Can the executor immediately take possession of a specific endowed asset when the estate includes debts or absent property?
General Chapter
Al-Mughni
Book of Bequests
Primary text
The executor must not take possession of the specific endowed asset prior to the return of the absent property or the settlement of the debt. This is because the asset might perish, preventing the execution of the full bequest. The correct ruling is that the legatee is entitled to one-third of the specific asset, as this right is established and must be delivered to prevent delaying the benefit, similar to if the deceased had left only that asset. The evidence supports this: if the remainder of the estate perishes, the one-third of the specific asset must still be delivered to the executor; the perishing of other assets does not negate the established right to the bequest in the defined portion, even if the heirs receive nothing, just as if the deceased had forgiven a debt owed by an insolvent person.
Supporting text
Some scholars, following the apparent view of Al-Kharaqi, suggest the executor is entitled to one-third of the specific asset immediately. Another view states nothing should be given initially because the heirs share in the entire estate, and nothing accrues to the legatee until the heirs receive something, which they have not yet received. This latter view aligns with a position held by some Shafi'i school adherents.