one-third.” Had we taken the better course into account, we would have said, “So-and-so has no more than one-fifth.” Would that the author—may Allah have mercy on him—had said, “and distributing his fifth,” or at least, “and distributing whatever he has bequeathed.” For if he says, “one-third,” people will become accustomed to one-third.
His statement, “and looking after his minor children”: looking after minor children is likewise a known disposition. Thus, he may say, “So-and-so is the executor over my minor sons and daughters.” This is permissible, and this executor becomes responsible for the children, attending to their interests: their maintenance, clothing, upbringing, and housing.
Does he have the authority to appoint someone by will to marry off his daughters?
The authoritative position of the school is that he does. Thus, he may say, “So-and-so is the executor for the marriage of my daughters.” Even if they have full brothers, the brothers may not marry them off, because guardianship in marriage is acquired through appointment by will. However, this view is very weak, because guardianship in marriage is an independent form of guardianship. It belongs to a person during his lifetime, and when he dies, it passes to the one who is legally most entitled to it. Therefore, according to the stronger view, guardianship in marriage is not acquired through appointment by will.
Our statement that it is not acquired through appointment by will implies that it is acquired through kinship. Thus, if he appoints his daughters’ eldest full brother by will to marry them off, this is valid, because after him, he is their guardian—except for a daughter who has married and borne children, for her sons are her guardians.
Thus, the stronger view regarding marriage is that the appointed executor does not have the authority, by virtue of this appointment, to marry them off. But if we wish to act in accordance with both the stronger view and the authoritative position of the school, what should we do? For we face a difficulty: if the executor—who is unrelated to them—marries them off, then according to the school