Section
On the Fifth Question

If someone says, “I establish an endowment for my children”—naming them individually, male and female—and then adds, “and for their children,” daughters’ children are included according to the position of Mālik and all his earlier and later followers: Ibn Abī Zamanīn, Abū ʿUmar al-Ishbīlī, and those who followed them among our teachers whom we knew. The sole exception is what has been reported from Ibn Zarb. This is a manifest, baseless error and does not count as a dissenting position, for he did not reach it through his own independent judgment. Rather, he based it on an invalid analogy drawn from a view in which he followed someone else.

He had previously issued fatwas in accordance with the position of the scholars generally, including daughters’ children, until a case arose. He then said, “I found an account from Mūsā ibn Tāriq, the judge of Zabīd, stating that he asked Mālik about someone who established an endowment for his children and his children’s children. Mālik replied, ‘Daughters’ children are not descendants in this case.’ Mūsā asked him, ‘Do you know of any disagreement on this among the jurists of Medina?’ He replied, ‘I know of no disagreement among them on this.’” Ibn Zarb consequently retracted his former position and had witnesses attest to his retraction.

His position thereafter was that if someone said, “My house is an endowment for my sons so-and-so, so-and-so, and so-and-so, and my daughter so-and-so, and for their descendants and their descendants’ descendants,” the daughter’s children would receive nothing. He treated this like a man’s saying, “For my children and their descendants,” when those children include a female. He said, “The same applies if he says, ‘An endowment for my sons so-and-so and so-and-so, and my daughter so-and-so, and for their descendants,’ because the plural pronoun could refer to the two. It does not refer exclusively to the male, and daughters’ children are included only where their entitlement is beyond doubt.”

This is an arbitrary assertion unsupported by evidence. The position adopted by the scholars generally—that the pronoun refers to all of them, male and female—is correct, and no contrary position is tenable. For the apparent meaning of the founder’s wording is that the pronoun refers to everyone mentioned; therefore, one may not