Translation:Shulchan Aruch/Choshen Mishpat/248

Paragraph 1- If someone is dying and said his properties should go to so and so and afterwards to so and so, the second person will only receive what the first recipient left over. If the first recipient was someone who was able to inherit the deceased, such as a son among other sons, the second recipient would not receive anything, even if the second recipient was also able to inherit, and similarly even if the second recipient consecrated after the first recipient, hekdesh would not receive anything because any term of gift when used for an inheritor has the status as a term of inheritance and there is no break to inheritance, even if the deceased said it should go to so and so after him. If the deceased made his will in a place where the custom is to litigate in secular courts and then they went to another place to litigate in Jewish courts, we do not say an inheritance has no break. If a healthy person gives a healthy-gift in this fashion, however, and he wrote, “my properties to you and after you to so and so,” the second recipient will only receive what the first person retained, even if the first person was fit to inherit him.

Paragraph 2- If one was dying and said, “my properties to you and after you to so and so,” and the first recipient was able to inherit him but the donor explicitly said the gift was not inheritance which has no break, but as a gift, which I am breaking, the second recipient would acquire what the first person leaves over. Thus, if one gave money via a third party and said give a shekel to my son each week but I am not giving it as inheritance, and the remaining properties after my children die should go to so and so, we would only give them a shekel, even if that does not suffice for them.

Paragraph 3- If one said, “my properties to so and so, and after him to so and so, and after him to so and so,” when the first recipient dies the second recipient will acquire, and when the second recipient dies the third recipient will acquire. If the second recipient died while the first was still alive, the properties would go the first recipient’s inheritors. The same applies with respect to the third and second recipient. Although we said the second recipient only receives what the first recipient leaves over, the first recipient is prohibited from selling or gifting the actual property and can only consume the fruits until he dies and then the second recipient will acquire. If the first recipient violated and sold or gifted the property, the second recipient cannot remove the property from the buyer because the second recipient has no rights to the actual property or the fruits, but only to what is remaining. Anyone who advises the first recipient to sell is called wicked. Even if the first recipient received slaves and freed them or received vessels and he used them as burial shrouds, his actions would be valid. If the donor gave properties to the first recipient for 10 years and after to so and so, and the first recipient sold them, the second recipient can remove the properties from the buyers because the donor did not give it to as a complete gift but only for a set time.

Paragraph 4- When is this true? Where the first recipient sold or gifted to others. If he sold or gifted to inheritors, however, it is of no effect. Similarly, if the recipient gave them as a dying-gift, he has not done anything, even to non-inheritors, because a dying-gift only acquires after death and once he dies the second recipient now has the rights.

Paragraph 5- If there was an outstanding debt or kesubah against the first recipient and they come to court to collect from these properties, even if the first recipient is alive the court would not collect from the actual properties. We would only appraise the fruits themselves.

Paragraph 6- If the first recipient died, and his creditor or wife comes to collect from these properties, we would not collect anything from these properties. Even if they were designated for collected or he set them aside for his wife’s kesubah, the court would not collect anything from these properties. Rather, they belong to the second recipient. This seems to me to be the primary view, notwithstanding the fact that many disagree.

Paragraph 7- All of the foregoing is only where the donor said, “and after you to so and so,” and he does not say, “effective today.” If the donor says, “and after you, effective today, to so and so,” and the first recipient sold the property, the second recipient can remove from buyers. There are those who say that we do not say in such a case that inheritance has no break. There are those who disagree and hold that we do not differentiate between where one said “effective today” and one did not, but the first view seems to be the primary one. Similarly, if the second recipient died while the first recipient was alive, they would give the properties to the second’s inheritors. If there were three recipients and the donor said, “to so and so, and after you, effective today, to so and so, and after you, effective today, to so and so,” the first and second recipients would only acquire the fruits and the third recipient would acquire the actual properties effective today and the fruits after the second recipient dies, so long as they first go to the second recipient. Thus, if the second recipient died while the first was still alive, they would return the properties to the donor’s inheritors. All of the foregoing only applies where the donor said “my properties to you and after you to so and so.” If he said “after you, to me” or “to my inheritors,” and the first recipient sold and the donor or his inheritors died, we would remove the property from the buyer. Even if the donor did not say, “after you to me” or “my inheritors,” but just said “my properties are given to you for your entire lifetime,” the recipient would only receive the fruits and if he sold them, the donor or his inheritors can remove the property from the buyer. If the donor said, “after you, to my inheritors,” and he had a daughter who died while the recipient was still alive and was survived by her children, her children would take her place. If she had no children, however, the other inheritors would not take her place unless the donor said “effective now, to my inheritors,” because then her daughter will have acquired while she was alive. If the donor said, “my properties to and so and after him to my inheritors,” and at the time of the gift he had one daughter, and subsequently gave birth to sons, there are those who say the daughter would acquire because his intention was only on inheritors he had at the time of the gift, and this seems correct to me. If the donor said, “my properties to you and after you to your inheritors,” there are those who say it is as if he said “and after you, to so and so,” and if his inheritors died while the recipient was still alive, those inheritors’ inheritors would not receive anything unless he said, “and after you, to your inheritors, effective now.” This is only where he said “after you, to your inheritors.” That which they write in documents, “to you and your inheritors,” however, is just to enhance the document. There are those who disagree. If Reuven gave a gift to Levi and made some kind of condition with him that if he violated the properties would go to Shimon, effective now, and Shimon then gave all the rights he had in this gift to Levi, effective now, and Shimon died, even if Levi violated the condition he would acquire the properties via Shimon.

Paragraph 8- If a dying person told a single woman, “my properties to you, and after you to so and so,” and did not say, “effective today,” and she went ahead and got married, the husband has the status of a buyer and the second recipient cannot remove from the husband. If he gave the gift when she was married and she then died, the second recipient could remove from the husband because since she acquired these properties with this condition while she was married, it is as if the donor told her explicitly, that so and so, and not her husband, would acquire. Thus, if she sold these properties while she was still married and she died while still married, the buyer would keep the properties.

Paragraph 9- If one says, “my properties to my mother, and after her, to her inheritor,” and the donor had a married daughter, and the daughter died while her husband was still alive and while her father’s mother was still alive, the husband would not inherit those properties because they were fit for his wife and his wife did not acquire them until after she died. If the daughter was survived by a son or daughter, however, they would inherit the properties because the term “her inheritors” implies even inheritors’ inheritors. Had the donor said that when the elder mother dies they would go to his daughter effective now, the husband would inherit them after his wife dies.

Paragraph 10- If one gives a gift and says “the movable items I have to so and so,” the recipient would receive all of the donor’s utensils, but not his wheat or barley or anything similar. If he said “all my movable items,” the recipient would take everything. Slaves are included in movable items, but not the lower mill or anything similar because it is attached to the ground. If he said, “anything that moves,” the recipient would even take the lower mill and anything similar.

Paragraph 11- If the donor said, “my properties to so and so,” all movable items, real property, clothing, slaves, animals, birds, tefillin and other books would all be included. A torah scroll, however, is unclear whether it is included in “properties” or not. Thus, if the recipient seized it, we would not take it away from him. If he said to give his clothing, anything that is called clothing would be included, whether weekday clothing or shabbos clothing.

Paragraph 12- If one writes to another that he is giving him four amos of real property and all movable items he has via the real property, he would acquire all gold, silver, other vessels, both big and small, flax garments, wool garments and anything that can be appraised for money and anything that can be appraised for property. He would not acquire real property because real property cannot be acquired via real property. He would not acquire slaves because we rules that where one takes possession of real property he does not require slaves or a Torah scroll. If he grabs the Torah scroll, however, we would not remove it from him.

Paragraph 13- If one writes to another that he is giving all his movable properties via real property and he only leaves over five gold coins for his inheritors and he had loan documents in his possession and the gift was a dying-gift, the recipient would acquire the loans because document are included in “properties.” If the gift was a healthy-gift, however, the recipient would not acquire because the donor did not write that the recipient should acquire “them and all the rights contained therein.” Thus, the inheritors would acquire the loans. Even if the recipient himself owed money to the donor in a document, he would need to pay the inheritors because the donor did not waive his debt but just transferred ownership of the document. Since the recipient did not acquire the document, the debt too is not waived.