Translation:Shulchan Aruch/Choshen Mishpat/281

Paragraph 1- A person cannot have someone inherit if he is not fit to inherit nor remove an inheritance from an inheritor, whether he instructed while healthy or dying, and whether orally or in writing. Thus, if one says his firstborn should not take double, or that his son should not inherit with his brothers, he has not said anything. If he says so and so should inherit where he has a daughter, or his daughter’s daughter should inherit where he has a son, he has not said anything. The same applies to anything similar. If he had many inheritors, however, such as many sons, brothers or daughters, and while he was dying he said one of his brothers should inherit and not the others, or his daughter, so and so, should inherit as opposed to the other daughters or he gave more to one and less to the other¸ his words would be effective, whether the said it orally or in writing. If he says “my son, so and so, should inherit me solo,” however, and he said it orally, his words are effective. If he wrote all his properties to his son, however, he will only have made him a guardian, as was discussed in Siman 246.

Paragraph 2- If one said, “my son, so and so, should inherit half my properties, and the rest of my sons should inherit the other half,” his words would be effective.

Paragraph 3- If one said that his son, so and so, should only inherit such and such, his son Reuven should inherit his share and Shimon’s share or Shimon should not inherit and only Reuven should, he has not said anything. If he said, “my son Reuven should inherit me” or “inherit all my properties,” and “Shimon should not inherit,” however, his words would be effective. The same is true where says Shimon should not inherit and Reuven should inherit everything, and all his words would be effective.

Paragraph 4- When is this true? In the case of a non-firstborn. In the case of a firstborn, however, if one said the firstborn should inherit like a non-firstborn or that his firstborn should not take or inherit double, he has not said anything, because the verse states, “One is not able to treat the loved son as firstborn.” Even in a place where they have a custom that the firstborn does not take double, one should not follow the custom because it violates the Torah.

Paragraph 5- If one is healthy, he does not have the power to add to or subtract from his firstborn or any other inheritor.

Paragraph 6- If a dying person had a firstborn and non-firstborns, and he gave more to one of the non-firstborns using inheritance language, such as where he said “my son so and so should inherit such and such,” he has not said anything. There are those who say the division of the non-firstborn is effective and they would collect a proportionate amount from each one to complete the firstborn’s portion.

Paragraph 7- All of the foregoing was only said where the deceased used inheritance language. If he used gift language, however, his words would be effective. Thus, if one is divvying out properties when he is dying and gives more to one and less to another, or has the firstborn receive an equal amount or he gives to someone not eligible to inherit, his words would be effective. If he used inheritance language, he has not said anything. If he wrote, either in the beginning, in the middle or at the end, that he is giving via gift, even if he mentioned inheritance language in the beginning and end, his words would be effective. How so? “Give such and such field to my son, so and so, and he should inherit it,” or he said, “he should inherit it and it shall be given to him and he shall inherit it,” or “he shall inherit it and it shall be given to him” because there is gift language, his words would be effective, even though he mentioned inheritance in the beginning and end. Similarly, if there were three fields for three inheritors and he said “so and so should inherit such and such field, such and such field shall be given to so and so and so and so should inherit such and such field,” they would acquire, even though the son he used inheritance language for is not the son he used gift language for. This assumes he did not pause kidei dibur between each statement. If he did pause, however, there must be gift language mixed in to all three. When is this true? In a case of three fields for three people. If they were given to one person or there was one field for three people, however, even after kidei dibur would be effective. There are those who say that this is only where the donor said “and it shall be given” with the conjunction “and.” If he said it shall be given, without saying “and,” it would not be effective to the inheritance language that preceded it. If one writes to his daughter that after he dies she should take half of a male portion, the status would be the same as a standard inheritance, and any creditor or kesubah would precede this gift. The same applies to the 1/10 of properties that go to the daughter. In the case of “all my life,” the donor can sell the properties, even if he wrote “effective today and after death.” The daughter would only take properties that existed at the time of the gift, but nothing that is subsequently acquired, because a person cannot transfer something not yet in existence. It seems to me, however, that this that we have a custom now to write a loan document to his daughter and to make a condition that if he gives his daughter half the portion of a male then he will be exempt from his debt, in such a case he must give her from everything he has because the debt is the primary matter. Thus, he must fulfill the condition or pay the debt, and this is in fact the custom. If one wrote a half-male document to his daughter and wrote in it that it includes her descendants, her daughters and sons would take equally because he did not write “her descendants that are inheritors.” If he made a condition that his daughters should not have any share of his seforim and he borrowed against his seforim, the creditor does not acquire the collateral and the daughter would have a portion in them. If the seforim were owned free and clear in his possession, the daughter would not have not any rights to them.

Paragraph 8- The term “take possession” of properties is gift-language, as is the term “divide.”

Paragraph 9- If one divvied out his properties to others using gift language and did not leave anything for his inheritors, his words are effective.

Paragraph 10- If one’s sister had sons and brother had a son, and he gave a gift to the brother’s son, and wrote that in that gift the nephew would lose all rights to his inheritance, and he then died, the brother’s son would inherit everything. If four sisters had one brother that was not acting properly and they wanted to evade the inheritance from him so they wrote a document that each of them is giving all her properties to her three sisters, there is no gift at all because all the money reverts to belong to the four of them as it was originally. If the gifts were one moment before death, the brother would only inherit after the last one died. We do not follow such circumstantial evidence. If the document states that the first gives to all three her sisters, then the second gives, then the third and then the fourth, whomever is first would re-acquire the properties that went around and were given to them.