What is the ruling if heirs refuse to release the third of the estate specified in the bequest?
General Chapter
Al-Mughni
Book of Bequests
Primary text
When a person bequeaths the administration of one-third of their estate to an executor, and the heirs refuse to release that third from their possession, there are two narrated positions. The first view states that the entirety of the bequest's third must be paid to the legatee from what the executor currently holds. This is narrated by Abu Talib, based on the reasoning that the legatee's right is attached to the fractions of the entire estate, thus allowing payment from what the executor possesses, similar to paying a portion to one heir.
Supporting text
The second view, narrated by Abu Al-Harith, dictates that the executor should pay the legatee one-third of what he holds, but should not give the heirs anything from his possession until they themselves extract the third from their own holdings. This is analogized to a creditor who, even if the debtor possesses assets, cannot unilaterally seize them from the debtor's possession.