Translation:Shulchan Aruch/Choshen Mishpat/253

Paragraph 1- If two people come to visit one who is ill, and the ill person gives his will in front of them, they would write but not adjudicate. If they were three people, they can choose to write or adjudicate by taking possession on behalf of each of the recipients the ill individual instructed to give to and by judging on any uncertainty that arose from the will. None of the inheritors or recipients are able to say we will follow a different court. When is this true? Where it occurred during the day. If it occurred at night, however, they can write but not adjudicate.

Paragraph 2- If a dying person instructed and said so and so should take all or some of his properties, or he should gain possession, or gain rights to or acquire, that would be gift-language. Similarly, if the donor said he should receive as inheritance or he should inherit, on someone who is capable of inheriting him, the recipient would acquire. If he said so and so should benefit from my property, should stand on them or should rely on them, however, the recipient would not acquire. If the donor said I am leaving property for so and so, that would qualify as gift language. If he said such and such property should fall to so and so, that would be inheritance language. This is all where the donor mentioned the gift language. If he said, such and such to so and so in my properties, it is of no effect. If one says to pay back wife’s kesubah with set aside money, that is not gift-language, and the inheritors do not have to listen in order to comply with the mitzvah to fulfill the deceased’s words, as was discussed at the end of Siman 252.

Paragraph 3- With respect to these languages that are effective for a dying person, there are those who say that they would also be effective for a healthy person, while others say it would not be effective.

Paragraph 4- That which we write in a gift document, “you should go, take possession, inherit, take control of, and do what you desire and choose,” is just to enhance the document, and even without this language the gift would be effective. If a will-document uses language that can be attributed to a scribe’s error, see above 49:6.

Paragraph 5- If they asked a dying person, “who should your properties go to,” and he responded that he thought he had a son or that his wife was pregnant, but now that he knows that he does not have a son and that his wife is not pregnant, his properties should go to so and so, and it was later discovered that he has a son or that his wife is pregnant, his gift is not valid, even if the son later dies or the wife miscarries.

Paragraph 6- If a dying person said his properties should go to so and so, or if they asked him, “who should your properties go to? Perhaps to so and so?,” and he responded, “who else would it go to?,” and that so and so is capable of inheriting him, the recipient would acquire as an inheritance. The practical difference of it being an inheritance is that if the donor said, “and after him to so and so,” it would be of no effect, because there is no break to an inheritance. If he is not capable of inheriting the donor, he would acquire as a gift. If the donor said explicitly he is giving it as a gift, even if the recipient is capable of inheriting him it would be considered just gift-language. See above at the beginning of 248:1-2.

Paragraph 7- When is it true that the recipient would acquire as inheritance? Where the inheritor is one of the deceased’s daughters or other inheritors. If he was one of his sons, however, he would only be considered a guardian, as was discussed in Siman 246.

Paragraph 8- If a dying person said, “give 200 zuz to so and so my son, as it appropriate for him,” or “to my wife, as is appropriate for her” or “to my creditor as is appropriate for him,” we would give 200 zuz more than the firstborn portion, the keusbah or the debt. If he said “give 200 zuz to my son for his firstborn rights,” or “to my wife for her kesubah,” they cannot take both, but only one. They will have the upper hand. If the 200 zuz is more than their share, they can take 200 zuz. If the firstborn rights or the kesubah was more than 200 zuz, they can take that. If he said “give 200 to my creditor for his debt,” however, the creditor can only take his debt. If he said “200 zuz to my son, so and so,” who was not a firstborn, he would only take 200 zuz. If the donor did not say “as is appropriate for him” and did not say “for his firstborn rights,” “for her kesubah” or “for his debt,” in all those cases the recipient would have the upper hand. Even in the case of a creditor, if the donor said “give 200 zuz to so and so my creditor,” the creditor can choose to take the 200 zuz or his debt. There are those who disagree and say that if he said “to my son so and so” or “to my wife” or “to my creditor” without specifying, he has given them a gift above what they deserve. If he said, “to my son the firstborn” it has the status as if he said “for his firstborn rights” because he mentioned the fact that he is a firstborn. The first opinion seems to be the primary one. This is all where he did not say he is giving it as a gift. If he explicitly said he is giving 200 zuz as a gift to so and so his creditor or wife, however, they would take that amount in addition to what he owes them. If one says his daughters should take such and such amount from his property, and he did not say it was for their marriage, they would take the gift in addition to the 1/10 of his properties that she receives.

Paragraph 9- If a dying person said give 200 zuz to so and so, 300 to so and so and 400 to so and so, we do not say whomever came first in the document would acquire. This assumes the donor did not pause in middle, or else that would be a retraction. Thus, if the donor only left 500, they would divided proportionate to what he wrote for them. If a loan document was produced against the deceased, the creditor can collect from each one proportionate to what he wrote for them. How so? If the debt was 700, the 200-recipient would pay 100, the 300-recipient would pay 150 and the 400-recipient would pay 200. If the donor said give 200 zuz to so and so, and after him 300 to so and so, and after him 400 to so and so, however, whomever is first in the document would acquire. Similarly, if he gave them all equal amounts, such as where he gave each one 200 zuz, whomever is first would take precedence, even if the donor did not say “and after him” because otherwise he would have said give them 600 together. There are those who disagree with this. Thus, if a loan document was produced against the deceased, he would collect from the last recipient. If he does not have enough, the creditor would go to the recipient before him. If he does not have enough, he would go to the recipient before him. The same is true in a case of a healthy-gift where the donor had someone acquire for them, and the law would be the same.

Paragraph 10- If a dying person gave a gift and left properties for his inheritors and a loan document was produced against the deceased, the creditor would collect everything from the inheritors. If they did not have enough, he would collect the rest from the gift-recipient. This is only true where he specified the portion for the gift-recipient but did not specify for the inheritor. If he said give 200 zuz to my son so and so, and 200 zuz to so and so, the son would take precedence because he preceded the gift-recipient. If a loan document was produced against the deceased, the creditor would collect from the third party because he was a later recipient.

Paragraph 11- If one says he has such and such property in so and so’s possession, and such and such property in so and so’s possession, and he was continuing to list it out, and while he was speaking he said, “give so and so 200 zuz,” we do not give him the 200 zuz immediately. Rather, we calculate based on what we collect because he has shown us his intention that he wants to give him a percentage of what he has.

Paragraph 12- If a dying person says give 200 zuz to so and so and he will marry my daughter, it is as if he gave him two gifts and he can choose which one he wants. Thus, if he wants to take the money and not marry his daughter, he may do so. If the donor says “marry my daughter and give him the 200 zuz,” however, that is a condition and the recipient would not acquire the money if he does not marry the daughter. If one says “give 100 zuz to my daughter and she should purchase a belt,” and the daughter dies, we would give the money to her inheritors because it is as if he gave two instructions. Although it is now impossible for her to fulfill the instruction of buying the belt, the first gift is still valid.

Paragraph 13- If a dying person said give 200 zuz-worth of my wine to so and so, and some of the wine soured, the recipient would receive a proportionate loss. Similarly, if the donor said give him 200 zuz from the value of my wine and the wine was sold and some of the money was misplaced, the recipient’s loss would be proportionate. If the donor said give 200 zuz from my wine, however, and whether some of the wine soured or it was sold and some of the money was misplaced, the inheritors would be responsible for the entire amount, and the recipient would receive 200 complete zuz. If the value of the wine went up, the profit always belongs to the inheritors, regardless of what language was used, and the recipient would only receive 200 zuz. Similarly, if the wine went down in value, the inheritors would suffer the loss. If the donor gave the recipient a specific item, such as one of his barrels, and one of them was lost, the recipient would suffer the loss. If the donor instructed to give one maneh of his property to someone, and he instructed the guardian to choose the best portion and it was misplaced, they must give him a different maneh because the donor did not specify and just said to give him from his properties.

Paragraph 14- If a dying person said, give so and so a house that can hold 100 barrels, and they could not find a house that would hold less than 120, the recipient would acquire the house that can hold 120.

Paragraph 15- If a dying person said give 400 zuz to my daughter in her kesubah or for her kesubah, and it is the city custom to inflate when appraising a dowry and write on something worth a maneh that it is worth 200, she would only receive 200 because the father did not simply say 400.

Paragraph 16- If the donor said to give 200 zuz to so and so as dowry, they do not have to give her until she gets married and needs it. If she dies in the interim, her inheritors would not get anything. If he said give 200 zuz to so and so for her dowry, however, they must give it to her now. Any appreciation or deprecation would be hers. If she died before she got married, her inheritors would acquire. In all these cases there is no distinction between a dying-gift and a healthy-gift that is done with a kinyan. There are those who disagrees with these laws and hold that if the donor said to give it to her for her to marry with and she died, her inheritors would not acquire. This seems to me to be the primary view. See Yoreh Deah 253:7.

Paragraph 17- If a dying person says give my son a shekel each week, or he said only give them a shekel, and it turns out that a shekel is not enough for them, but they need a selah each week, we would give them what they need. If he said that when they die others should inherit instead of them, we would only give them a shekel. See Siman 248 as to when those after them would not receive anything.

Paragraph 18- If a dying person said to give a maneh to so and so, we would give him a maneh, whether the donor said “this maneh” or simply said “a maneh.” This is only true where he is instructing because of death, in which case one can acquire with just speaking, or where he is divvying out all his properties to many people and he instructed to include this maneh, because the presumption is that he is instructing because of death. If he only transfers one maneh without specifying, however, it is a partial dying-gift, which the recipient cannot acquire without a kinyan and by bolstering his rights. In this particular case where he is transferring a maneh, even with a kinyan the recipient would not acquire, because currency cannot be acquired via swap and the donor must transfer via real property or by giving the money to a third party while he is alive.

Paragraph 19- There are those who say that if the donor said “I am hereby giving a maneh to so and so,” he is referring to a literal maneh, and if there is a literal maneh in existence and it misplaced, they can direct the recipient to the misplaced one. Similarly, if the donor has numerous manehs in existence, each one by itself, and one was misplaced, they can direct the recipient to the misplaced one, even if the donor said “from my properties.” If the donor does not have a separate maneh but just 500 zuz together, and a maneh was misplaced, the recipient would only lose a proportionate amount. If the donor had no actual money and he did not say “from my properties,” it may be that the recipient would not acquire because the donor said a literal maneh only and the donor does not have one. All the more so in a case where the donor said to give money or gold coins, would the donor mean literally, and if he does not own any, the recipient would lose out if the donor did not say “from my properties” or some other language which has the same implication.

Paragraph 20- If a dying person says that his loan or deposit that is in so and so’s possession should be given to so and so, his words would be effective, and it does not have to be said in the presence of all three parties. Similarly, if he said that the loan document he has against so and so should be given to so and so, the recipient would acquire what is in the document as if it was written and handed over, even if the recipient did not pull the document. An inheritor cannot waive a document that was given as a dying-gift. This that we say that the recipient acquires the debt is only where the donor did not exclude anything because otherwise it would be a partial dying-gift and the recipient would not acquire unless he transferred with a kinyan and bolstering of rights or if he was instructing because of death. There are those who say that this that a dying person can transfer his loan that is in another’s possession is only with respect to a loan that is in a Jew’s possession, but not a loan that is in a gentile’s possession. Even if the donor has collateral or a document from the gentile it is not clear whether the donor can transfer. This seems to me to be the appropriate way to rule.

Paragraph 21- If a dying person said “so and so should live in this house” or “so and so should eat the fruits of this palm tree,” he has not said anything because he did not transfer anything of substance since dwelling and eating and anything similar are like speech and sleep, which cannot be acquired. If the donor said “give the house to so and so so that he can live there until such and such time” or “give this palm tree to so and so so that he can consume its fruits,” however, his words would be effective because he has transferred the actual item for its fruits and the item is something of substance. The same applies to anything similar.

Paragraph 22- If he instructed to give a palm tree to so and so, and he had two half palm trees, the recipient would take them because that is what the donor intended, so long as they are referred to as palm threes. Even if the donor had full palm trees, the inheritors can say this is what the donor intended.

Paragraph 23- If a dying person said to give 200 zuz to the poor or for a Torah scroll for the synagogue, they would give to the one he would frequent. If he would frequent two, they would give each one, as is discussed in Tur Yoreh Deah Siman 258.

Paragraph 24- If a dying person said his properties should go to so and so and so and so, the recipients would split them equally, even if there were 100 recipients. If the donor said, “my properties should go to so and so and his children,” they would split it. So and so would take half and all the children would take half. If he said “to so and so and so and so, and to the children of so and so,” the sons of so and so would take half, and the first two recipients would take half. If he said “so and so should split my properties,” the recipient would take half. If he said “give a portion of my properties to so and so,” the recipient would receive 1/16. There are those who rule he would take ¼ of the properties. If the donor said “so and so should receive a portion in my property” and the donor was dying and divvying out his properties to his children, the recipient would receive a portion like one of the children. If one gave his properties to his sons and daughter, she would take a portion like one of the sons. If he made a condition that if they marry her off or she marries on her own that she would receive her dowry and be removed from the estate, his words would be effective. If one of the brothers married her off and set up to give her less than the amount she was supposed to get, he would not have that power, because the condition was only where all the sons marry her off together or she marries herself off, but not if one marries her off.

Paragraph 25- If a dying person said to give so and so a portion in the wine-pit he has, the recipient would receive ¼ of the wine. If he said to give him a portion for the barrels, he has lowered the amount and the recipient would receive 1/8 of the wine. If the donor said to give him wine for the pot, the recipient would take 1/12 of the wine. If he said to give him wine for a drinking cup, he would take 1/16 of the wine in the pit because the donor has showed us his intention to only give a small amount. We do not use these sizes to learn about other laws. There are those who say that in all these cases the recipient would only get a minimal amount. This is all in the case of a gift. In the case of a sale, however, we would say the cost would be in the indicator.

Paragraph 26- If a dying person instructed to give a gift to a fetus in his mother’s womb and it is his child, the fetus would acquire because a person has a close connection to his son, as was discussed in Siman 210.

Paragraph 27- If he said, “if my wife gives birth to a male, he should receive a maneh, and if she gives birth to a female, she should receive 200,” and she gave birth to a male, he would receive a maneh. If she gave birth to a female, she would receive 200. If she gave birth to both a male and a female, the male would receive a maneh and the female would receive 200. If she gave birth to a child whose sex is unknown or to a hermaphrodite, the child would receive the lower amount of the two. If the child’s genitals tore open and was discovered to be a male, he would receive a maneh.

Paragraph 28- If he said, “if my wife gives birth to a male, 2/3 of my money should go to him and 1/3 should go to my brother, and if she gives birth to a female 1/3 of my money should go her and 2/3 to my brother,” and she gave birth to a male and female, the gift that he gave to his brother is void, and the matter will revert to Biblical law, and the son will receive everything.

Paragraph 29- If a dying person said “my properties should go to Tuvia,” and someone named Tuvia came and said he is the referenced Tuvia, he would take the properties. Even if there was another Tuvia whom we think might be the referenced Tuvia, we would not wait for him. If his name was established as Rav Tuvia, he would not take them. If the dying person was well-acquainted with him and called him by his name, he would take the properties. If two people come to claim the properties and each one’s name is established as Tuvia and one of them was a scholar, the scholar would take precedence unless it was known that the donor was closer with his neighbor or relative with the same name. If neither were a scholar and one of them was a neighbor or relative, that one would take precedence. If one was a neighbor and one was a relative, the neighbor would take precedence. If they were both related, both neighbors or both scholars, the judges will use their discretion. Whomever they believe the donor was more inclined to have said to give to him would receive the properties. The same is true if there were many potential recipients. The aforementioned neighbor is not a neighbor who lives near him, but a close friend who frequently does business with him. This that we evaluate the donor’s intent is only where he gives a gift. If he says that he owes money to Tuvia, however, and two Tuvias come, they would split because there is no circumstantial evidence given that he owes money.

Paragraph 30- If a dying person instructed and said not to eulogize him, we would not eulogize him. If he said not to bury him with his properties, we would not listen him. Rather, we force the inheritors to bury him from his properties.

Paragraph 31- If one gave many gifts from him money and retained a small amount for his inheritors, the inheritors are required to bury him. If one says “a maneh should go to my son, so and so, and he should not inherit, and a maneh to my son, so and so, and he should inherit,” and he had many properties and only these two sons, the second son will inherit everything and the first son will only receive the maneh that was given to him.

Paragraph 32- Will-documents that are produced in secular courts are valid.

Paragraph 33- If one said “my properties should go to Shimon’s male sons if he has, and if he does not have, they should go to Naftali’s male sons,” and Naftali’s sons immediately went down to the properties, and after the donor died Shimon gave birth to sons, neither of the families would acquire the properties and they would revert to the inheritor. If one gave another the rights to live in one of his houses, and he wrote that the recipient can choose whichever house he wants, whether the lower houses or the higher houses, the recipient can even choose a middle house because the donor only wrote that language to bolster his rights. If the witnesses wrote the entire will together, and one of the gift-recipients comes and requests his own will, if the witnesses are willing they may write one for him, but they have no obligation to do so. If they want, they can testify in court and the court will publicize the recipient’s rights.