He—may Allah Most High have mercy on him—was asked:

Concerning an orphan’s executor who traded for the orphan and for himself using his money: he bought a type of merchandise for the orphan, then sold it and made another purchase for him with the proceeds. Later, he purchased the aforementioned merchandise and died without specifying whether it belonged to one of them or to them both. Does the merchandise belong to the executor’s heirs or to the orphan?

He replied:

If it is known that he purchased it entirely with his own money or entirely with the orphan’s money, then it belongs to one of them. The matter should be investigated to determine whether its ownership can be established by ascertaining how much money belonged to the orphan and how much belonged to the executor, and by examining the account books, his handwritten records, and similar evidence. If the orphan’s property was distinguishable—for example, through his recording what he purchased for him, or something similar—it would be among the items he had not recorded as his own.

If it proves impossible by any means to determine who is entitled to it, the jurists have three opinions:

The first is that it should be divided between them, as Abū Hanīfah held, just as when two people each claim ownership of an item in their joint possession.

The second is that the matter should be left pending until they reach a settlement, as al-Shāfiʿī held, because one of them is entitled to it, but it is not known which.

The third, which is Ahmad’s position, is that lots should be drawn between them; whoever wins the draw must swear an oath and then take it. This is based on the report in the Sunan collections:

Abū Hurayrah—may Allah be pleased with him—reported that two men brought a dispute over some goods before the Prophet—may Allah bless him and grant him peace—and neither had any evidence. The Prophet—may Allah bless him and grant him peace—said, “Draw lots over it.”

It was narrated by Abū Dāwūd and al-Nasāʾī. In another wording narrated by Abū Dāwūd:

“If both are unwilling to swear the oath, or both wish to swear it, let them draw lots over it.”

Al-Bukhārī also narrated it, with the wording:

“The Prophet—may Allah bless him and grant him peace—offered a group of people the opportunity to swear an oath. They hastened forward, so he ordered that lots be drawn between them to determine which of them would swear.”

And Allah knows best.