15 - Chapter on a newborn who cries out and then dies

2920 - Husayn ibn Mu‘adh narrated to us, ‘Abd al-A‘la narrated to us, Muhammad — meaning Ibn Ishaq — narrated to us, from Yazid ibn ‘Abd Allah ibn Qusayt, from Abu Hurayrah, from the Prophet, peace and blessings be upon him, who said: "If a newborn cries out, he is entitled to inheritance."

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He said: And I heard Abu al-Walid Hassan ibn Muhammad mention that the client-status (wala') which Maymunah had gifted was the client-status of a sa'ibah (a freed slave with no ties of patronage), and the client-status of a sa'ibah has been a matter of scholarly disagreement.

We say: This Hassan ibn Muhammad was given a biographical entry by al-Dhahabi in "Siyar A'lam al-Nubala'" 15/492, and he described him as: the unique imam, the hafiz, the mufti, the shaykh of Khurasan, the Shafi'i ascetic.

(1) A sound hadith, and this chain is good were it not for the tadlis (concealment) of Muhammad ibn Ishaq. It has also been narrated through another route from Abu Hurayrah. 'Abd al-A'la: he is Ibn 'Abd al-A'la al-Sami.

Al-Bayhaqi also transmitted it in 6/257 via the route of Abu Dawud, with this chain, and said: Ibn Khuzaymah also narrated it from al-Fadl ibn Ya'qub al-Jazari, from 'Abd al-A'la, with this chain, similarly.

Al-Bayhaqi also transmitted it in 6/257 via the route of Sa'id ibn al-Musayyab, from Abu Hurayrah, who said: It is from the sunnah that a newborn who dies at birth is not entitled to inherit nor is he inherited from until he cries out aloud. And its chain is acceptable.

It has a supporting witness from the hadith of Jabir ibn 'Abd Allah and al-Miswar ibn Makhramah in Ibn Majah (2751).

Al-Khattabi said: His statement "cries out" (istahalla) means he raised his voice by screaming or crying, and whoever raises his voice with something has "istahalla" with it.

I [the speaker is al-Khattabi] say: The meaning of istihlal here is that a sign of life is found in the newborn. If it so happens that he does not cry out — which is raising the voice — but there occurs from him movement, or sneezing, or breathing, or something that can only occur from a living being, then he is entitled to inheritance, due to the presence of what indicates life in him. This is the view adopted by Sufyan al-Thawri, al-Awza'i, and al-Shafi'i, and I think it is the view of Abu Hanifah and his companions. Malik ibn Anas said: He has no inheritance even if he moves or sneezes, as long as he does not cry out.

And it is narrated from Muhammad ibn Sirin, al-Sha'bi, al-Zuhri, and Qatadah that they said: A newborn is not entitled to inheritance until he cries out.