by his statement, “and they request a division of the estate,” that they may either refrain from requesting a division and say, “We will wait until the fetus is delivered and we know [its status],” or they may request a division. If they request a division, are they granted their request, or are they told, “Wait until the fetus is delivered”? The answer is that their request is granted, because the property belongs to them. Once the deceased dies, his property becomes the property of the heirs. Thus, if they request a division, they are granted it. If some request it while others refuse, the one requesting it is granted his request, because he is a co-owner and may say, “I wish to dissolve the joint ownership and take possession of my inheritance independently.” Thus, his request is granted.
Accordingly, his statement, “and they request a division of the estate,” means that if they—or even one of them—request a division, it is granted. But what is to be done about the fetus? He says:
“The larger of the shares of two males or two females is reserved for the fetus.” Sometimes the larger share is that of two males, and sometimes it is that of two females. If the prescribed shares exceed one-third, the larger share is that of two females, because two-thirds will remain for them. But if the prescribed shares are less than one-third, the larger share is that of two males. For if they were two females, they would receive two-thirds and the remainder would go to the residuary heir; whereas, if they were two males, the remainder would belong to them. This is a governing principle, and it becomes clear through examples.
A man dies leaving behind a pregnant wife and two sons. In every case, the wife receives one eighth, whether the fetus is delivered alive or dead, because her share cannot exceed one eighth due to the presence of two children. As for the fetus, should we reserve for it the share of two females, two males, one male, or one female? The answer is: the share of two males. For if we reserve the share of two males, the two existing sons receive half of the remainder, because he is deemed to have died leaving four sons: the two sons