N Chapter Two RESIDUARY HEIRS Art. 124. Residuaries. — Any residue left after the dis- tribution of the shares of the sharers shall be partitioned among the residuaries in accordance with the following arti- cles. An heir may succeed as residuary in his own right (asa- ba-bin-nafs), in another’s right (asba-bil-ghair), or together with another (asaba-ma’al-ghair). Notes/Comments Sources of Article Quran IV:33: “To (. benefit) everyone, we have appointed shares and heirs to property left by parents and relatives ( ‘agrabun).: Hadith; Hadrat Abdullah Abbas reported that the Prophet (P.B.U.H) said: “Give the fixed shares in the inheritance to the sharers whatever remains thereafter is for the nearest male related to the deceased.”* Tjma: there is a unanimity of Ummah on the point that whatever remains after the distribution of shares of the sharers, the same shall belong to the closet asbah.* Muslim Law jurisprudence (Fiqh). Meaning of residuaries (Asabah) — The literal meaning of the Arabic word Asaba is “agnate.” As a legal terminology and applied to the law on succession, agnate heir therefore, is an heir who is related to the deceased through a male link, as for example, the son’s son, or the son’s daughter, the father or the father’s father, ete,, as distinguished from cognate the latter being that person who is related to the deceased through a female link, as for example, the daughter’s daughter, the mother’s mother or the father’s mother’s TTtis narrated from Hadrat Abbas that “Mawali” used in the verse mean “asa- ba’ (residuovicay Imam Jassas, Commentary, Akkam Al-Quran, Vo TT p. 228; alee A ee a oe RH.) Jalalyn, Cairo. 158 A. p. 172 (on the margin of Al-Baidawi). an "Mishkat-ul-Masabih, Al Hadiz, p39) *Allama Ibn Hajr Al-Asgalani, Fath al-Bari, Vol. XII, p. 1. 715OF MUSLIM PERSONAL LAWS THE CODE “ARIES ON DENCE & SPECIAL PROCEDURE COMMENT: 7 OF THE PHILIPPINES WITH JURISPRU: the residuary heirs (Asaba-ul-mirath) who are due after the fixed sharers (Ashab-ul-furud) ae from the estate left by a deceased relative, father They are | entitled to the resi given their fixed shares Kinds of Residuaries (Ashab-ul-Mirath). — The Asaba-y). Mirath are of three kinds, namely: 1. saba-bin-nafs are those male relatives of the deceased who are asaba in their own right; 2. Asaba-bil-ghair who is a female heir who, on account of the presence of another male heir, becomes an asaba in the right of her male co-heir and partner in being an asaba; and Asaba-ma’al-ghair is a female heir, who on account of the presence of another female heir, becomes an asaba without necessarily making that other heir her partner as such. According to the four Sunni schools, there are three types of nasabi residuaries. A residuary by himself (asabah bi napsha), a residuary through another (asabah bi ghayrida) and a residuary along with another (asaba ma ghayrida). The asaba consist of one male agnate and four female agnates (daughter, son’s daughter how low so ever, full sister, consanguine [sister]) a Quranic innovation. The following Articles 125, 126 and 127, specifically give the asaba (residuaries) under each of those three general classification. Art. 125. Residuaries in their own Right. — The following persons are residuaries in their own right: (a) Male descendants of the decedent in the direct line, however distant in degree; (b) Male ascendants of the decedent in the direct line, however distant in degree; (c) Full-blood or consanguine brothers of the decedent and their male descendants, however distant in degree; and (d) Full-blood or consanguine ¢ paternal uncles of the front and their male descendants, however distant iD e. ‘A.A. Fyzee, Outline of Muh. Law; citing Tyabji, 610 sqq. Mulla. 50 sa9- haWILLS AN) BOOK THRE Title It — iD SUCCESSION EE — SUCCESSION Legal Succession 17 Notes/Comments Sources of Article. — shares, and of what remain: tive (Abu Daud); Ijma; Mus preceding article.) The Male Agnates “Asaba”, pin-nafs) are agnatic heirs who are m; through male descent on the father’s is traced exclusively through males; paternal kinsman. They were classified as the principal heirs during the pre-Islamic Arabia based on the pre-Islamic Arabs practice that the right to inheritance devolves upon those who go to battle and defend the tribe. During the Islamic period, they continued as agnatic heirs under the Sunnite law, who gets entitled to the residues after the Quaranic fixed sharers (ashab-ul-furud) are given their shares (farida; plural faraid). They are the decedent’s male relative (agnates) into whose line of relationships to the decedent no female enter, and as such, he is independent of others in his right to inherit as a residuary, and that he is a residuary in all cases and situation. They are the following: son, son’s son how low so ever, the father, the father’s father how high so ever, the full or consanguine brothers and their male descendants, how low so ever; and the full or consanguine paternal uncles and their male descendant’s how low so ever. If some of them exist with others, the son will supersede the father, in the sense that the father will take his fard (share) which is one-sixth and the son will take the remainder as a residuary. As Hadith give share’s their respective 8, the first in the order is a male rela- lim Law Jurisprudence. (See sources to — The male agnate (asaba- ale relatives of a deceased or side; a relative whose kinship According to the four Sunni schools the son’s son will similarly Supersede the father, and the father will supersede the paternal grandfathers. They differ regarding the paternal grandfather as to whether he will supersede the brothers in inheritance or if they inherit jointly with him, so that all of them are considered as belonging to the same class. Abu Hanifah observes: The grandfather will supersede the brother and they will not inherit anything along, with him. The Imani, the Shafi’i and the Maliki schools state: They Will inherit with him because they belong to his class. Among the residuaries, those related from both sides will su- Persede those related from only one side. Hence, a full brother will SUpersede a consanguine brother and the full brother’s son will su- Persede a consanguine brother’s son similarly in the case of pater- Nal uncles the degree of their nearness (to the decedent) is taken718 COMMENTARIES ON THE CODE OF MUSLIM PERSONAL Laws OF THE PHILIPPINES WITH JURISPRUDENCE & SPECIAL PROCEDURE into consideration; and the nearest is preferred. Therefore, the a dent’s paternal uncle supersede his father’s paternal uncle, - re in turn will supersede the grandfather’s paternal uncle. he Order of Residuaries By Themselves (Asaba-bin-nafa) — The Asaba-bin-nafs inherit in the following orders: (1) Son; (2) Son’s son, how low so ever; (3) Father; (4) Paternal grandfather, how high so ever; (5) Full brother; (6) Half-brother by the father; (7) Paternal uncles; (8) Son of full brother; (9) Son of half-brother by the father; (10) Father’s full brother; (11) Fatheyr’s half-brother by the grandfather; (12) Son of the full paternal uncle; (13) Son of the consanguine paternal uncle.‘ The male descendants how low so ever in the absence of the decedent’s parents and spouse, a son is entitled to the whole estate, and similarly two or more sons. There is a consensus that a son’s son is like a son in the son’s absence.’ Full-Blood or Consanguine Brothers of the Decedent and their Male Descendant How Distant in Degree. — Brother's are of three kinds: (1) Brother’s germane or full brothers who are of the same parents; (2) Consanguine brothers or half brother who are of the same father; and (3) Uterine brothers, or half-brothers who are of the same mother. The full blood or the consanguine brother, or their male descendant how low so ever whenever under the circumstance®: SAl-Tawhid, Vol. VII, No. 2, p. 84. “M.J. Maghniyyah, Five Schools of Muslim Law, pp. 476-7. M.J. Maghniyyah, Five Schools of Muslim Law, p. 503.WILLS AND suCCEssr ON 719 BOOK THREE — sui ae CCESSION Legal Succession succeeds as & residuary, alone shall get th i idne: more, they shall divide th Bi e entire residue; two or © residue per capita or equally. However, the uterine brother, is not a residua: hs A ry, but a sharer under Article 131(d) of the Code, who in the absence of a descendant, father, paternal grandfather, full brother or sister of the decedent is entitled to one-sixth share, if alone, or one-third per capita if there are two or more of them. Full Blood or Consanguine Uncles of the Decedent and their Male Descendants How Low So Ever. — The full blood or consanguine uncles or their male descendants how low so ever whenever under the circumstances, succeeds alone, shall get the whole residue, two or more of them, they shall divide the residue per capita, or equally. As regard the uterine uncle, he is not a residuary, but a distant kindred under Article 131(d) of the Code. Art. 126. Residuaries in another’s right. — The following persons shall succeed as residuaries in another’s right: (a) Daughters surviving with the son of the decedent; (b) Son’s daughters surviving with their own brothers; (c) Full sisters surviving with their full brothers; and (d) Consanguine sisters surviving with their consan- guine brothers. Notes/Comments Sources of Article. Quran: IV:11; “Your children are nearest to you in benefit;” Quran:IV:1 76; “Allah directs (thus) about those who leave no descendants or ascendants as heirs x x x (Between them); If there are brothers and sisters (1 they share) the male having twice the share of the female.” Quran: IV:12; “If a man or woman whose inheritance in question has left neither ascendants nor descendants, has left a rother and a sister, each one of the two gets a sixth; but if more than wo, they share in the third.” Muslim Law Jurisprudence. Residuaries in Another’s Right (Asaba-bil-Ghair), — Asaba-bil-ghair is that female relative of the deceased whose position “ause of the presence of a male heir is changed from that of a fixedON THE CODE OF MUSLIM PERSONAL Laws 720 COMMENTARIES Or yRISPRUDENCE & SPECIAL PROCED Rp OF THE PHILIPPINES to that of an asaba (residuary) and the may, Id change the former’s position from that |-furud) to residuaries in another's right sharer (ashab-ul-furud) heirs whose presence woul of a fixed sharer (ashab-ul (asaba-bil-ghair), are as follows: ters surviving with the son of the decedent, 1. The daught 2. Sons’ daughters surviving with their brothers; 3. Fullsisters surviving with their full brothers; and 4. Consanguine sister surviving with their consanguine brothers. It is known that all the above-mentioned female heirs inherit as sharers in the absence of the brother. One of them is entitled to a half, and of more, to two thirds, and if they have a brother they inherit as residuaries according to the four Sunni schools, but not if they are alone, in which later case, she will share the inheritance with him, the male receiving twice the share of females. Share of Residue by the Asaba-bil-Ghair. — If the female resi-duaries co-existing with the males are of the same degree, each female shall take half the share of the male. Illustrative Examples 1. For example, if a person dies and among the heirs left are his two full brothers and three full sisters who are asaba-bil-ghair (residuaries in another’s right). They share in the residue as ce for the male, 2, 2; and for the females, 1,1,1; a total of units. 2 It does not follow that male residuaries would render their sister residuaries in all cases. It is only in cases where the female heir is herself a “sharer” that she would become a residuary when co-existing with a male residuary. For example, if a man dies and is survived by a widow, paternal uncle and an aunt. The aunt not being a sharer takes nothing. The aunt is not entitled to the estate of her deceased nephew. Her brother (the uncle) takes the entire remaining residue after allotment of the share of the widow. 3. o there is a full-sister, co-existing with consanguine rothers and sisters, the full sister takes 1/2 and the remaininé ———____ *Al-Tawhid, Vol. VII, No. 20, p. 88.WILLS AND SUCCEs: SION a oe THREE — SUCCESSION itle IT — Legal Succession residue is divided between the onsanguine brothers and sisters on a two to one ratio, . 4, When there are several full-sisters, they will take 2/3 and the remainder, if the case is the same as above, it will be divided in like manner between the consanguine brothers and sisters on a ratio of two to one. 5, If the decedent left a full sister and a consanguine sister, the full sister takes 1/6 and the residue is divided among them pro- rata. 6. Whenthere are two or more full sisters and several consanguine sisters but without any consanguine brother, the full sisters takes nothing (from the residue). Art. 127. Residuaries together with another. — Full-blood. or consanguine sisters surviving with daughters of the dece- dent or with the son’s daughters, however distant in degree from the decedent, are residuaries together with another. Notes/Comments Sources of Article. — Hadith; Make the real sisters joined with daughters the Asbat (residuaries).” Muslim Law Jurisprudence (Figh). Meaning and Kinds of Asaba-Ma’al-Ghair (Residuaries Together with Another). — Asaba-Ma’al-Ghair is that female relative of the deceased whose position, because of the presence of another female relative, is changed from that of a sharer (ashab-ul- furud) to that of a residuary entitled to the residue of the decedent’s estate. She becomes therefore an asaba when she co-exist with that other female heir. There are two classes of residuaries together with another. They are: 1. Full sisters co-existing with daughter or son’s daughters; and 2 Consanguine sisters co-existing with daughters or son’s daughter or daughters. Share of Residuaries Along with Another. — The full or Con-sanguine sister or sisters that inherit along with a daughter ° son’s daughter are residuaries along with another. If there is no daughter or son’s daughter inheriting along with them, they inherit 88 sharers, but along with the decedent’s daughter or the decedent’sF MUSLIM PERSONAL Laws 0 722. COMMENTARIES ON THE CODE ENCE & SPECIAL PROCEDURE OF THE PHILIPPINES WITH JURISPRUD! son’s daughter they inherit as residuaries, and the daughter °F son’, daughter will take her share and the full or consanguine Sister op sisters will take the remainder, thereby becoming residuaries along with the daughter.® Illustrative Examples The following are illustrative examples of Asaba Ma’al-Ghair, i ’s daughter with ful 1. Ifthe survivors are one daughter or son’ 8 ile consanguine sister, the daughter or son’s daughter takes 1/2 while the full or half sisters gets the residue. 2. When there are several daughters or son’s daughters, they get 2/3 and residue goes to the sister (full or half). 3. When there are several daughters and full sisters co-existing with son’s daughters, the daughters and full sisters exhaust the whole inheritance and son’s daughters get nothing. 4. When there are two daughters, a son’s daughter and a lineal descendant like a son or a son’s son, the two daughters get 2/3. Son’s son take 2/9, being 2/3 of the residue and the son’s daughter takes remaining 1/9. This is a case of correction to conform to the 2:1 ratio sharing of males and females on the same degree. 5. Ifthe decedent leaves a daughter and a several son’s daughters, the daughter takes 1/2 and the son’s daughters take 1/6, and the residue is divided among the daughter and son’s daughter pro-rata (equal sharing). However, if there are two or more daughters, they take 2/3 as their share and the remainder pertains to them under the “Doctrine of Return,” while son’s daughters take nothing. But if there is a male heir, he makes the females (his sisters or cousins) residuaries. The two or more daughters take 2/3 and the remainder goes to the son’s child in proportion to 2 to 1, the share of females is half share of males. : Art. 128. Preference amo: a ce ‘i f mg Residuaries. — Prefere™ among residuaries shall be governed by the following rules. (a) The residuary nearer in de; 1d in d referre to the more remote of the same asa ee °M.J. Maghniyyah, Five Schools of Muslim Law, p. 476.WILLS AND suc Title IT ~ Legal Succession (b) The residuary with full-b) referred to those of the half-blo felationship in the same class; lood relationship shall be od of th a ie same degree of (c) The residuaries of the same cla: () 7 88, de; d blood relationship shall share equally, subject to the ‘rule of ‘the male having a share double that of the female in proper case. Notes/Comments Sources of Article. Quran IV:11: “Your parents or ci in benefits.” Hadith; Ibn Abbas repo: said: “Pay the fixed shares of inhey them. What remains thereafter is hildren (who) are nearest to you ted that the messenger of Allah ritance to the persons entitled to for the nearest male.” (Agreed) Hadith; “Surely kinsman of the same father and mother shall inherit before kinsmen of the same father only,” “And, the uterines among children of the mother shall inherit one another in preference to the children of the father.” (Tirmizi and Ibn Maja)» Rules on Preference among Asaba (Residuaries), — Among the residuaries who are entitled to the residue of the estate after the share of the fixed sharers are satisfied, when there are several of them of different classes preference shall be based on their propinquity or the strength of blood relation or nearness of kinship to the deceased. The rule is: First, to the DEGREE; next, to the STRENGTH OF BLOOD TIE; and third, residuaries of the same class, degree and blood tie shall share EQUALLY. Illustrative Example For instance, a residuary with another (asaba ma’al ghair) when nearer to the deceased than a residuary in his own right (asaba-bin-nafs), shall be preferred over the latter, i.e., a person dies leaving daughter, a full sister and a son of a half brother by the father (consanguine), the daughter takes 1/2 and the sister take the other half although she herself is a residuary with another (with decedent’s daughter), but she is one degree nearer to the decedent than the consanguine brother’s son who is two degrees to the decedent, and stronger in the blood tie.SQDE OF MUSLIM PERSONAL LAWS 2 IMENTARIES ON THE CODE OF 5 PERS iS ne ‘ie PHILIPPINES WITH JURISPRUDENCE & SPECIAL PROCEDURE n dies leaving a full sister, a daughter, a consan, i 2. aes da son’s daughter. The full sister and the decedent, daughter who are residuaries with another ( asaba-ma’al ghair) being of full blood is preferred over the consanguine sister, ang the decedent’s daughter being nearer in degree is preferred to the decedent son’s daughter. The full sister gets 1/2 and the daughter the other half of the bequest. Where there is only a Single Residuary. — The Four Sunnj schools concur that if there is a single residuary without any sharer, he will inherit the whole heritage, and in the presence of a sharer he will take the remainder after the sharer has taken his share, If there is no residuary, according to the Maliki and the Shafi’, schools, the excess will escheat to the bayt-al-mal, and according to the Hanafi and the Hanbali schools it goes to the sharers by way of return (radd), and the estate will not escheat to the bayt-al-mal in the absence of the sharers, residuaries and distant kindred. Art. 129. Reduction of shares. — If the totality of all the shares assigned to each of the sharers exceeds the whole inheritance, the shares shall be reduced proportionately. Notes/Comments Sources of Article. — Ijma al-Shahaba’t (consensus of the Companions of the Prophet). It is reported that during the reign of Caliph Umar Al-Khatab, a case arose in which the shares of the sharers (ashab-ul-furud) namely: The husband, 1/2 of the deceased wife estate with two agnates sister share of 2/3, in its totality exceeded the estate left by the decedent. The matter was refe to the other Shahaba’t (Companions) and a majority consensus was arrived adopting the Doctrine of Increase (Awl) in order to remedy the situation." The Successors (Tabiuns), the Four Imams, Shia Zaidiyah and the jurists in general fully endorsed the doctrine of Awl.“ Muslim Law Jurisprudence. : Meaning of Doctrine of Increase (Al-Awl). — Literally ‘awl” means increase, technically in the law of succession, it is the process whereby when the totality of the shares of all the sharers “MJ, Maghniyyah, Five Schools of Muslim Law, p. 478. “Tanjil-ur-Rahman, C.M.P.L., Vol. Il, p. 551; Yusuf Musa, op. cit. ‘Ibid., p. 554; Al Sarakshi, op. cit., Vol. XXIX, pp. 161-163.WILLS AND SUCCEssI BOOK THREE — SUCCESSION Title Il — Legal Succession 725 r ashab-ul-furud) exceeds the whole inheritance, reducing the value of each share proportionately so as to increase the units shares in order to make the whole units when added up equal the total net estate and thereby meet all the sharer’s share is called al “Awl” (doctrine of Increase). It is so called “Mimbarriya’” (doctrine) because it was answered by Hazrat Ali when he was in the mimbar pulpit.” gunnis Doctrines Awl is applied where the shares exceed the heritage, such as the decedent leaves behind a wife, parents and two daughters (the share being, the wife’s 1/8, the parent’s 1/3 [1/6 and 1/6 = 2/3]), the two daughters 2/3; here the estate falls short of the sum of 1/8, 1/3 and 2/3 (27/24). Similarly, if a woman dies and leaves behind her husband and two agnate sisters, the share of the husband is 1/2, and of the two sisters 2/3; here the estate falls short of the sum of 2/3 (7/6). Awl occurs only if the husband or the wife is present. The four Sunni schools accept the doctrine of “awl,” the rule that all the shares will be diminished proportionately, exactly like the creditors claims when the assets fall short of meeting them. Hence, if the heirs are wife, parents and two daughters, according to these schools it will be an instance of “awl.” The obligation is met by dividing the heritage into 27 parts, though it earlier comprised 24 parts. The wife will take 3/27 (i.e., her share becomes 1/9 instead of 1/8), the parents take 8/27 and her daughter 16/27. The four schools argue in favour of the validity of “awl” and the reduction of all the shares by citing the precedent of a woman who died during the reign of the second Caliph, Umar, leaving behind husband and two agnate sisters. The Caliph gathered the Companions and said; “The shares determined by God for the husband and the two sisters are a half and two-thirds respectively. Now if I start with the husband’s share, the two-thirds will not remain for the two sisters, and if I start with the two sisters, the half will not remain for the husband. So give me advice.” Some advised him to follow awl by diminishing all the shares Proportionately, while Ibn Abbas vehemently opposed it. But Umar id not accept his view and acted according to the opinion of others, telling the heirs: “I do not see any better way regarding this estate but to distribute it amongst you in proportion to your shares.” “A Mah., US., Jung, Adm. of Justice in Islam, p. 26.726 OF THE PHILIPPINES WITH Hence, Umar wi the Sunni schoo that when there are severa. shares when added up amou! quantity of the heritable estate. I arising, the Sunni | situation by making a propo! shares by increasing the the root of the problem. (al Awl), a technical expression used by Sunni lawyers to signify a proportionate increas yielding the requisite number of shar the respective s their common denomina’ numerator retaining howe sharer’s fixed shares, but which in effect reducing their respective share. The root of the problem (see p. 758 on how to get RP) and the numbers to which they may be increased to, are as follows: 1 full sisters. Compute and give their respective shares. and the two (2) full sisters is 2/3. *M.J. Maghniyyah, Five Schools of Muslim Law, pp. 486-487. THE CODE OF MUSLIM PERSONAL Laws | 'TARIES ON COMMENT JURISPRUDENCE & SPECIAL PROCEDURE as the first person to apply awl to the shares and al] 1s followed him.” n of Awl. — It may happen sometime, ] sharers co-existing, their fractional nt to a great more than the integral in order to meet the difficulty thus jawyers have adopted a method of solving the rtionate abatement in all the sharers eir common factor or divisor or what is calleq This method is known as Doctrine of Increase Method of Applicatio! e in the common divisor for the purpose of es. The technique is to reduce hare of each sharer. It is arrived at by increasing tor so as to make it equal to the sum of the ver, the individual numerators of the ‘ ‘the root of the problem is 6, it may be increased to 7, 8, 9, and If the root of the problem is 12, it may be increased to 13, 15 and 17; and If the root of the problem is 24, it may be increased to 27. Illustrative Examples: Increase from 6 to 7. Problem: A wife died leaving as heirs her husband and two (2) Solution: The prescribed fractional share of the husband is 1/2 The root of the problem is No. 6 (2x 3 = 6). Thus: 6 divided by 2 = 3 share of the husband; 2/8 of 6 = 4 (4 divided by 2 = 2) share of two full sisters; 3+4=7 total share of sharers, which is in excess by 1.WILLS AND SUCCESSION 727 BOOK THREE — SUCCESSION Title III — Legal Succession Doctrine of Increase. — In order therefore to make the totality of theshares equal the whole inheritance, we increase the denominator or root of the problem from 6 to 7; hence, it is now equal to the sum total of the numerator which is 7; Thus: 3/6 is reduced to 3/7 = share of the husband; 4/6 is reduced to 4/7 = share of the two full sisters; 16 WT 9, Increase from 6 to 8. Problem: A wife died leaving a husband, mother, two (2) consanguine sisters. Compute and give their respective shares. Solution: The prescribed fractional share of the husband is 1/2; the mother is 1/6; and the two consanguine sisters is 2/3. The root of the problem is No. 6 (2 x 3 = 6). Thus: 6 divided by 2 = 3 share of the husband; 6 divided by 6 = 1 share of the mother; 2/3 of 6 = 4 (4 divided by 2 = 2) share of the two consanguine sisters; 34144 = 8; excess of 2. Doctrine of Increase: Applying the doctrine, we increase the common denominator from 6 to 8; Thus: 3/6 is reduced to 3/8 = share of the husband; 1/6 is reduced to 1/8 = share of the mother; 4/6 is reduced to 4/8 = (4 divided by 2 = 2) share of 8/6 8/8 the two consanguine sisters; 3. Increase from 6 to 9. Problem: A wife died leaving a husband, a full sister, two Uterine brothers, a mother. Compute and give their respective share. Solution: The prescribed fractional share of the husband is 1/2; a full sisters is 1/2; the mother 1/6; and the two uterine brothers 3;OF MUSLIM PERSON, (OMMENTARIES ON THE CODE AL Law Or THE PHILIPPINES WITH JURISPRUDENCE & SPECIAL PRogp The root of the problem is No. 6 (2 x 3 = 6). Thus: 6 divided by 2 = 3 share of the husband; 6 divided by 2 = 3 share of the full sister; 6 divided by 6 = 1 share of the mother; 6 divided by 3 = 2 share of the two (2) uterine brothers 34341 +2 =9; excess of 3. Doctrine of Increase: Applying the doctrine, we increase the common denominator from 6 to 9; Thus: 38/6 is reduced to 3/9 = share of the husband; 3/6 is reduced to 3/9 = share of the full-sister; 1/6 is reduced to 1/9 = share of the mother; 2/6 is reduced to 2/9 = share of the two 9/6 9/9 uterine brothers; 4. Increase from 6 to 10. Problem: A wife died leaving a husband, a mother, two (2) full sisters, and two (2) uterine sisters. Compute and give their respective share. Solution: The prescribed fractional share of the husband is 1/2; the mother is 1/6; the two (2) full sisters 2/3; and the two (2) uterine sisters is 1/3. The root of the problem is No. 6 (2x3 =6). Thus: 6 divided by 2 = 3 share of the husband; 6 divided by 6 = 1 share of the mother 2/3 of 6 = 4(4 divided by 2 = 2) share of the two (2) full sisters; 6 divided by 3 = 2 share of the two (2) uterine sisters; 3+1+4+2=10; excess of 4,WILLS AN] oe Tae SUCCESSION 2 re — SUCCESSION ‘itle TIT — Lega} Succession Doctrine of Increase: Applying ¢ - | jonmon denominator from 6 to 10, the doctrine, we increase the Thus: 3/6 is reduced to 3/10 = share of the husband; = share of the mother; 4/6 is reduced to 4/10 = share of the two (2) full sisters; 2/6 is reduced to 2/10 = share of the two (2) 10/6 10/10 uterine sisters. 1/6 is reduced to 1/10 9,1. Increase from 12 to 13. Problem: Aman died leaving a wife, two (2) full sisters, and one (1) uterine sister. Compute and give their respective share. Solution: The prescribed fractional share of the wife is 1/4; the two (2) full sisters is 2/3; the lone uterine sister is 1/6. The root of the problem is No. 12 (3 x 4 = 12). Thus: 12 is divided by 4 = 3 share of the wife; 2/3 of 12 = 8(8 divided by 2 = 4) share of the two full sisters; 12 divided by 6 = 2 share of the lone uterine sister; 34842 = 183; in excess of 1. Doctrine of Increase: Applying the doctrine, we increase from 12 to 18. Thus: 3/12 is reduced to 3/13 = share of the wife 8/12 is reduced to 8/13 = share of the full sisters 2/12 is reduced to 2/13 = share of the uterine sisters 13/13 13/18 22. Increase from 12 to 15. Problem: A man died leaving a wife, two (2) full sisters and two (2) uterine sisters. Compute and give their respective share.DE OF MUSLIM PERSONAL Laws N THE CO! INTARIES 01 PRUDENCE & SPECIAL PROCED Upp COMME! OF ‘THE PHILIPPINES WITH JURIS ed fractional share of the wife is 1/4. i ion: The prescribt : Solution: P d the two (2) uterine sisters is 1/3, two (2) full sisters is 2/3; ant The root of the problem is No. 12 (3 x 4 = 12); Thus: 12 divided by 4 = 3 share of the wife 2/3 of 12 = 8 (8 divided by 2 = 4) share of the two full sisters; 12 divided by 3= 4 (4 divided by 2 = 2) share of two (2) uterine sisters; 3+8+4=15; excess of 3. Doctrine of Increase: Applying the doctrine, we increase the common denomination from 12 to 15; Thus: 3/12 is reduced to 3/15 = share of the wife; 8/12 is reduced to 8/15 = share of the two full sisters; 4/12 is reduced to 4/15 = share of the two uterine sisters; 15/12 15/15 2.3. Increase from 12 to 17. Problem: A man died leaving three (3) wives, two true grandmother (father’s mother, and mother’s mother), four (4) uterine aca and eight (8) full sisters. Compute and give their respective SI e. ____ Solution: The prescribed fractional share of the three (3) wives is 1/4 per capita; the two (2) grandmothers is 1/6; the four (4) uterine sisters is 1/3; and the eight (8) full sisters is 2/3. The root of the problem is No. 12 (3 x 4 = 12) Thus: 12 divided by 4 = 8 (3 divided by 3 = 1) share of the three (3) wives; 12 divided by 6 = 2 (2 divided by 2 = 1) share of the t¥° (2) grandmothers; 12 divided by 3 = 4 (4 divided by 4 = 1) share of four uterine sisters;EN i RR a a WILLS AND SUCCESsion BOOK THREE ~ SUCCESSION 7 itle I — Legal Successing 2/3 of 12 = 8 (8 divided by 8 - sisters; vided by 8 = 1) share of the eight (8) full 3+2+4+8=17, excess of 5, Doctrine of Increase: Applying the doctri i common denominator from 12 to 1 ‘octrine, we increase the 7: Thus: 3/12 is reduced to 3/17 2/12 is reduced to 2/17 4/12 is reduced to 4/17 = share of the three wives; = share of the two grandmothers; = share if the four uterine sisters; 8/12 is reduced to 8/17 = share of the eight full sisters; 17/12 17/7 3. Increase from 24 to 27. Problem: A man died leaving a wife, two (2) daughters, a grandfather and two (2) grandmothers. Compute and give their respective share. Solution: The prescribed fractional share of the wife is 1/8; the two (2) daughters is 2/3; the grandfather is 1/6; and the two grandmother is 1/6. The root of the problem is No. 24 (6/2 = 3; 3 x 8 = 24) Thus: 24 divided by 8 = 3 share of the wife; 2/3 of 24 = 16 (16 divided by 2 = 8) share of two (2) daughters; 24 divided by 6 = 4 share of the grandfather; 24 divided by 6 = 4 (4 divided by 2 = 2) share of the two grandmother; 34+16+444 = 27; excess of 3 Doctrine of Increase: Applying the doctrine, we increase the common denominator from 24 to 27: Thus: 3/24 is reduced to 3/27 = share of the wife; 16/24 is reduced to 16/27 = share of the two daughters; 4/24 is reduced to 4/27 = share of the grandfather;LIM PERSONAL 2 COMMENTARIES ON THE CODE OF MUS! Laws 73: OF THE PHILIPPINES WITH JURISPRUDENCE & SPECIAL PROCEDURR 4/24 is reduced to 4/27 = (4 divided by 2 = 2) share 27/24 27/27 _ of two grandmothers, Art. 130. Reversion of Residue. — If, after distributin, the portions of the sharers, a residue is left in the inheritance and there is no surviving residuary heir, the same shal] revert in its entirety to the lone sharer or to all the Sharerg in proportion to their respective shares. However, the hushang or the wife shall not be entitled to any part of the reve, 7 rted portion as long as there are other sharers or distant kindred, Notes/Comments Sources of Article. Quran V, VIII: 8.75; “But kindred of blood have Prior rights against each other.” Hadith; Umru Ibn Shuaib reported that “the Prophet held the mother entitled to the whole inheritance by her son who was the cause of her having been divorced by li’an where the former left no other heir aside from her." Tradition: “Give the sharers their respective share, and of what remains, the first in the order is a male relative.”* Muslim Law Jurisprudence (Fiqh). Doctrine of Return (Radd). — or “Al-Tasib.” — Radd or al- tasib is the doctrine in the law of inheritance, that when the total of the shares does not exhaust the whole estate, the residue shall revert (Radd) to the heirs (sharers, residuaries) who are entitled to it. The Arabic word radd literally means “return.” Technically, in the Muslim law on succession, radd is the process whereby when after giving to the fixed sharers (ashab-ul-furud) their shares, a residue is left in the inheritance and there is no residuary heir to receive it, the same shall revert in its entirely to the lone sharer or to all the shares in proportion to their respective share. Hence, it is called return to the sharers (radd ala dhawi-al-furud). Heirs (Ashab-ul-Furud) Entitled to Return. — There are eight heirs, one male and seven females, who are entitled to return. The lone male is the half brother by the mother (uterine brother), and the seven females are: 1. The mother; — "Abu Daud, Vol. I, p. 403. *M.J. Maghniyyah, Five Schools of Muslim Law, p. 480.WILLS AND BOOK THREE Title INT — SUCCESSION — SUCCESSION Legal Succession 733 Grandmother; Daughter; Son’s daughter; Full sister; Consanguine sister; Uterine sister. rE a PO Under the Code, the husband or the wife s] i toany part of the reverted portion so long as epee pie nies or distant kindred. Early Muslim jurists were of the opinion that neither the husband nor the wife is entitled to return. However Jater times Muslim jurists hold that when the deceased left no other heir belonging to the categories of sharers, residuaries, or distant kindred (daw-ul-arham), the husband or the wife takes the residue. ‘The latter view is the one in accord with the Code. Still others are of the view that the residue shall not revert to husband or the wife even in the absence of distant kindred, but it shall go to the bait-ul- mal provided it is properly managed. Views of the Four Sunnis According to the Hanafis, after giving the shares of the ashab- ul-furud, there remained a residue of the estate, it shall go to the sharers (asahab-ul-furud), and in the event that there is none, then it shall go to the distant kindred (dhaw-ul-arham) and, if there is still none of the latter, then in that event, the surviving spouse shall be entitled to the residue.” The Malikis* and Hanbalis® share the same view that in the event of there being no residuaries (ashab- ul-mirath), the residue shall go to the public treasury (bait-ul-mar) provided it is properly managed, otherwise, the residue shall revert to the sharers (ashab-ul-furud). According to Imam Shaft, if there is no sharer, as well as residuaries, the estate shall go to the public treasury; and even of there being sharers, if after giving their fixed shares there remains a residue of the estate, but there are no tesiduaries, the public treasury shall be entitled to it. apg anii-ur-Rahma, CM.P.L., Vol. Il, p. 527; citing Al-Juljani, op. cit., Abdulla Mt ioe V, p99. on . eee » Vol. VP. IL, p. 9825 Ibn Rush, op. cit., Vol. Il, ». 952; Sharh-al-Kabir, Cairo, 1911 A.D» IV.P. #8). bi ). AL-Fi 7 , p. 32. Bia ea Seal Siaaisi, op. cit. Vol. VII, p. 201; Abdullah b. Abad al-Maydisi; Al-Muqui, Matba ‘al-Salfiyyah, Vol. M, p. 424.§ ON THE CODE OF MUSLIM PERSONAL Lawg 7134 COMMENTARIE:! WITH JURISPRUDENCE & SPECIAL PROCEDURE OF THE PHILIPPINES Same: The Doctrine of Radd (Return) According to the Four Sunni Schools. — The aUestion return arises only in the case of the sharers, because their g| : are fixed and determined. At times, they exhaust the whole estate (eg., parents and two daughters, the parents receiving one-thirg and two-thirds going to the two daughters), and on other Occassions they do not exhaust it (e.g., a daughter and the mother, the formey receiving half and the latter one-sixth). In the latter case, the question arises as to what is to be done with the remaining ono. third and to whom should we return it. In the event of there bej no specific shares for the heirs (such as brothers and uncles, who do not inherit as sharers), the question of return does not arise, The four Sunni schools say; the excess of the sharer’s shares is given to the residuaries. Hence, if the deceased has a single daughter she will get half and the remainder goes to the father, and in his absence, to the full or consanguine sisters because they are residuaries with a daughter; and in their absence to the ful] brother's son; and in his absence to the consanguine brother's son, and then in the order: The paternal uncle, the consanguine uncle and the paternal uncle’s son. In the absence of all of them, the excess will be returned to the sharers in the proportion of their shares, except the husband and the wife, as they are not entitled to the return. For example, if a decedent leaves behind mother and a daughter, the mother will take one-sixth and the daughter half as their respective shares and the remainder will be given to them as “return” by division into four parts, the mother receiving one fourth and the daughter three fourths. Similarly, if he leaves behind a consanguine and uterine sisters, the former will take the daughter's share and the latter the mother’s share. The Shaff'i and the Maliki schools say: If there is no residuary, the remainder, after the assignment of the sharers’ shares, will escheat to the bayt-al-mal.* Rules of Radd Radd takes place when all the sharers are persons to whom @ return may be made, the surplus drops, and the extractor is reduced to the aggregate of shares.“ The rules are: *M.J. Maghniyyah, Five Schools of Musli J. h Li 7 |-492. *Baillie, Digest of Muhammadan Law, p75.” pp torsWILLS AND SUCCESSION E — SUCCESSION . Legal Succession The residue shall return to its enti . j . entirely to tl if there is only one, but if there are ee Ped ere proportion to their respective share: > of them in >, ne ’ The a § Surviving husband or wife as the case may be, ou ro are ae any part of the reverted portion as long e rT 8 fi kindred; ‘arers who are entitled to return or distant 3, The number to which the extractors that is two, three, four or five; and may be reduced are four, 4, Togo about it, it is done by reducing the fractional shares to a common denominator so as to make it equal to the sum total of the numerators. Examples of Radd The following are examples of Radd: 1, Example of a reduction to two. A grandmother and a half- sister by the mother. Here, each of the parties is entitled to one-sixth, and the remainder reverts to them in proportion to their shares. The original division of the case, which was into six parts is thus reduced to two, and each party takes a half. 2, Example of a reduction to three. A grandmother and two half- sisters by the mother. Here, the grandmother has one share out of six (the original of the case), and the sisters two shares, so that the division is reduced to three. 3. Example of a reduction to four. A daughter and a mother. The daughter takes a half, or three out of six (the original of the case), and the mother a sixth, or one out of six, and the division is into four. 4, Example of a reduction to five. Four daughters and a mother (the daughter being entitled to two-thirds, or four-sixths, and the mother to one-sixth), the original division which was into six parts is reduced to five.* Illustrative Examples l Example of Return of 2. __ Problem: A person died leavi Sister as the only heirs. Compute an ing a grandmother and a uterine d give their respective share. *[bid., pp. 275-276., ‘Ny S ON THE CODE OF MUSLIM PERSONAL Laws (MENTARIE 736 COM) WITH JURISPRUDENCE & SPECIAL PROCED URS | OF THE PHILIPPINES Solution: The prescribed fractional share of the grandmothe, 1/6; and the uterine sister is also 1/6. is The root of the problem is no. 6; Thus: 6 divided by 6 = 1 fixed share of the grandmother; 6 divided by 6 = 1 fixed share of the uterine sister; 6-2=4 residue. Doctrine of Return: Since there is no other heirs who can take the residue, then the remaining Aunits of the inheritance shall revert to the sharers, the grandmother and the uterine sister in proportion to their respective share in this particular example, equally: Thus: 4divided by2 = 2return to the grandmother; 2 return to the uterine sister; 3 final share of the grandmother; 3 final share of the uterine sister. " 1+2 14+2 2. Example of Return of 3. Problem: A person died leaving a grandmother and two (2) uterine sisters as the only heirs. Compute and give their respective share. Solution: The prescribed fractional share of the grandmother is 1/6; and the two (2) uterine sisters is 1/3. The root of the problem is no. 6; Thus: 6 divided by 6 = 1 fixed share of the grandmother; 6 divided by 3 = 2 (2 divided by 2 = 1) fixed share © uterine sisters; 6-3=3 residue. Doctrine of Return: \f two 1+ 1 2 final share of the grandmother; 1+ 1 =2 final share of the uterine sister; 1+1=2 final share of the other uterine sister- dhWILLS AND SUCCI CCESs) oe THREE — SUCCESSION ‘itle Tt — Legal Succession Example of Return of 4, 737 3 Problem: A person died leavii ns oply heirs. Compute and give the 6 a daughter and a mother as the ir respective share, Solution: The prescribed fractio jg 1/2 and the mother is 1/6, nal share of the lone daughter The root of the problem is no, 6; Thus: 6 divided by 2 = 8 fixed share of lone daughter; 6 divided by 6 = 1 fixed share of the mother; 6-4 =2 residue. Doctrine of Return: 3/6 to 3/4 final share of the lone daughter; 1/6 to 1/4 final share of the mother. 4, Example of Return of 5. Problem: A person died leaving 4 daughters and a mother. Compute and give their respective share. Solution: The prescribed fractional share of the four daughters is 2/3 and the mother is 1/6. The root of the problem is no. 6. 6 divided by 6 = 1 share of the mother; 2/3 of 6 = 4 share of the four daughters; 6-5 =1 residue. Doctrine of Return: The original division which was to six parts is reduced to five. Thus: 1/5 = share of the mother; 4/5 = share of the four daughters.Chapter Three DISTANT KINDRED (DHAW-UL-ARHAM) Art. 131. Relatives Included. — Distant kindred include, the following: (a) The daughter's children and the children of son, daughter and their descendants; (b) The excluded grandfather and the excluded grandmother; (©) The sister’s children, the brother’s daugther’s, the sons of the uterine brother, and their descendants; and (d) The paternal aunts, the uterine uncles and the maternal aunts and uncles. Notes/Comments Sources of Article. Quran: VIII:75; “But kindred of blood have prior right against each other.” Hadith; It is narrated by Hadrat Umar that the Prophet said: “The maternal uncle is the heir of one who has no heir.” Same, Hadith; “The Prophet, where a person has left no heir, gave the estate to the decedent sister’s son; Ijma of the companions; Muslim Law Jurisprudences. Meaning of Dhaw-ul-Arham (Distant kindred). — Literally Dhaw-ul-Arham means “relative by womb.” Technically» the law on succession, refers to those relatives of the deceased, other than the sharer (ashab-ul-furud) and residuaries (ashab-ul-mirath), who in the absence of the latter two classes of heirs are entitled the inheritance left by the deceased. They are the distant kindre' *Tanjil -ur- Rahman, C.M.P.L., Vol. II, p. 537. "Ibid., Al-Tirmidhi; op. cit., p. 306. P SIbid., p. 538; Al-Sarakshi, op. cit., Vol. XXX, p. 3. 738WILLS AND BOOK THREE Title II — SUCCESSION 739 — SUCCESSION Legal Succession ofthe deceased who are female agnates and cognates, of female. On the basis of the traditions of companions (Umar, Ali, Abu Ubai whether male es majority of his » Ibn Jaraiji, Muadh Bin Jabal, Abu de-Darda, and others) are unanimous ie the right of the Dhaw-ul-Arham to inheritance. Such is the view of the Tabiuns or Successors of the Companions of the Prophet and other foremost Muslim jurist. The Dhaw-ul-Arham (distant kindreds) are as follows: Descendants: 1. Daughter’s children and her descendants; 2. Children of son’s daughter and their descendants how- lowsoever; “False” Grandparents: 3. False grandfather howhighsoever; 4. False grandmother howhighsoever; Collateral relatives: 5. False paternal aunt and her descendants; 6. Consanguine brother’s daughters and their descendants; 7. Full paternal aunt and her descendants; 8. Consanguine paternal aunt and her descendants; 9. Uterine paternal uncles and aunt’s and their descendants; 10. Full paternal uncles daughters and their descendants; 11. Uterine paternal uncle’s children and their descendants. Order of the Inheritance of Dhaw-ul-Arham. — The distant kindred shall inherit in the frollowing order, as under: 1. Those who are related to deceased, such as the issue of the daughters and the issues of the son’s daughter and their de- Scendants; ‘Ibid., p. 636; Al-Juliani, op. cit., p. 96.JE OF MUSLIM PERSONA} MMENTARIES ON THE COD : La oe ra PHILIPPINES WITH JURISPRUDENCE & SPECIAL PROCED Ep e is related, such Those to whom the deceased is rel ; as the ex > grandfather, 1.e., mother’s father; and the excly ded ch mother, i.e., father’s mother; 3. Those who are related to the mother and the father of 4 ceased, such as the issues of the sister, their brother’, ter, the sons of the uterine brothers, and their descg, and 4, Those who are related to two grandfathers or two Brandmotp, ers of the deceased, such as the paternal aunts, the utering uncles, and the maternal aunts and uncles. ‘Udeq Srang. he ¢ daugh, Ndants, Art. 132. Extent and distribution of shares. — In defauy tot all sharers and residuaries, the distant kindred shal] inherit the entire hereditary estate, the same to be distributeg among them in accordance with Articles 123 and 128, Notes/Comments Source of Article. — See sources of preceding article. Rules on Succession of Distant Kindred (Dhaw-ul- Arham). — The Dhaw-ul-Arham shall succeed if there are no sharers or residuaries; if there is only distant kindred, he shall get the entire inheritance; and if there are several of them, the same shall be distributed among them in accordance with Articles 123 and 128 of the Code and the al-Jabari rule as follows: First: TO THE ORDER — The three “orders” are: (1) Descendants; (2) Ascendants; (3) Collateral relatives; Heirs of the first order excludes those in second order, and those in the second order exclude those of the third order. 1e., The daughter's children and the children of the son's daughter and their descendants, when surviving together wi the false grandfather and the false grandmother, excludes the latter without Prejudice, however, to their fard; where there are no descendants, and the ones that are present are the false srandfather and/or false grandmother together with sisters children, the brothers daughter, the sons of the uterine brother and their descendants, the latter being in the collateral line, excluded by the former who are in the ascending prefe! line.WILLS AND SUCCEsg I — THREE — SUCCESSION m itle 1 — Lega Succession Second: TO THE DEGREE — Te., Where the dau, s chi ghter’s i of son’s daughter su: children and the children rvived together wi . decedent’s predeceased gether with the children of the Third: TO THE STRENGTH OF THE BLOOD TIE — Te., Where the only heirs that Survives are: (1) children of the full sisters’ children, full brother’s daughters, with (2) consanguine and uterine sistey’s ch Distant kindred of the same class, degree and blood relationship shall share equally, subject to the rule of the male having a share double that of the female.TITLE IV SETTLEMENT AND PARTITION OF ESTATE Art, 133, Administration. — The administration of the estate of a decedent shall, for purposes of settlement, Veet at the time of his death in the executor appointed in the w; ts in the absence thereof, in his heir or administrator to whom, the court has granted letters of administration. Notes/Comments Sources of Articles. — Muslim Law Jurisprudence; Civil Code; Rules of Court. Administration of Estate; Executor Distinguished from Admi-nistrator. — Administration, which is the management of the estate intestate, or of a testator who has no executor! as known in modern laws, is unknown to Muslim law. According to the early concept of Muslim law, there was no administration through an administrator, but the estate are merely distributed by the Islamic State through the Qadi, or by the heirs themselves in accordance with the principles laid down in the Shari’a. The concept of jus representationis is entirely foreign to the Muslim Law on inheritance. It was introduced to the Muslim Law on succession only in recent time through legislations providing that an executor may be named in a will and where no executor has been named by the testator, or no administrator has been appointed by the court, the whole of the estate of the deceased, or so much of it which has been left undisposed by will, devolves upon the heirs in specific shares at the moment of his death which the heir may transfer, and Pass a good title to the bona fide transferee for value even before the distribution of the estate, notwithstanding any debts remaining 7 i ict 7 \. gor, Bers Law Dictionary, Vo. 1, P. 1184; Cit, Bla.Com, 494; 1. Williams, B= AA. Fyzee, Outline of Mun, Lay , Vy, Ant M ) fun. Law, pp. ; Cit, Jafri Began V: uhammal Khan (1885)7 Alahabad apn’ "P” 219-920; Cit. Ja 742OR AND SUCCEssion : — SUCCE: Title IV — Settlement and Partition Estate id by the deceased. Such devolution i 7 void ofhis debt, if any. However, ma 1s not suspended until the re his debts, in proportion to the share payment of legacies.* Where there is no executor or administrator, the heir them- selves become the legal representatives and administer the estate.‘ Under the Code, however, if no executor is appointed in the will, the administration of the estate of the decedent for purposes of settle- ment, shall vest at the time of his death, in his heir or adminis- trator to whom the court has granted the letter of administration. An executor therefore, 18 @ person to whom a testator by his will commits the execution or putting into force of that instrument and its codicils.© While an administrator is a Person authorized to man- age and distribute the estate of intestate, or of a testator who has no executor* and, who must therefore be appointed by the Court. However, no administration is necessary where there are no credi- tors and the heirs divide the assets in kind or otherwise by mutual agreement;’ or where persons in interest settle their rights outside of the probate court.’ The heirs, when they are all of lawful age and there are no debts against the estate may immediately enter upon the administration of the estate and proceed to partition the estate among themselves. The law afford them the remedy for the division of the same among themselves.’ There is no reason to burden the estate with the cost and expenses of administrator,” and, the heirs are not bound to submit the estate to judicial administration which is always long and costly." Rule When an Heir Dies before Partition of Estate. — (Another term of double inheritance by reason of “double death.”) When a deceased leaves certain number of heirs and one of them dies before partition takes place, the surviving heirs shall inherit both from the decedent and from the heir who died before partition is 743 _— dena “ ry ‘Ibid., p. 324; Cit.Tyabji, 561 B; Mullla 31; Based principally in Jafri Begam’s ‘Ibid., p. 324; Cit. Jafri Begam's Case, 7 All, at p. 842; Tyabji 3rd ed.,733; 566. ‘Bouvier Law Dictionary, Vol. I, p. 1134; Cit., Fondli. Rights and Wrongs 307. "Tid. "Ibid. Cit, McCracken v. McCaslin, 50 Mo.App. 85; Calmus v. Jackson, 52 P.a. 307; Brown v. Baxter,77 Ksn. 97,94 Pac 155-574. ‘Ibid., Prichard V. Murhall, 14Gla. 1, 118 N.W.43. ‘Llastre v. Frondoso, 17 Phil. 321. “Javier v. Magtibay, G.R. No. L-6829, December 29, 1954. "Angeles v. Valdez, G.R. No. L-5705, June 30, 1954.a ¥ ON THE CODE OF MUSLIM PERSONAL tay a WITH JURISPRUDENCE & SPECIAL PROCES E 4 COMMENT! m OF THE PHILIPPI le: If a person dies leaving the followin, : CT a rs ie, if the son dies before the aaa ne oe estate, his share from their deceased father of one-half 1/9 : of be divided between his sisters who originelly received from ant deceased father one-fourth (1/4) each, who shall divide the one-hay (1/2) share of their deceased brother equally between them, . 134. Governing School of Law. — (1) In eve , tion ee of will or for the settlement of the ce ti. a decedent, all matters relating to the Appointment of ad. ministrator, powers and duties of administrator OF execy, tor, the court shall take into consideration the school of law (madhab) of the decedent. (2) If the decedent’s madhab is not known, the Shafi'i school of law may be given preference a gether with the special rules of procedure adopted Pursuant to this Code. Notes/Comments Sources of Article. — Muslim Law Jurisprudence; Code Commission. Governing School of Law. — In all matters relating to suc-cession to the decedent, such as petition for probate of will or for the settlement of the estate of the decedent, appointment of administrator, powers and duties of administrator or executor, the court shall take into consideration the school of law of the decedent. The Muslim schools of law shall, for purposes of this Code, be the Hanafi, the Hanbali, the Maliki and the Shafi’. But if the decedent’s Madhab is not known, the Shafi Madhab may be given preference specially if the decedent is a Filipino-Muslim since the generally Tete school of law of the Filipino-Muslim is the Shafi Madhab. The pertinent Provisions of the Special Rules of Procedure for the Shari'a Courts shall likewise be observed and alse suppletarl whenever applicable the Provisions of the Rules of Courts. Succession to the e State of a deceased Muslim is governed by ee which he belonged at the time of his death, and “Art. 6, par. 2, P.D, Dp MA . 1083. ‘ ‘ 7 a mad (1890) 19 aoe Lea Moh. Law; p. 44; Cit., Hayat-un-Nisa V. Mo! aeWILLS AND SUCCI ESSION An ee THREE — SUCCESSION ‘it — Settlement and Partition of Estate 745, ath was domiciled in a city in P, gomicile being applicable to the spl be administered and distrib; akistan and the law of country of estate of the deceased, her estate uted in accordance with i ‘ : : the Sunni anafi Muslim Laws as in force in Pakistan." The presumption is d therefore the Ci i: ne of fact anc ‘e Court may refuse to it i ie circumstances of a particular cage.» ee Other School of Muslim Law. — The Code under Article 6, paragraph 2 has specifically provided that the Muslims school of taw shall be purposes of this Code, be the Hanafi, the Hanbali, the Maliki and the Shafi which are generally referred to as the Sunaite. However, under the preceding Article 5 of the Code, it also provides: Muslim Law x x x not embodied in this Code shall be proven in evidence as a fact. In effect, it may allow other school of Muslim Jaws to be recognized provided it is proven in evidence as a fact. The other Muslim School of law aside from the four orthodox Sunnite is the Shiite School of Law. The principles of the Ithna Ashari Shiite Law commonly known as Shia Law in India are very different from the principles of Hanafi Law® of the Sunnite Law on Succession which are the ones adopted in this Code. Basically, the Sunnite and the Shiites Systems are similar in that both systems has the Quran as the starting point.” The notable differences between them are: The “asabat” (Agnatic Heirs) remained in the Hanafi scheme the most important heirs. The Shiite, however, destroyed this principle completely. They interpret the Holy Writ as placing those who are related through women on a footing of equality with those related through men. Cognates and agnates are placed on a footing of equality. The classification of Heirs was not I. Quranic Heirs, II. Tribal Heirs, and III. Uterine Heirs, but with due consideration given to the provisions of the Quran, into two main classes: (a) Quranic Heirs, (b) all other blood relations; thus, dhu fard and dhu qarabat. Hence, the classification of heirs are different. In the Shiite the Quranic heirs remain, but the asabat and the dhaw-ul-arham are combined to form a new class, dhaw-ul-qarabat, based on blood relationship in the widest sense. The verse that a male shall have twice as much as female is interpreted by the Shiites as changing the entire scheme of distribution. Thus, we see the theory of law that “[bid., Cit., Muhammad Sulaman Malik, et al. v. Royal Trust Corp. of Canada, ‘al, 1979 C.L.G. 45, “Ibid., Cit. Sardar Bibi v. Muhammad Baksh PLD 1954 Lah. 480. “A.A. Fyzee, Outline of Muh., Law, p. 381. “Tbid., p. 403.WT 746 COMMENTARIES ON THE CODE OF MUSLIM PERSONAL Laws OF THE PHILIPPINES WITH JURISPRUDENCE & SPECIAL PROCEDURE the daughter's children stand in the shoes of the daughter, ang the sister’s children inherit in the right of the sister; and this Principle was systematically applied in every case. The Quranic Provision that the daughter is entitled to succeed with the son is interpreted by the the Shiites as applicable to all heirs female. The Shiite jurists take the provisions of the Quran as not restricted to individual instanceg of the daughter or the sister, but as establishing a new principle for the benefit of females, for as Tyabi rightly points out, probably the most important legal reform introduced by Islam refers to the right of women."* Art. 135. Order of preference of claims. — The estate of decedent shall be applied to claims and charges in the following order: (a) Unpaid taxes; (b) Reasonable funeral expenses; (c) The expenses for probate, administration and other judicial expenses; (d) The debts of the decedent; (e) The legacies to the extent of the disposable one- third; (f) The distribution of shares among heirs; and (g) Unpaid dower. Art. 136. Liability of heirs. — The liability of the heirs of a decedent for the payment of the latter’s debts shall not exceed the hereditary estate. Each heir shall be liable only for the payment of the decedent’s debt in proportion to his share. Notes/Comments Sources of Article. Quran: IV: “The distribution in all cases is after the payment of legacies and debts.” Muslim Law Jurisprudence (fique); Rules © to 90, Revised Rules of Court; Articles 1059, 2239 to 2251, New Civil Code of the Philippines. “[bid., pp. 403-406; Cit; Tyabji, 3rd Ed., 926. heBoor syaND SUCCESsion Mets EE — SUCCESSION ettlement and Partition of Estate TAT Claims or charges against th : e Estate. — | i anting letters testamentary or of administration, ae a shall jgsue @ notice requiring all persons having money of claims against the decedent rope os in 7 Office of the clerk of said court,” Such ase ‘ ia oot ppointe i where only a special administrator has All claims for money against the d isi: : = ect ie tract, express or implied, whether a ae : the same be due, not due, or contingent, all claims for funeral xpenses for the last sickness of barred forever, except that they in any action that the executor or administrator may bring against the claimants. Where an executor or administrator commences an action, or prosecutes an action already commenced by the deceased in his lifetime, the debtor may set forth by answering the claims he has against the decedent instead of Presenting them independently to the court as herein provided, and mutual claims may be set off against each other in such action, and if final judgment is rendered in favor of the defendant, the amount so determined shall be consid- ered the true balance against the estate, as though the claim had been presented directly before the court in the administration pro- ceedings. Claims not yet due, or contingent, may be proved at their present value." However, causes of action other than for funeral ex- penses and expenses for last illness, that arose after the person’s death are not proper claims for presentation to the probate court.” Secured Claims. — A creditor holding a claim against the deceased secured by mortgage or other collateral security, may abandon the security and prosecute his claim in the manner provided in this rule, and share in the general distribution of the assets of the estate; or he may foreclose his mortgage or realize upon his security, by action in court, making the executor or administrator a party defendant, and if there is a judgment for a deficiency, after the sale of the mortgaged premises, or the property pledged, in the foreclosure or other proceeding to realize upon the security, he may prove his deficiency judgment in the manner provided in the “Rule 86, Sec. 1, Rules of Court. alanay v. Martinez, 64 SCRA 452, *Ruk f Court. : : "Phil, Trading Co reso sfeld, 5 Phil. 400; Dariano v. Fernandez, 41 Phil. 62.OF MUSLIM PERSONAL LAws DE THE CO) JUDENCE & SPECIAL PROCEDURE, IN COMMENTARIES 0 HJURISPR OF THE PHILIPPINES WIT! rely upon his mortgage, or other securit any sam “at anytime eae bes Period of the imitati in that event he s! not be admitteg statue of im ae oe eee in the distribution of the othe, creets of the estate; but nothing herein contained shall prohibit the ean or administrator from redeeming the property mortgag ed or pledged, by paying the debt for which it was 7 | as security, under the direction of the court, if the court shall judge it for the best interest of the estate that such redemption shall be made.* Property of the Decedent Subject to Claims. — If the testator makes provisions by his will or designates the estate to be appropriated for the payment of his debts, and the expenses of administration or the family expenses, they shall be paid according to the provisions of the will. But if the provision made by the will or estate appropriated is not sufficient for that purpose, such part of the estate of the testator, real or personal, as is not disposed of by will, if any, shall be appropriated for that purpose.* The personal estate of the deceased not disposed of by will shall be first chargeable with the payment of the debts and expenses; and if said personal estate is not sufficient for that purpose, or its sale would redound to the detriment of the participants of the estate, the whole of the real estate not disposed of by will, or so much thereof as is necessary, may be sold, mortgaged, or otherwise encumbered for that purpose by the executor or administrator, after obtaining the authority of the court therefore. Any deficiency shall be met by Cae in accordance with the provisions of Section 6 of this ule.> preceding section; alone, and foreclose The estate, real or personal, given by will to the devisees or legatees, shall be liable for the payed of debts, expenses of etree and family expenses, in proportion to the amount : several devisees or legacies, except that specific devisees and legatees may be exempted if it appears to the court necessary to carry into effect the i ; : y ees the intention of the testator, and if there is sufficient When the estate given by will is li tat y will is liable for th f debts and expenses, or is liable to be taken to ee a ieee af achild are 86, Sec. 7, Rules of Court, ao 88, Sec. 2, Rules of Court. a ‘ule 88, Sec. 3, Rules of Court, Rule 729, Id., Act No. 190, aWILLS AND BOOK THREE Title IV — Settlement SUCCESSION — SUCCESSION t and Partition of Estate porn after the execution of a will, or a child or the issue of a child not rovided for in the will, and not intentionally excluded therefrom. the executor may retain possession of the same until such liability js settled by order of the court, and until the devises and legacies so jable are accordingly assigned by order of the court, and a devisee or legatee may make his claim to é a ‘ the court to hav h liability settled and his devise or legacy assigned to him.” So 749 When the devisees, legatees, possession of portions of the estate before the debts and expenses have been settled and paid, and have become liable to contribute for the payment of such debts and expenses, the court having jurisdiction of the estate may, by order for that purpose, after hearing, settle the amount of their several liabilities and order how much and, in what manner each person shall contribute, and may issue execution as circumstances required.” The liability of the heirs of the decedent for the payment of the latter’s debts shall not exceed the hereditary estate. Each heir shall be liable only for the payment of his share.” or heirs have entered into If a person liable to contribute, according to the provisions of the preceding paragraph, is insolvent and unable to pay his share, the other shall be severally liable for the loss occasioned by such insolvency, in proportion to and to the extent of the estate they received; and if a person so liable to contribute dies before paying his share, the claim shall be valid against his estate as it had been his proper debt.” The court having jurisdiction of the estate may, by decree for that purpose, after hearing, settle the amount of the several liabilities as provided in the preceding paragraphs, and decree how much, and in what manner, each person shall contribute, and may issue execution if circumstances require. Taxes; Claims against the Estate. — With reference to Specific movable property of the debtor, the following claims or liens Shall be preferred: Duties, taxes and fees due thereon to the state or any subdivision thereof: with reference to specific immovable Property and real rights of debtor, the taxes due upon the land or ee "Sec, 730, Id. *Rule 88, Sec. 6, Rules of Court. *Art. 136, P.D. 1083. Sec. 732, Act No. 190. "See. 733, Id. Art, 2241, Civil Code.IM PERSONAL LAWs ‘ARIES ON THE CODE OF MUSLI wor 1 OMNMILIPPINES WITH JURISPRUDENCE & SPECIAL PROCEDURE ‘iding:*" and with reference to other property, real and Personal eee by analogy Article 2244 of the Civil Code, after paying the reasonable funeral expenses, the expenses for probate of will, administration and other judicial expenses, and debts of the decedent which are preferred credits shall be paid all other taxes and assessments due the national government or due any Province, city or municipality in that order,* other than those taxes preferre d over specific personal or real property mentioned in Articles 223) and 2242 of the Civil Code. Reasonable Funeral Expenses. — Islam preaches simplicity, particularly so when one dies. Every one is given a seamless shroud, Therefore, funeral expenses must be reasonable. According to the Maliki School, where a wife dies leaving her husband, the husband is held responsible for her funeral expenses, If the man dies admittedly after her death, the responsibility will shift to the other surviving relatives who will inherit him. According to the Hanafi school, the husband is responsible for a wife’s funeral expenses even though he himself is dead and even if the wife is rich. Imam al-Shaibani says that if she is rich the funeral expenses will be paid out of her estate, but if she does not leave anything, the funeral expenses will be paid by her relatives because the marital relationship came to an end upon the death of her husband. In the Shafi’i school of thought if the husband is rich, he is responsible for funeral expenses. The husband is likely to become rich by inheriting her too. But if she is rich, the funeral expenses will be paid out of her estate but excluding the share of the husband. If she is not rich, and the husband is not likely to become rich by inheriting her, the funeral expenses will be paid from the little she has left including the share of the husband, if she had left nothing her relatives will bear the expense. If she has no relatives it will be paid from the public treasury.* It has been held that the cost of a i th, ppropriate funeral wreath, a suitable marble over the grave* or of a mausoleum on the tomb, —————__. *Art, 2242, Id. “See Art. 2244, Id. wpe, Sharia’h The Islam Law, p. 293. 'A. Tolentino, Comments to the Civil Code, Vol. Ill, 1979 Ed., p. 713.WILLS ; BOOK THREE ee Title IV — Settlement ang Partition of Estate a not disproportionate to the asl dered funeral expenses. Bui oreasiON of the anniversary of t) i considered a part of the fune: relation to the funeral.» amount of the inheritance,” are it the expenses incurred on the he death of the deceased cannot ral expenses because they bear no Expenses and Fees Allowed EF; _ An executor or administrator sh; expenses in the care, management, and settlement of the estate, and for his services, four pesos per day for the time actually and necessarily employed, or a commission upon the value of so much of the estate as comes into his possession and is finally disposed of by him in the payment of debts, expenses, legacies or distributive shares, or by delivery to heirs or devises, of two per centum of so much of such value as exceeds thirty thousand pesos and does not exceed one hundred thousand pesos, and one-quarter per centum of so much of such value as exceeds one hundred thousand pesos. But in any special case, where the estate is large, and the settlement has been attended with great difficulty and has required a high degree of capacity on the part of the executor or administrator, a greater sum may be allowed. If objection to the fees allowed be taken, the allowance may be re-examined on appeal. ‘xecutor or Administrator. all be allowed the necessary If there are two or more executors or administrators, the com- pensation shall be apportioned among them by the court according to the services actually rendered by them respectively. When the executor or administrator is an attorney, he shall not charge against the estate any professional fees for legal services rendered by him. When the deceased by will makes some other provision for the Compensation of his executor, that provision shall be a full Satisfaction for his services unless thru a written instrument filed in court he renounces all claim to the compensation provided by the will.» Debts of the Decedent (Aduyon al Mutlagah). — After the Unpaid taxes, the reasonable funeral expenses and the expenses for Probate of will, etc., the present article of the Code under paragraph ‘@) places debts in general without distinction in the fourth order of “Ibid., Concepcion v. Jose, 46 Phil. 809. “lbid., Intestate Estate of Nicolas, 63 Phil. 332. “Rule 85, Sec. 7, Rules of Court.'§ ON THE CODE OF MUSLIM PERSONAL Laws TE’ 752 COMMENTARI ITH JURISPRUDENCE & SPECIAL PROCEDURE OF THE PHILIPPINES W: preference of claims and charges on the decedent's estate. Howe the estate may be burdened with several kinds of claims and cha, and an order of preference, in such case has to be observed, pertinent provisions of the Civil Code, which is a suppletory Jay a the Muslim Code on the matter are reproduced hereunder: Art, 2241 — With reference to specific movable property of the debtor, the following claims or liens shall be preferred: 1, Duties, taxes and fees due thereon the state or any subdj. vision thereof; (Nota Bene: This charge or lien is already in the first order of preference under the Muslim Code separate from the other debts of the decedent in general.) Ver, Tees 2. Claims arising from misappropriation breach of trust, or malfeasance by public officials committed in the performance of their duties, on the movables, money or securities obtained by them; 3. Claims for the unpaid price of movables sold, on said movables, so long as they are in the possession of the debtor, up to the value of the same; and if movable has been resold by the debtor and the price is still unpaid, the lien may be enforced on the price; this right is not lost by the immobilization of the thing by destination, provided it has not lost by the sale of the thing together with other property for a lump sum, when the price thereof can be determined proportionately; 4. Credits guaranteed with a pledge so long as the things pledged are in the hands of the creditor, or those guaranteed by a chattel mortgage, upon the things pledged or mortgaged, up to the value thereof; 5. Credits for the making, repair, safekeeping or preservation of personal property, on the movable thus made, kept or possessed; 6. Claims for laborer’s wages, on goods manufactured or the work done; 7. For expenses of salvage, upon the goods salvaged; 8. Credits between the landlord and the tenant, arising fro™ the contract of tenancy on shares, on the share of each» the fruits or harvest;10. 1. 12. 18. WILLS AND SUCCESsI eSSION = ; BOOK THREE — SUCCESSION Title IV — Settlement and Partition of Estate Credits for transportation, upon the goods carried, for the price of the contract and incidental expenses, until their delivery and for thirty days thereafter; Credits for lodging and supplies usually furnished to travelers by hotel keepers, on the movables belonging to the guest as long as such movables are in the hotel, but not for money loaned to the guests; Credits for seeds and expenses for cultivation and harvest advanced to the debtor, upon the fruits harvested; Credits for rent for one year, upon the personal property of the lessee existing on the immovable leased and on the fruits of the same, but not on money or instruments of credit; and Claims in favor of the depositor if the depository has wrongfully sold the thing deposited, upon the price of the sale. In the foregoing cases, if the movables to which the lien or preference attaches have been wrongfully taken, the creditor may demand them from any possessor, within thirty days from the unlawful seizure. Art. 2242. With reference to specific immovable property and teal rights of the debtor, the following claims, mortgages and liens shall be preferred, and shall constitute an encumbrance on the immovable or real right: 1. Taxes due upon the land or building; (Also, this is already in the first order of preference under the Muslim Code, separate from the other debts of the decedent in general.) For the unpaid price of real property sold, upon the immovable sold; Claims of laborers, masons, mechanics and other work- men, as well as of architects, engineers and contractors, struction, reconstruction or repair of engaged in the con: rt er works, upon said buildings; buildings, canals or oth Claims of furnishers of materials used in the construction, reconstruction, or repair of buildings, canals or other works, upon said buildings, canals or other works;a oy SLIM PERSONAL LAWS 1S ON THE CODE OF MUS! hp aE PanLIPrINES WITH JURISPRUDENCE & SPECIAL PROCEDURE 5. Mortgaged credits recorded in the Registry of Py, perty, upon the real estate mortgaged; 6. Expenses for the preservation or improvement of re, : property when the law authorizes reimbursemen; t, upon | the immovable preserved or improved; 7. Credits annotated in the Registry of Property, a judicial order, by attachments or execution: property affected, and only as to later credits; in Virtue of '8, Upon the 8. Claims of co-heirs for warranty in the Partition of an immovable among them, upon the real Property thus divided; 9. Claims of donors of real property for pecuniary charges or other conditions imposed upon the donee, upon the immovable donated; and 10. Credits of insurer, upon the property insured, for the insurance premium for two years. Art. 2244. With refe of the debtor, the followi order named: 1. Proper funeral expenses for the debtor, or children under his or her parental authority who have no property of their own when approved by the Court (Nota bene: This is also in the second order of preference and in the Code); 2. Credits for services rendered laborers, household helpers commencement of thy rence to other property, real and Personal, ing claims or credits shall be preferred in the the insolvent by employee, for one year preceding the © proceedings in insolvency; . Expenses during the last illness of the debtor or of his or her spouse and children under his or her parental authority, if, they have no Property of their own; Compensation due the laborers or laws Providing for indemnity laborer accident, or ill the employment; their dependents under for damages in cases of | ness resulting from the nature of ise and advancements made to the debtor for support | imself or erself, and family, duri the last year Preceding the insoly. ency; 'Y, during the 4 )OS Sane10. 1. 12. 18. 14. WILLS AND SUCCE: ‘SSION a ae THREE — SUCCESSION — Settlement and Partition of Estate Support during the insolven, months thereafter; 755 cy proceedings, and for three Fines and civil indemnificati — ication Pa offense; arising from a criminal Legal expenses and expenses incurred in the administra- tion of the insolvent’s estate for the common interest of the creditors, when properly authori pene ly orized and approved by Taxes and assessments due the national government, other than those mentioned in Articles 2241, No. 1 and 2242, No. 1; Taxes and assessments due any province, other those referred to in Articles 2241, No. 1 and 2242, No. 1; Taxes and assessments due any city or municipality, other than those indicated in Articles 2241, No. 1 and 2242, No. 1; Damages for death or personal injuries caused by a quasi- delicts; Gifts due to public and private institutions of charity or beneficence; and Credits which, without special privilege, appear in (a) a public instrument; or (b) in a final judgment, if they have been the subject of litigation. These credits shall have preference among themselves in the order of priority of the dates of the instruments and of the judgments, respectively. Art, 2245. Credits of any other kind or class, or any other right or title not comprised in the four preceding articles, shall enjoy no Preference. Rules on the Order of Preference of Credits. — Those credits which enjoy preference with respect to specific movables, exclude all others to the extent of the value of the personal property to which the preference refers.” “Art, 2246, Civil Code.OF MUSLIM PERSONAL La) COMMENTARIES ON THE CODE Ww oon ‘THE PHILIPPINES WITH JURISPRUDENCE & SPECIAL, PROCEDURp If there are two or more credits with respect to the same SPecife movable property, they shall be satisfied pro rata, after the pa, of duties, taxes and fees due the State or any subdivision thereof a Those credits which enjoy preference in relation to specifi real property or real rights, exclude all others to the extent of the value of the immovable or real right to which the preference refers.« Ifthere are two or more credits with respect to the same Specific real property or real rights, they shall be satisfied Pro rata, after the payment of the taxes and assessments upon the immovable Property or real rights. The excess, if any, after the payment of the credits which enjoy preference with respect to specific property, real or personal, shal] be added to the free property which debtor may have for the payment of the other credits.“ Those credits which do not enjoy any preference with respect to specific property and those which enjoy preference, as to the amount not paid, shall be satisfied according to the following rules: 1. In the order established in Article 2244; and 2. Common credits referred to in Article 2245 shall be paid pro rata regardless of dates. Preference of Credits under Muslim Law. — Muslim Jurisprudence classifies debts chargeable against the decedent’s estate generally into two classes: (1) Those debts incurred in good health (Aduyon Mursala); and (2) debts incurred in illness. Imam Malik and Imam Shafi’ did not make any distinction between these two debts. However, in case of debts incurred in serious illness, as in marad-al-maut (death-illness) the former debts in good health will be given preference over the latter if the decedent will be suspected of hiding away his property from his heirs, i.e., if the debt incurred in death-illness appears excessive or is over and above the legally disposable portion which decedent could lawfully give in bequest (wasiya). “Art. 2247, Id. “Art, 2248, Id. “Art, 2249, Id. “Art, 2250, Id. “Art. 2251, Id.WILLS AND SUCCESSIO. iy BOOK THREE — SUCCESSION Title IV — Settlement and Partition of Estate Al-Huqug Al Muta alliga bit Tarikah (Rights Attached to tne Estate of the Decedent, — There are five rights attached to the estate of the decedent setting in the following order: w@ Funeral expenses: It is the expense to be incurred in the washing, shrouding and interment of the remains of the deceased. According to Al Imam Ahmad Ibn Hanbal: This right has preference over the specific rights attached to the property of the decedent (Al Huqua Al Muta Allaga bi Ainit Tarikah), because if it is incumbent upon a person to cover his body during the lifetime, it is also incum- pent to cover his body after death. If he dies leaving no property or has been lost before his death, it is incumbent upon his heirs to shoulder all the expenses; (2) The specific rights attached to the property of the decedent (Al Huquaq Al Muta Alliga bi ainit Tarikah), like debt, collateral (rahan) for loan and indemnities for crimes; (3) The absolute debt which are not attached to the specific rights of the decedent (Al Duyon Al Mutlaga allati lam tata allaq bi ainit Tarikah) and it is connected with those under covenant (Ad Dhimma) and debt without collateral or Allah’s rights over His creation; (4) Rights of legatees (Haqqul Alu-sha Laho), one-third (1/3) gross estate for the payment of the bequest and legacies in favor of the beneficiaries (who are not heirs of the decedent); (5) Rights of Heirs (Haw Al Irth or Al Waratha. — Al Irth or Al Waratha (net estate), is the main concern of the science of inheritance. The net estate of the decedent becomes property of the heirs after deduction of the foregoing charges.”* Legacies and Devises. — After all the debts of the decedent shall have been paid, thereafter, out of the remainder of the estate and to the extent not exceeding one-third portion thereof, shall be used to answer for the legacies and devises. This right of the legate to have the legacy in their favor satisfied is called Al Hak ad Musalahu. (For more discussions on legacies and devisees, see comments to Article 106 of the Code.) “Muh, Al Ed, Alkatra-wi, Al Raid Fi ilmul Faraid (Guide in the Science of Ttheritance based on Hanbalis Law on Inheritance).OF MUSLIM PERSONAL LAWS E ES ON THE CO UDENCE & SPECIAL PROCEDURE 158 COME NES WITH JURISPRU! OF THE PHILIPPIN! i irs to Net Estate (Al Hak el Waratha), — 7}, semaine of i eatate of the decedent after satisfying the first five ferred charges in letters (a) to (e) of the presen’ icle is called aT Mirath or net disposable estate to which the decedent’s heirs arg entitled for the satisfaction of their epee eee a This right of the heirs to the remaining net portion of t ce ent S estate which is called Al Hak el Waratha is governed by dl e Islamic rules of inheritance with respect to the requisites, conditions, qualifications and exclusions of heirs. The rights of the heirs to the net estate ae classified under the Sunni law into: () Share furud, meaning fixed), (2) Share plus residue (al fardh watha asib); and (3) Residue (taasib), Takaruz defined. — Takaruz literally means waiver, ‘As a legal term it means waiver by an heir of his share from the inheritance after the right to succession is vested on him provided he is qualified under the law to inherit from the decedent. ‘An heir even before the distribution of the estate of a deceased relative may transfer or waive his own share and pass title to a bona fide transferee. However, no such waiver is valid before the right to succeed to the estate of the decedent is transmitted and vested on the heir. Unpaid Dower. — In the order of preference of claims under the present article, the unpaid dower of the wife is placed in the last order after the distribution of shares among heir. Author’s Observation. — The wife’s unpaid dower would forever remain unpaid under the order of preference provided in the present article because the residue of the estate after the legacies and devisees are satisfied, will be distributed among the heirs, first to the sharers, next to the residuaries, and last to the distant kindred thereby, consuming the whole estate, leaving nothing thereafter, for the payment of the wife’s upaid dower. The only possibility when the wife’s unpaid dower may get paid is if the decedent leaves no heir at all which could rarely happen or, if there still be a remainder after satisfying and the charges from (a) to (f). Author’s Opinion. — It is the author’s opinion that in order not to render the provision of the code under Article 22, regarding the payment of the wife’s unpaid dower, inoperative, the wife’s unpaid dower must be included in the debts of the decedent under letter (@) ofthe order of preference of charges of the present article. Under the Shari ‘a, a widow in such circumstances, ranks as one of the unpaid creditor and receives the unpaid dower (mahr) before the shares ofBoone D SUCCESSION a esd E SUCCESSION 'ettlement and Partition of Estate 759 the inheritance are given to the heirs. The dower is the wife’ roperty, like any other money that is paid or owing her. Ifnot paid at the husband's death, she is creditor, on his eae but she hi as claim to preference over other creditors. She may, nee nae a sort of lien, because it seems, that if she is in possession of her husband 's property she cannot be compelled to give it up until her dower is paid. It has also been considered that a person purchasing any portion of the estate of a deceased person ought, if he receives notice that her dower is unpaid, to see her claim ig satisfied. Unpaid Dower Held Unsecured Debt. — An unpaid dower represents an unsecured debt. This can be illustrated by considering the leading case Maina Bibi v. Caudhri Vakil Ahmad.© A Muslim, Main-ud-Din, died in 1870 survived by a widow, Maina Bibi. The widow remained in possession of certain immovable property. In 1902, the other heirs sued the widow, claiming immediate possession of their share of the estate. The widow defended the application on two grounds. First, she said that the property had been gifted to her. Second, and in the alternative, she argued that she was entitled to remain in possession of the property until the dower had been paid. In 1907, well before the case had been finally decided, the widow, Maini Bibi, executed gifts of the property in favour of a third party. She gave possession to this third party. In 1915, the heirs filed a further suit against the widow and the alienees. The Judicial Committee of the Privy Council, before which the case eventually arrived, held that although the widow had a right to remain in possession of her former husband’s property, until the dower debt had been paid, she had no absolute right in the property thus the alienation was ultra vires. The widow's right is a personal right, and she is not able to convey a good title to third parties. Her right, however, is heritable and the wife’s heirs can themselves remain in possession.” Her right to remain in possession, of course, is conditional on her being in possession of property at the husband’s death, In all other aspects, the widow is in the same situation as other creditors of the estate. Indeed, if there are any profits arising _ . 465 (see also - Amir Al pa is “William Markby, Mohammedan Law, P. 7°. “David Pearl, Muslim Law, p. 62; cit. 1924/5 52 LR a 413. See ah “?bid., Kapore Chand v. Kidar Nissar Begum, AIR 1968 . See also Zo- ir Ahma ; i 0 AIR Patna 147. There is a Mysore case Wait Ahmad v, Jainandam Prasad Sing owas not only heritable but also Which was held that the rig tain possessi e t the right to re - ransferable, provided it was done of conveyance, and the transferee is put in posses- ‘ion. Hussain v. Rahim Khan, 1954 AIR Mysore 24-LIM PERSONAL LAWg JMMENTARIES ON THE CODE OF MUS PER S oe THE PHILIPPINES WITH JURISPRUDENCE & SPECIAL PROCED Upp from the property in her possession, she has to account the Profits to the other heirs. TECHNIQUES AND METHODOLOGY OF FIXING THE SHARK OF THE HEIRS (KAYFIYATU) IN ACCORDANCE WITH THE MUSLIM LAW ON INHERITANCE Preliminary statement The science of fixing the share of inheritance (IImul Faraid) as a branch of practical science has been developed by early Muslim jurists (Fugaha). The precise details were worked out on the basis of the broad principles laid down in the Holy Quran and the Tradition of the Holy Prophet (P.B.U.H.). Elaborate details were drawn from interpretation (taweel), consensus (ijma), and analogy (qiyas). Some of the major works on the subject are those of Ibn Thabit, Abu’l-Qasin Al Hawfi (Mukhtazar, Maliki), Al-Ja-di, Ibn-al- Munammar at Tarabulisi and other compilations of works of Muslim jurists such as those of Sirajuddin Sarawandi, Abdul Ma’ali (Imam Al Haramyn) and by Imam Nawawi (Minhaj-et-Talibin, Shafi’). The method of determining the shares of the heirs from the estate left by a Muslim decedent is known in Muslim law as “kayfiyatu.” Stages in the Distribution of the Estate. — The first step in the distribution of the estate of a deceased Muslim, after the payment of his funeral expenses, debts, and legacies, is to assign to the sharers who are entitled to receive a share in the inheritance their respective share. (See table of shares herein following.) TABLE OF SHARES ACCORDING TO HANAFI (SUNNI) SCHOOL Heir Share | Share Entirely Affected by | How when | when Two | excluded by affected alone | or more collec- tively 1. Husband | 1/4 None Where no _| Share child or child | increased ofsonh..i.s | to /2 _,, _M. Buat, Introduction to the Study of Muslim Personal Law on Succession, Shari'a Course Outline and Formula Lectures, p. 91. ~y Se *WILLS AND SUCCESSION 761 BOOK THREE — SUCCESSION Title IV — Settlement and Partition of Estate 2, Wife a None Where no _| Share child or child | increased ofson his | to V4 3, Father ve None Where no —_| Made child or child | Agnatie of son Heir 4, True ue Father, Whereno | Made Grand- nearer true | child or child | Agnatic father grandfather | of son h..i..s | Heir. 5, Mother v6 None Where no —_| Share (1) child, (2) | increased child of son | to 1/3 of h.i..s (3) whole brother and_| estate in sister, (4) | cases (1) more than | to (4); and one brother | 1/3 after orsister, | deducting and (5)co- | husband existence of | or wife’s | husband or | share in wife with | case (6). father. 6. Grand- ve | V6 Mother, mother nearer ma- h.h.s ternal None (Maternal).. or paternal (Paternal). grandmoth- er. Mother, neare ma- tomatoe | None paternal grandmoth- er, father, nearer true grandfather. 7. Daughter | V2 28 None Existence of | Made son Agnatic Heir. 8. Son's 2 | 23 Son, more | Existence of | Share Daughter thanone | (1) only one_| reduced daughter, | daughter, to land | higher son’s | (2)only one | (2; made | son,more | higher son's | residuary | thanone —_| daughter, (3) | by (3). higher son’s | equal son’s —— daughter. | son.COMMENTARIES ON THE CODE OF MUSLIM PERSONAL LAws 7 Op THE PHILIPPINES WITH JURISPRUDENCE & SPECIAL PROCED UR, i vw jas Son, son, | Existence of | Made fe heies fall brother. | Agnatie father true Heir grandfather. 10. Consan- | 12 = | 28 Son, son, | (1) Exis- | (1) Shang guine Sister hie, tence of | reduced ay father, true | only one full | 1/6, grandfather, | sister; (2) full brother, | Existence of more than | consanguine one full brother. sister. 11. Uterine V6 v3 Child, none Brother child of a son h..i..8., father true grandfather 12. Uterine Sister Note: (10 — In distributing the estate of the deceased Sunnite [Hanafi] Muslim one has to see whether there exist any of Quaranic Heirs mentioned on Col. 1; than to see that they are not entirely excluded by the persons mentioned in Col. 3; then to assign to them the shares mentioned in Col. 2; unless their shares are affected by the persons mentioned in Col. 4; in which case to assign to them the shares mentioned in Col. 5). Methodology (kyfiyatu) of determining the shares of the Heirs. — First: Determine the net estate of the decedent by deducting all claims and charges from his gross estate in accordance with the order of preference prescribed in Article 135 of the Code; Second: determine who are entitled to the estate as sharers by applying the RULE OF EXCLUSION of heirs under Article 123 of the Code; and who are the residuaries entitled to the residue of the estate after the fixed shares of the sharers are settled by applying the RULES OF PREFERENCE AMONG RESIDUARIES under Article 128 of the Code; Third: Determine the ROOT OF THE PROBLEM (Usu! al masail) or common factor. The root of the problem is the key “Outline of Muhammadan Law, Asaf A.A. Fyzee, p. 345.ANI BOOK THREE SUCCESsIon 163 he mathemati i mber to tl ‘atical com; i inati es ie aleharee tise tee Putation in the determination of The first and second steps have corlier in this work. We shall Proceed t! a which is, how to get the key n (masail al masala) and thereafter; been thoroughly discussed herefore to deal with the third umber or Root of the Problem Fourth: Determine the unit share them into its money value. Determining the Root of the Problem (Usul al Masail). _ To get the root of the problem or common factor, first we have to examine the relationship of the numbers of the denominators of the appointed or fixed shares of the sharers. The numbers usually jnvolved are: 2, 3, 4, 6, and 8, e of the heirs and convert The doctors of Muslim law (fuqaha) regarding the science of fixing the shares of the heirs (Ilmul Faraid) has classified these numbers into: TAMASUL and TAKALHUF, the latter is sub-clas- sified into: takalhuf-i-tadakhul, takalhuf-i-tabayon, and takalhuf-i- tawafhug. I. Tamasul When the numbers of the denominators of the fixed or appointed shares of the sharers are EQUAL to each other or are the same, i.e., 2, 2; 3, 3; 4, 4; or 6, 6; the technique is to use the same number as the very root of the problem (R.P.) and divide the denominator of the fixed or appointed shares of each sharer by the same number. Illustrative examples: A wife died and is survived by her husband, and her full sister. The appointed or fixed shares of the husband is 1/2 and the full sister is also 1/2. The common denominator is number 2. The root of the problem °r common factor therefore is number 2. (R.P.) Thus: RP. = 2; 2 divided by 2 = 1 share of the husband; and 2 divided by 2 = 1 share of the full sister.c IM PERSONAL Laws IENTARIES ON THE CODE OF MUSL I ‘ ‘ oe hie PHILIPPINES WITH JURISPRUDENCE & SPECIAL PROCE) yp, The surviving husband and the full sister divides th, into two the estate, one-half pertaining to the former ag hi, and the other half to the full sister as her share. Il. Takalhuf When the denominators of the appointed or fixed shares of the sharers are dissimilar or disproportionate to each other, ang Which is further sub-classified into three: erefo 'S share ILa. Takalhuf-i-Tadakhul. — When the numbers of the de. nominators of the fixed or appointed shares of the sharers are UN. EQUAL, but are PROPORTIONATE to each other in terms of their ratio and the bigger number is divisible by the smaller number with. out any remainder, i.e., 2,4; 2,6; 2,8; etc., to get the root of the prob. Jem we simply use the bigger number as between those numbers ag the root of the problem; i.e., 2,4 = 4 R.P.; 2,6=6R.P.;2,8=8 RP. Illustrative example: A man died leaving behind as heirs his surviving wife and a full sister. The fixed or appointed share of the wife is 1/4; while that of the full sister is 1/2. The denominators of their respective shares are 2 and 4. Applying the principle of takhaluf-i-tadakhul, we simply use the higher number which is 4 as the root of the problem. (R.P.). Thus: RP.=4 4 divided by 4 = 1 share of the wife; 4 divided by 2 = 2 share of the full sister; 4-3=1 residue. ILb. Thakaluf-i-tabayon. — When the denominators of the appointed or fixed shares of the shares are not only disproportionate but also contradictory to each other or consist of odd and even numbers, i.e., 2, 3; 3, 4; to get the root of the problem (R.P.) simply multiply both numbers, te, 2x3=6RP;3x4=12RP. Illustrative example: A woman died leaving as the only heirs her mother and a full sister. The fixed or appointed share of the mother is 1/3, while that of the full sister is 1/2. To get the root of the problem, simply, multiply the denominators of their respective shares which is 3 and 2, and the result which is 6 is the root of the problem. (R.P.)WILLS AND SUCCESs| ION 765 : BOOK THREE — SUCCESSION Title IV — Settlement and Partition of Estate Thus: RP. =6. 6 divided by 3 = 2 share of the mother; 6 divided by 2 = 3 share of the full sister; 6—5=1 residue. ILc. Takhaluf-tawafug. — When the denominators of fixed - appointed shares of the sharers are even numbers which are not divisible with one another, i.e., 4, 6; 6, 8; but can however, be reconciled by finding for the smallest number (divisor) that could divide either of the denominators of the fixed or appointed shares ofthe sharers without leaving any remainder and the result thereof multiplying it with the denominator of the other fixed share in order to get the root of the problem. Illustrative example: A woman died leaving as heirs the following: (1) surviving husband; (2) her father; and (3) her son. The fixed share of the husband is 1/4; while the father is 1/6; and the son gets the residue. To get the root of the problem, we look for the smallest number that can divide the denominators (4, 6) of the husband or the father’s fixed share which in this example is number 2, (4 divided by 2 = 2; or 6 divided by 2 = 3). Then we multiply the quotient 2 or 3 with the denominator of the other fixed or appointed share which is number 4 or 6 (2 x 6 = 12; 3x 4 = 12), and the root of the problem is 12 (R.P.) Thus: R.P. = 12. 12 divided by 4 = 3 share of the husband; 12 divided by 6 = 2 share of the father; 34+2=5; 12 — 5 =7 residue, share of the son. Fourth: Convert the unit shares of the heirs into their money value. The problem may either be (a) A perfect or simple problem — adila) or (b) an imperfect or complex problem (tashedul ‘asala). leap: example of a Perfect Problem (Mas ala dila). — A man died saving the following heirs: surviving wife, father, mother, son. The sed net estate after deducting all lawful charges against hisWY E CODE OF MUSLIM PERSONAL Law; TH! 766 COMMENTARIES ON RISPRUDENCE & SPECIAL PROCED UR OF THE PHILIPPINES WITH JU! 000.00. Convert the unit shares of th le estate, is Php3,000, ae i ey equivalent. heirs into their peso or mont ‘The fixed sharers and their shar (1) wife 1/8 (Art. 112); (2) father 1/6 (Art. 113); (3) mother 1/6 (Art. 114) Residuary — Son and daughter, 126[a]; in relation to Article 122). There are two methods of solving the problem, (1) the direct oy short cut method, or (2) the standard or common method. The Direct or Shortcut Method: es are: entitled to the residue (Ay, hp 3,000,000.00 net estate = Php 375,000.00 share of the Php 3,000,000.00 net estate. 8 unit shares wife Php 3,000,000.00 = Php 500,000.00 share of the 6 unit shares father Php 3,000,000.00 = Php 500,000.00 share of the 6 unit shares mother Php375,000.00 + Php500,000.00 + Php500,000.00 = php1,375,000.00 Php3,000,000.00 — Php1,375,000.00 = Php1,625,000.00 residue will go to the son. Standard or Common Method The root of the problem (R.P.) is 24 (takalhuf-i-tawafug; the | numbers involved are 6 (1/6 of the father or mother) and 8(1/8 of the wife) thus, reduced number 6 to its lowest fraction which is 3,0" | number 8, which is 4, then multiply either number with the divisor of the other remaining fractional share, i.e., 3 x 8 = 24; 4x 6= 4, and the root of the problem is 24 (R.P.) | Thus: | 4 3 share of the wife 24 8 re = 4 share of the fatherWILLS AND succrs; SION BOOK THREE — g Tile TV ~ Settler, SUCCESSION and Partition of Estate 167 add the sharers share: 8+4+4=11 24 — 11 = 13 residue which will i Lorie UI go to the lone residuary the heirs individual shares in it; Thus: Php3,000,000.00 = Php125,000.00 money/peso 24 equivalent of one (1) unit share Php125,000.00 x 3 = Php375,000.00 share of the wife Php125,000.00 x 4 = Php500,000.00 share of the father Php125,000.00 x 4 = Php500,000.00 share of the mother Php375,000.00 + Php500,000.00 + Php500,000.00 = Php1,375,000.00 Php3,000,000.00 — Php1375,000.00 = Php1,625,000.00 residue which will go to the lone residuary heir the son as his share. S money or peso equivalent. Imperfect or Complex Problem Example of Imperfect or Complex Problem; The Doctrine of Correction (“Tashe” or tashedul masala). — Doctrine of correction comes into use when upon totalling all the units of the shares of all the heirs, it so happen that the share of an heirs co-existing with the other heirs be lesser or different from the lawfully fixed or appointed shares as ordained under the Islamic Law. In such case, the Sunni lawyers have devised a formula known as “Tashe” of correcting the Situation so as to make it conform with what has been prescribed in the Holy Quran. When there is no need to make such correction, itis considered a perfect problem (mas-ala-dila). (See illustrative ‘xample preceding hereof.) “ i i Tashedul Ilustrative Example of Doctrine of Correction (' ‘4 ‘“sala) in imperfect or complex problem. — A man died leaving as irs, his surviving wife, daughter, mother, and four (4) full sisters. * deducting all the charges against his gross estate, his net768 COMMENTARIES ON THE CODE OF MUSLIM PERSONAL LAws OF THE PHILIPPINES WITH JURISPRUDENCE & SPECIAL PROCEDURE estate is Php2,400,000.00. Determine the respective share of th heirs and convert them into their peso or money equivalent. it The fixed or appointed share of the surviving heirs of the deceased are as follows: surviving wife, 1/8; mother, 1/6; daughter. 1/2; and four (4) full sisters, gets entitled to the residue. i Shortcut Method: Php2,400,000.00 = Php300,000.00 share of the wife 8 Php2,400,000.00 = Php400,000.00 share of the mother Php1,200,000.00 share of the daughter 6 Php2,400,000.00 2 Php300,000.00 + Php400,000.00 + Php1,200,000.00 = Php1,900,000.00 Php2,400,000.00 — Php1,900,000.00 = Php500,000.00 residue Php500,000.00 = Php125,000.00 each 4 (full sisters) Php500,000.00 = four (4) full sisters Standard or Common Method: R.P. = 24 (Takalhuf-i-tawafuq), the numbers are 6 and 8; 6 divided by 2 = 3; or 8 divided by 2 = 4; 3 x 8 = 24; or 4x 6 = 24 (R-P.) 24 = 3 share of the wife 8 4 = 4 share of the mother % = 12 share of the daughter 3+4+12=19 24_ —19+5 Residue share of the four (4) full sisters 5 = = not divisibleWILLS AND SUC ; BOOK THREE _ Sue Title IV — Settlement and Partiti 01 769 oe n of Estate Hence, apply the doctrine of Correction (Tashe), in which case je have to use a new root of {} : we ave. ae © problem i i multiplying the original root of the problem whign wena a with the number o odies which is 4 (four full sisters), and we hi e anew root of the problem which is number 96. (New R. P) ven Thus: <> = 12 share of the wife; = 48 share of the daughter; =~ = 16 share of the mother; 12+ 48+ 16= 76; 96 — 76 = 20 residue; share of the four (4) full sisters 20. = 5 Each full sister gets five unit share each from 4 the residue To convert their unit shares to their money equivalent we add them together and the result, we divide it with the total net estate of the decedent. Thus: 12+48+16+20=96 Php2,400,000.00 = Php25,000 per unit share 96 Php25,000.00 x 12 unit shares of the wife = Php300,000.00 share of the wife Php25,000.00 x 16 unit shares of the mother = Php400,000.00 share of the mother Php25,000.00 x 48 unit shares of the daughter = Php1,200,000.00 Php300,000.00 + Php400,000.00 + Php1,200,000.00 = Php1,900,000.00 Php2,400,000.00 - Php1,900,000.00 = Php500,000.00 Php500,000.00 = Php125,000.00 each 4 (full sisters) Php500,000.00 = four (4) full sisters