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English translation
2732. It was narrated from 'Amr bin Shu'aib, from his father, that his grandfather said: "Rabâb bin Hudhaifah (bin Sa'eed) bin Sahm married Umm Wâ'il bint Ma'mar Al-Jumahiyyah, and she bore him three sons. Their mother died and her sons inherited her houses and the Walâ' of her freed slaves. 'Amr bin 'Âs took them out to Shâm, and they died of the plague of Amwâs. 'Amr inherited from them, and he was their Asabah.[2] When 'Amr bin 'Âs came back, Banu Ma'mar came to him and they referred their dispute with him concerning the Walâ' of their sister to 'Umar. 'Umar said: 'I will judge between you according to what I heard from the Messenger of Allâh ﷺ. I heard him say: "What the son or father acquires goes to his Asabah, no matter who they are.'" So he ruled in our favor and wrote a document to that effect, in which was the testimony of 'Abdur-Rahmân bin 'Awf, Zaid bin Thâbit and someone else. Then when 'Abdul-Malik bin Marwân was appointed caliph, a freed slave of hers (Umm Wâ'il's) died, leaving behind two thousand Dinâr. I heard that that ruling had been changed, so they referred the dispute to Hishâm
bin Ismâ'il. We referred the matter to 'Abdul-Malik, and brought him the document of 'Umar. He said: 'I thought that this was a ruling concerning which there was no doubt. I never thought that the people of Al-Madinah would reach such a state that they would doubt this ruling. So he ruled in our favor, and it remained like that afterwards.'" (Hasan)
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Footnotes
1
[1] See no. 2712.
2
[2] Normally Asabah refers to the remaining male relatives of the deceased on the father's side.
Commentary
Inheritance is first distributed among the Ashâbul-Furudh according to their fixed shares, and whatever remains from the legacy is distributed among the 'Asabah'. If a freed slave does not have any 'Asabah' relatives then the one who has freed the slave becomes his 'Asabah', and if the freed slave does not have 'Ashâbul-Furudh' nor 'Asabah', then the one who has freed the slave becomes the sole heir of the slave.
Walâ' of Umm Wâ'il was given to her sons. After the death of her sons, Walâ' remained in the same bloodline family, meaning that it remained in Umm Wâ'il's in-laws' family. Umm Wâ'il's family or her children's maternal family's law suit was rejected.
In the presence of 'Asabah', relatives from the side of the wife do not become heirs.
