Translation:Shulchan Aruch/Choshen Mishpat/246

Paragraph 1- We always assess the intention of the donor. If the circumstances indicate his ultimate intention, we would follow that intention, regardless of what he said. How so? If one’s son went overseas and he heard that the son died and he wrote his properties over to someone else in a clear and complete way, and subsequently his son comes back, his gift is not valid because the circumstances shows that had he known his son was alive he would not have written away all of his properties. Thus, if he retained any amount of property, whether real property or movable items, his gift would be valid.

Paragraph 2- There are those who say this rule only applies by a dying person, but not a healthy one. There are those who say it applies even by a healthy person.

Paragraph 3- There are those who say that the same is true where one writes all his properties to another because he needs to evade his creditors or his enemies, and he later settles with his creditors or enemies or they die. If it is clear that he only wrote this gift because of them, because the issue has passed and he needs his properties, the gift is void.

Paragraph 4- If one writes all his properties to one of his children, regardless of whether he was healthy or dying- there are those who say this is only where he used gift language, but if a dying person wrote using inheritance language, the son would acquire- and even if it was a child still in his crib, the father is just making the child a guardian and he has the same rights to the properties as any of his brothers. Even if the father elaborates with his language as is the practice with a document done well, by saying “you shall go, acquire, take possession,” the circumstances indicate that his intention was just that his brothers would listen to him. If the father retained any property, the son would acquire the gift, whether it was real property or movable items. If the father specified in the document that he was transferring a complete transfer and not as a guardian, he specified that the son could sell and give the properties to others, he transferred movable items via the real property or he transferred to him with a kinyan, or if every time the term “gift” was used in the document it is possible to prove that he intended a bona-fide gift, the son would acquire. If the father wrote that one son should be the ruler and officer on everything he has, that is not gift language but guardian language.

Paragraph 5- In any situation where there is ambiguity in the gift language whether the donor meant a bona-fide gift or not, the recipient has the burden of proof.

Paragraph 6- When is this true? Where one wrote to a son and he has other sons. If he wrote to a son, and he only has daughters, however, or if he wrote to a daughter and he has other daughters or other sons or one of his other inheritors and he has other inheritors, even if the donor did not retain anything, the gift would be valid. There are those who say that where he wrote to his daughter and he has other sons or daughters, she would not acquire.

Paragraph 7- There are those who say that if one writes all his properties to one of his sons and he has other sons and he gave with a kinyan and bolstered his rights, the son would acquire. There are those who say that even in such a case he would not acquire.

Paragraph 8- If the father said to write for the son and give to him all of his properties, but did not bolster his rights by saying give him all his properties and even write it for him, he would not even have made him a guardian.

Paragraph 9- If one wrote all his properties to one of his children and someone else, the other person would acquire half the property as a gift and the remaining half would belong to all his children and the son he gave to would be guardian over the other brothers.

Paragraph 10- There are those who say that if one wrote half his properties to his son and half to someone else, the half for the son would also be a gift. If he wrote 2/3 to his son and the remaining third to someone else, his son would only be a guardian.

Paragraph 11- If one wrote all of his properties to two of his sons, they would both be guardians. If he wrote half his properties and then half to another, the first one would be a gift and the second son would be a guardian on the remaining half for all the others. The first son who received half the properties would also have a portion on the remaining half, just like his brothers.

Paragraph 12- If one writes all his properties to his wife, he has only made her a guardian. The specifics of this rule are discussed in Tur Even Haezer Siman 107.

Paragraph 13- If one writes his properties to his children and writes any amount of real property to his wife, the law is discussed in the aforementioned Tur in Siman 106.

Paragraph 14- If one writes all his properties to his wife, and an earlier document is produced against him, the law is discussed in the aforementioned Tur in Siman 107.

Paragraph 15- The laws of a gift-document made only to evade are discussed in the aforementioned Tur in Siman 90.

Paragraph 16- The laws of a dying person who says his wife should take like one of his sons are discussed in the aforementioned Tur in Siman 108.

Paragraph 17- In all the cases where one gives all his properties and the gift is voided and the properties go back to the original owners, the gift-recipient does not need to return the fruits. If one tells another to eat with him, the invitee must pay him and we don’t say he is giving him a gift. Thus, if one feeds his son-in-law with his daughter for longer than the time that was set, the son-in-law must pay back the food when the father-in-law claims it, but he does not have to give back his wife’s food. This is only where there is no proof that he gave it as a gift. In a case where it is clear he gave it as a gift but later there was a quarrel between them and that is why he is making a claim, however, he would be exempt.