator's death, can take the legacy left to him by such will.

11. If a man bequeath property to one person, and subsequently make a bequest of the same property to another individual, the first bequest is annulled; so also if he sell or give the legacy to any other individual; even though it may have reverted to his possession bes fore his death, as these acts amount to a retractation of the legacy.

12. Where a testator bequeaths more than he legally can to several legatees, and the heirs refuse to confirm his disposition, a proportionate abatement must be made in all the legacies.

13. Where a legacy is left to an individual, and subs to the same sequently a larger legacy to the same individual, the larger legacy will take effect; but where the larger legacy was prior to the smaller one, the latter only will take effect.

And of the

14. A legacy being left to two persons indiscriminatesame legacy ly, if one of them die before the legacy is payable, the

duals.

whole will go to the survivor; but if half was left to to two indivieach of them, the survivor will get only half, and the remaining moiety will devolve on the heirs; so also in the case of an heir and a stranger being left joint legatees.

15. Where there is no executor appointed, the father Of Executors. or the grandfather may act as executor, or in their default their executors.

16. A Moohummudan should not appoint a person of Should be a different persuasion to be his executor, and such ap- Moohummu. pointment is liable to be annulled by the ruling power.

dans.

17. Executors having once accepted cannot subse- Cannot requently decline the trust.

sign.

18. Where there are two executors, it is not com- Rule where petent to one of them to act singly, except in cases of there are two. necessity, and where benefit to the estate must certainly

accrue.

Definition of marriage.

Essentials of.

Conditions of.

Competency of witnesses to.

Special rules regarding them.

Proposal may

be made by a

CHAPTER VII. ·

OF MARRIAGE, DOWER, DIVORCE, AND PARENTAGE

1. Marriage is defined to be a contract founded on the intention of legalizing generation.

2. Proposal and consent are essential to a contract of marriage.

3. The conditions are discretion, puberty, and freedom of the contracting parties. In the absence of the first condition, the contract is void ab initio; for a marriage cannot be contracted by an infant without discretion, nor by a lunatic. In the absence of the two latter conditions, the contract is voidable; for the validity of marriages contracted by discreet minors, or slaves, is suspensive on the consent of their guardians or masters. It is also a condition, that there should be no legal incapacity on the part of the woman; that each party should know the agreement of the other; that there should be witnesses to the contract; and that the proposal and acceptance should be made at the same time. and place.

4. There are only four requisites to the competency of witnesses to a marriage contract; namely, freedom, discretion, puberty and profession of the Moosulmaun faith.

5. Objections as to character and relation, do not apply to witnesses in a contract of marriage, as they do in other contracts.

6. A proposal may be made by means of agency, or gency, or by by letter; provided there are witnesses to the receipt of

the message or letter, and to the consent on the part of letter. the person to whom it was addressed.

7. The effect of a contract of marriage is to legalize Effect of the the mutual enjoyment of the parties; to place the wife contract. under the dominion of the husband; to confer on her the right of dower, maintenance,* and habitation; to create, between the parties, prohibited degrees of relation and reciprocal rights of inheritance; to enforce equality of behaviour towards all his wives on the part of the husband, and obedience on the part of the wife, and to invest the husband with a power of correction in cases of disobedience.

8. A freeman may have four wives, but a slave can Number of have two only.

wives.

of prohibited

9. A man may not marry his mother, nor his grand- Enumeration mother, nor his mother-in-law, nor his step-mother, nor relations. his step-grand-mother, nor his daughter, nor his granddaughter, nor his daughter-in-law, nor his grand-daughter-in-law, nor his step-daughter, nor his sister, nor his foster-sister, nor his niece, nor his aunt, nor his nurse.

10. Nor is it lawful for a man to be married at the Additional prohibitions, same time to any two women who stand in such a degree of relation to each other, as, that, if one of them had been a male, they could not have intermarried.

and slaves.

11. Marriage cannot be contracted with a person of freemen who is the slave of the party, but the union of a freeman with a slave, not being his property, with the consent

The right of a wife to maintenance is expressly recognized; so much so, that if the husband be absent and have not made any provision for his wife, the Law will cause it to be made out of his property; and in case of divorce, the wife is entitled to maintenance during the period of her probation.

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