he disposes of it, he knows that he is not entitled to it, since the debt takes precedence over the bequest. Thus, the executor is like an heir, who is liable.
His statement: “If he says, ‘Place my third wherever you wish,’ it is not lawful for him or for his child.” An example is where a person appoints someone as executor and says: “Place my third wherever you wish,” or says: “Apply my third to the repayment of debts.” When the man dies, it is not permissible for the executor to take anything from this third, nor is it permissible for his child to take anything from it. For had the testator wished to benefit the executor, he would have said, “I bequeath it to you,” rather than, “I appoint you as my executor.” Nor is it lawful for his child to take from it, because the executor is subject to suspicion: he may show favoritism to his child and direct the money to him, while someone else is more entitled to it. For this reason, the scholars, may Allah have mercy on them, said that it is not permissible for an agent or executor to allocate anything to himself or to any of his children. Some of them generalized this further, saying: nor to anyone whose testimony is not accepted in his favor. Thus, they broadened the ruling.
But suppose someone were to say: In the case of agency, if the agent desires this item and puts it up before the people for bidding, until the final bid is made by the agent himself, may he take it?
According to the jurists’ position, no. The correct view, however, is that if the ground for suspicion has been removed, then he is like anyone else. This is from the standpoint of legal reasoning. As for practical application—especially in our time—the agent or executor should be prevented altogether from allocating the item to himself or to any of his descendants, male or female. The reason is suspicion: would he not be keen to place this item where it belongs?
We have mentioned that when the ground for suspicion is removed—for example, when the agent puts the item up for public auction and bids on it—the established school holds that it is invalid, even in this case.