Two heirs die in the same accident

No mutual inheritance. al-Sarakhsi opens the chapter on those who die by fire or drowning by reporting agreement among Abu Bakr, ‘Umar and Zayd b. Thabit that where it is not known which died first, “none of them inherits from another; the estate of each is simply made over to his own living heirs”. He grounds it in practice rather than theory: Zayd ruled this way over the fallen of al-Yamama when Abu Bakr sent him to divide their estates, over those who died in the plague of ‘Amwas when ‘Umar sent him, and over the slain of al-Harra; and the same is reported of ‘Ali over the dead of the Battle of the Camel and of Siffin. He notes that the contrary report from ‘Ali and Ibn Mas‘ud exists, and that the majority of jurists took the first view. The Hanafi reason is the general principle that entitlement is not established by doubt.

Sources: al-Mabsut, Bab al-Harqa wa’l-Gharqa — “ittafaqa Abu Bakrin al-Siddiqu wa ‘Umaru bnu’l-Khattabi wa Zaydu bnu Thabitin fi’l-gharqa wa’l-harqa idha lam yu‘lam ayyuhum mata awwalan annahu la yarithu ba‘duhum min ba‘din, wa innama yuj‘alu mirathu kulli wahidin minhum li-warathatihi al-ahya’”, with Zayd’s rulings on the slain of al-Yamama (sent by Abu Bakr), the dead of ‘Amwas (sent by ‘Umar) and the slain of al-Harra, and ‘Ali’s on the Camel and Siffin (Muhammad b. Ahmad al-Sarakhsi (d. c. 483 AH)) · al-Mawsu’a al-Fiqhiyya, entry “Irth” §124, “mirath al-gharqa wa’l-harqa wa’l-hadma” — quoting al-Sarakhsi: Abu Bakr, ‘Umar and Zayd b. Thabit agreed that where it is not known which of them died first “la yarithu ba‘duhum min ba‘d”, each estate going to his own living heirs; Zayd so ruled over the slain of al-Yamama, the dead of the plague of ‘Amwas and the slain of al-Harra, and ‘Ali over the slain of the Camel and Siffin; “wa bihi akhadha jumhuru al-fuqaha’” — against a second report from ‘Ali and Ibn Mas‘ud that they DO inherit from one another except as to what each inherited from the other (Ministry of Awqaf and Islamic Affairs, Kuwait) · al-Mawsu’a al-Fiqhiyya, “Irth” §124 cont. — the reasoning on both sides: for the minority, each one’s life is known and only the ground of exclusion is doubtful, so “al-yaqinu la yazulu bi’l-shakk”, the reciprocal portion alone being excepted out of necessity to stop the circle; for the majority, the ground of ENTITLEMENT is what is not certain, and “al-istihqaqa la yathbutu bi’l-shakk” (Ministry of Awqaf and Islamic Affairs, Kuwait) · al-Mughni, mas’ala 4963 cont. — the other camp, named: “wa Abu’l-Zinadi wa’l-Zuhriyyu wa’l-Awza‘iyyu wa Malikun wa’l-Shafi‘iyyu wa Abu Hanifata wa ashabuhu”, holding that neither inherits from the other; the reports of Zayd, Ibn ‘Abbas, Mu‘adh and al-Hasan b. ‘Ali to the same effect; the athar that Umm Kulthum bint ‘Ali and her son Zayd b. ‘Umar died “fa-lam yudra ayyuhuma mata qabla sahibihi, fa-lam tirthhu wa lam yirthha”; the argument that the condition of inheriting is the heir’s life after the deceased and it is not known, “ka’l-hamli idha wada‘athu mayyitan”; and Abu Thawr, Ibn Surayj and a group of the Basrans holding that each heir is given the certain minimum and the doubtful part suspended (Ibn Qudama al-Maqdisi (d. 620 AH)) — al-Sarakhsi’s own chapter, with the Mawsu’a reproducing it and Ibn Qudama independently naming Abu Hanifa and his companions on this side.

No mutual inheritance — and the school makes it a formal bar. Khalil’s text, as al-Dardir reads it, is that “one whose death is not known to have come later” than his relative’s does not inherit — the example given is precisely two people dying under a collapsed building, or in a plague in one place, with no way of telling who went first. The consequence is stated as a rule of reckoning: “each is supposed not to have survived the other, but to have left only the living among his own heirs”. al-Dasuqi adds that Khalil’s words cover both cases — whether they died together or one after the other with the order unknown. Distinctively, the Malikis are the one school to list ignorance of the order of death among the impediments to inheritance in its own right, alongside slavery, killing and difference of religion. The school also keeps this case out of the law of munasakha altogether: al-Dasuqi says expressly that where they died in one instant by collapse or drowning, it is not called munasakha.

Sources: al-Sharh al-Kabir li’l-Dardir with Hashiyat al-Dasuqi, [Mawani‘ al-Mirath] — one page carrying three Maliki rules: no inheritance for “man juhila ta’akhkhuru mawtihi”; “wa waqafa al-qasma li’l-haml”, the whole division suspended until birth (al-Dasuqi: “wa ma dhakarahu al-musannifu min waqfi al-qasmi huwa al-mashhuru min al-madhhab, wa qala Ashhab: yata‘ajjalu adna al-sahmayn”); and “wa waqafa malu al-mafqudi li’l-hukmi bi-mawtihi ba‘da zamani al-ta‘mir … hal huwa sab‘una sanatan aw khamsun wa sab‘una aw thamanun”, with the missing man reckoned both alive and dead and “u‘tiya al-warithu ghayru al-mafqudi aqalla nasibihi wa wuqifa al-mashkuku fih” (Ahmad al-Dardir (d. 1201 AH) with Muhammad b. Ahmad al-Dasuqi (d. 1230 AH)) · al-Mawsu’a al-Fiqhiyya al-Kuwaytiyya, entry “Irth” §15, mawani‘ al-irth — “wa mawani‘u al-irthi al-muttafaqu ‘alayha bayna al-a’immati al-arba‘ati thalathatun: al-riqqu, wa’l-qatlu, wa’khtilafu al-din”, with three more disputed (apostasy, difference of territory, the circular case); and “wa ‘inda al-Malikiyyati mina al-mawani‘i jahlu ta’akhkhuri mawti al-warithi ‘an mawti al-muwarrith” — the Malikis alone counting ignorance of the order of death as an impediment in its own right (Ministry of Awqaf and Islamic Affairs, Kuwait) · al-Sharh al-Kabir li’l-Dardir with Hashiyat al-Dasuqi, [al-Munasakha] — “hadha al-lafzu yasta‘miluhu al-farradu fi’l-faridati allati fiha mayyitani fa-akthar wahidun ba‘da wahidin qabla qasmi tarikati al-awwal”, in three sections of which the first needs no working; and al-Dasuqi’s gloss expressly excluding from munasakha both those who died “bi-fawrin wahidin bi-hadmin aw gharaq” and a second death occurring AFTER the first estate was divided (Ahmad al-Dardir (d. 1201 AH) with Muhammad b. Ahmad al-Dasuqi (d. 1230 AH)) · al-Mughni, mas’ala 4963 cont. — the other camp, named: “wa Abu’l-Zinadi wa’l-Zuhriyyu wa’l-Awza‘iyyu wa Malikun wa’l-Shafi‘iyyu wa Abu Hanifata wa ashabuhu”, holding that neither inherits from the other; the reports of Zayd, Ibn ‘Abbas, Mu‘adh and al-Hasan b. ‘Ali to the same effect; the athar that Umm Kulthum bint ‘Ali and her son Zayd b. ‘Umar died “fa-lam yudra ayyuhuma mata qabla sahibihi, fa-lam tirthhu wa lam yirthha”; the argument that the condition of inheriting is the heir’s life after the deceased and it is not known, “ka’l-hamli idha wada‘athu mayyitan”; and Abu Thawr, Ibn Surayj and a group of the Basrans holding that each heir is given the certain minimum and the doubtful part suspended (Ibn Qudama al-Maqdisi (d. 620 AH)) — al-Dardir and al-Dasuqi directly, with the Mawsu’a’s statement that this is a Maliki-specific impediment and Ibn Qudama naming Malik on this side.

No mutual inheritance — and the school sorts the problem into five cases. al-Nawawi’s text reads: “if two who would inherit from one another die by drowning, or by a collapse, or abroad, together, or it is not known which was earlier, they do not inherit from each other, and the property of each goes to the rest of his heirs”. al-Shirbini spells out the five situations. Known simultaneity, ignorance of both simultaneity and order, and ignorance of which one was first: in all three, each estate goes to that person’s own remaining heirs, “so it is supposed, as to each of the dead, that he did not survive the other”. Where the order is known and the first identified, the estates are simply divided in that order. Where the first was identified and then the identification became confused, the inheritance is suspended until it is clarified or the parties settle. The school’s reasons are given as three: the condition of inheriting is the heir’s certain survival, and here it is absent, as with a child born dead; inheriting one and not the other would be arbitrary; and inheriting both from each other is certainly wrong, because either they died together (making a dead man inherit from a dead man) or one preceded (making the earlier inherit from the later).

Sources: Mughni al-Muhtaj, Kitab al-Fara’id, mawani‘ al-irth — one page carrying two of the impediments. THE KILLER, at his widest: “wa sawa’un akana al-qatlu ‘amdan am ghayrahu, madmunan am la, bi-mubasharatin am la, qasada maslahatahu ka-darbi al-abi wa’l-zawji wa’l-mu‘allimi am la, mukrahan am la”, with the minority “wa qila in lam yudman … waritha”; the two grounds being the fear that an heir will hasten his inheritance and that killing severs the bond which causes inheriting; and the note that the victim DOES inherit from his killer, on which “la khilafa fihi”. UNCERTAINTY AS TO THE TIME OF DEATH: “wa law mata mutawarithani bi-gharaqin aw hadmin aw fi ghurbatin ma‘an aw juhila asbaquhuma lam yatawaratha wa malu kullin li-baqi warathatihi”, with al-Shirbini’s five cases — known simultaneity, known order with a known first, ignorance of both, ignorance of which was first, and confusion after the first was known — the last suspended “ila al-bayani aw al-sulh”, the second divided normally, and the other three giving each estate to his own remaining heirs, because “fa-yuqaddaru fi haqqi kulli mayyitin annahu lam yukhallif al-akhar” (al-Khatib al-Shirbini (d. 977 AH)) · al-Mughni, mas’ala 4963 cont. — the other camp, named: “wa Abu’l-Zinadi wa’l-Zuhriyyu wa’l-Awza‘iyyu wa Malikun wa’l-Shafi‘iyyu wa Abu Hanifata wa ashabuhu”, holding that neither inherits from the other; the reports of Zayd, Ibn ‘Abbas, Mu‘adh and al-Hasan b. ‘Ali to the same effect; the athar that Umm Kulthum bint ‘Ali and her son Zayd b. ‘Umar died “fa-lam yudra ayyuhuma mata qabla sahibihi, fa-lam tirthhu wa lam yirthha”; the argument that the condition of inheriting is the heir’s life after the deceased and it is not known, “ka’l-hamli idha wada‘athu mayyitan”; and Abu Thawr, Ibn Surayj and a group of the Basrans holding that each heir is given the certain minimum and the doubtful part suspended (Ibn Qudama al-Maqdisi (d. 620 AH)) — Mughni al-Muhtaj on al-Nawawi’s Minhaj, with Ibn Qudama independently naming al-Shafi’i on this side.

Yes — they do inherit from each other, but only out of each one’s own original property. This is the school’s settled text and it is genuinely the odd one out. al-Khiraqi writes: “when two who inherit from one another drown, or die under a collapse, and it is not known which died first, they inherit from one another”, and Ibn Qudama reports Ahmad’s own words — “I hold the view of ‘Umar, ‘Ali, Shurayh, Ibrahim and al-Sha‘bi: they inherit from one another” — adding at once the limit that makes it workable: from his old property, not from what he inherited from the one who died with him. al-Buhuti gives the same limit and the reason: otherwise the calculation would go round in a circle. The working is: suppose one of them died first, let the other inherit from him, then divide what he thereby inherited among that other’s living heirs — then do the same supposing the reverse. The authority is a letter of ‘Umar during the plague of ‘Amwas, when whole households were dying: “let them inherit from one another”. Two limits matter. The rule applies only where the order of death is genuinely unknown and the heirs are not disputing it — if each side’s heirs claim their man died last, Ahmad’s ruling is that each swears against the other’s claim and keeps his own man’s estate. And where the two are known to have died in the same instant, Ibn Qudama says the Hanbalis agree with everyone else: “neither inherits from his fellow”, because the condition of surviving him is known to be absent.

Sources: al-Mughni, Kitab al-Fara’id, mas’ala 4963 — al-Khiraqi’s text: “wa idha gharaqa al-mutawarithani, aw mata tahta hadmin, fa-juhila awwaluhuma mawtan, waritha ba‘duhum min ba‘d”; Ibn Qudama: “fa-inna Ahmada qala: adhhabu ila qawli ‘Umara wa ‘Aliyyin wa Shurayhin wa Ibrahima wa’l-Sha‘bi: yarithu ba‘duhum min ba‘d — ya‘ni min tiladi malihi duna tarifihi, wa huwa ma warithahu min mayyitin ma‘ahu”; and al-Sha‘bi’s report that when the plague of ‘Amwas struck, ‘Umar wrote “an warrithu ba‘dahum min ba‘d” (Ibn Qudama al-Maqdisi (d. 620 AH)) · al-Mughni, mas’ala 4963 cont. — the other camp, named: “wa Abu’l-Zinadi wa’l-Zuhriyyu wa’l-Awza‘iyyu wa Malikun wa’l-Shafi‘iyyu wa Abu Hanifata wa ashabuhu”, holding that neither inherits from the other; the reports of Zayd, Ibn ‘Abbas, Mu‘adh and al-Hasan b. ‘Ali to the same effect; the athar that Umm Kulthum bint ‘Ali and her son Zayd b. ‘Umar died “fa-lam yudra ayyuhuma mata qabla sahibihi, fa-lam tirthhu wa lam yirthha”; the argument that the condition of inheriting is the heir’s life after the deceased and it is not known, “ka’l-hamli idha wada‘athu mayyitan”; and Abu Thawr, Ibn Surayj and a group of the Basrans holding that each heir is given the certain minimum and the doubtful part suspended (Ibn Qudama al-Maqdisi (d. 620 AH)) · al-Mughni, fasl 4964 — the limit of the Hanbali rule: “wa in ‘ulima khuruju ruhihima ma‘an fi halin wahidatin, lam yarith ahaduhuma sahibahu, wa waritha kullu wahidin al-ahya’a min warathatihi; li-anna tawrithahu mashrutun bi-hayatihi ba‘dahu, wa qad ‘ulima intifa’u dhalik”; and where one is known to have died first but which is then unclear, “u‘tiya kullu warithin al-yaqin, wa wuqifa al-baqi hatta yatabayyana al-amru aw yastalihu” (Ibn Qudama al-Maqdisi (d. 620 AH)) · Kashshaf al-Qina’, Bab Mirath al-Gharqa wa man ‘Umiya Mawtuhum — “idha mata mutawarithani bi-gharaqin, aw hadmin … aw ghayri dhalika (ka-ta‘un), wa juhila awwaluhuma mawtan, aw ‘ulima thumma nusiya, aw jahilu ‘aynahu, wa lam yakhtalifu fi’l-sabiq … waritha kullu wahidin min al-mawta sahibahu”, on the rulings of ‘Umar and ‘Ali (Mansur b. Yunus al-Buhuti (d. 1051 AH)) · Kashshaf al-Qina’, same chapter — the limit: each takes “min tiladi malihi”, the old property he owned when he died, “duna ma warithahu min al-mayyiti” who died with him, “li-alla yadkhulahu al-dawr”; the working (“fa-yuqaddaru ahaduhuma mata awwalan, fa-yurathu al-akharu minhu, thumma yuqsamu ma warithahu minhu ‘ala al-ahya’i min warathatihi, thumma yusna‘u bi’l-thani kadhalik”); and Ahmad’s own words, “adhhabu ila qawli ‘Umar” (Mansur b. Yunus al-Buhuti (d. 1051 AH)) — al-Khiraqi’s Mukhtasar with al-Mughni’s commentary, corroborated from Kashshaf al-Qina’.