What happens to the bequest if the entire estate except the specifically bequeathed item perishes before or after the testator's death?
General Chapter
Al-Mughni
Book of Bequests
Primary text
The entire scholarly community known to us is in agreement that if the specifically bequeathed item perishes before or after the death of the testator, the legatee receives nothing. This is affirmed by Ibn al-Mundhir, stating that the consensus among scholars whose opinions are retained is that if something is bequeathed and it perishes, the legatee receives nothing from the remainder of the deceased's estate. This is because the legatee's right is established solely by the bequest, which was tied to a specific item that is now gone, thus extinguishing the right, just as if it perished while in the legatee's possession. The remaining estate held by the heirs is not their liability because it came into their possession without their action or negligence.
Supporting text
The legatee receives the specifically bequeathed item if the entire estate, excluding it, perishes, because the heirs' right was not attached to that specific item designated for the legatee. The legatee may take it without their consent or permission, meaning the legatee's right supersedes the general rights of the heirs in the remainder of the estate, and vice versa. If one party's share perishes, they do not share in the right of the other, analogous to a situation where the perishing occurs after the legatee has taken possession, or after the heirs have divided the estate and one heir's portion perishes. Ahmad ruled that if a person leaves two hundred dinars and a slave valued at one hundred, and bequeaths the slave to a man, and the dinars are stolen after death, the slave belongs to the legatee.