What is the ruling if the heirs are given the option regarding the specific bequest when the estate includes debts or absent property?
General Chapter
Al-Mughni
Book of Bequests
Primary text
The position of Malik that the heirs are given the choice between handing over the specifically bequeathed item or substituting it with a bequest equivalent to one-third of the total estate is incorrect. This ruling is invalid because it leads to the legatee taking the specific item exclusively, potentially leaving the heirs with nothing if the remaining assets perish before reaching them. The correct application is that the bequest of a specified item not exceeding one-third of the estate to a non-heir is binding, similar to a bequest of an undivided share (musha' in the estate).
Supporting text
The objection to Malik's view is that granting the legatee a right to a specific portion (one-third of the total value) entails an undivided share (*ishahah*) and invalidates the specific item designated by the testator. The testator's designation of a specific item cannot be arbitrarily transferred to a general share, nor can a general share bequest be transferred to a specific item.