Rambam - 1 Chapter a Day

Of whose existence they did not know.

The Maggid Mishneh quotes the Ramban and the Rashba as explaining that when both brothers receive landed property from the inheritance, the creditor may expropriate the entire debt from either one. He does not have to expropriate half of the debt from one and the other half from the other.
The Shulchan Aruch (Choshen Mishpat 107:7) does not accept that approach. According to that source, this can be interpreted as referring to a situation where there were only two fields in the estate. We do not require the creditor to take half a field from one and half from the other. Instead, he can take an entire field from one, and that brother then must renegotiate the inheritance with his other brother.
The Tur (Choshen Mishpat 175) explains that this refers to a situation where the father designated a particular field as payment for the debt, making it an ipotiki. Otherwise, the creditor would not be able to collect the sum from only one of the brothers. Sefer Me’irat Einayim 175:5 also mentions another possibility for such a scenario.

Bava Kama 9a mentions an opinion that states that the brother who took the money could say: “I took the money and accepted the risk that it be stolen. You took the land and accepted the risk that it be expropriated by a creditor.” The Rambam does not accept this view and maintains that both brothers must share in the responsibility for the debt.

The Tur and the Ramah (Choshen Mishpat 288:2) write that if the brother from whom the property was not taken desires to preserve the initial division, he can offer to give the other brother land equivalent to the value of the land expropriated from him. The two must then negotiate a financial compromise. The other brother is obligated to accept this offer.

This is speaking about garments that were purchased with the funds of the estate. The Ramah (Choshen Mishpat 288:1) states that we do not evaluate the clothes of the eldest brother. This refers to the concept stated at the conclusion of the previous chapter, that the eldest brother may buy fine clothes from the money of the estate so that he will make a prestigious impression.

And they need not be evaluated by the court. The Maggid Mishneh explains that as long as the brothers are sharing the money of the estate, they are willing to forgo the slight differences that exist between the values of the clothes purchased by the families. And once they have waived the right to protest, the clothes are considered to be presents given to the wives and children, and cannot be reclaimed by the estate.

Since the Sabbath and festival clothes are more valuable, the brothers never forgo their value to each other. Instead, they are considered to be loans from the estate and when the estate is divided, their value must be calculated.

This law would not apply if they were all below majority. Since a guardian is being appointed, it would be preferable for one person to be appointed to care for the entire estate. And if they are all past majority, there is no need for a guardian at all (Maggid Mishneh).

From the Rambam’s wording, the Maggid Mishneh concludes that although a guardian for the orphans has been appointed, he cannot negotiate the division of the estate himself, but must act with the guidance of the court. See also the contrast between Hilchot Mechirah 13:9 and 13:10.
The Tur and the Ramah (Choshen Mishpat 289:1) state that the estate should be divided into equal portions, and then a lottery should be made between the brothers.

See Hilchot Mechirah 13:10, which mentions this figure, explaining that just as with regard to ordinary business dealings, a person is willing to forgo a loss of up to a sixth; so, too, in this instance, that figure is chosen.

The Ra’avad states that this applies to a situation where the father divided the estate among his children during his lifetime. Otherwise, the estate is kept as an integral entity managed by the older brothers, from which all the brothers derive their living expenses until the minors come of age.
The Maggid Mishneh states that the Rambam would accept this ruling as long as the older brothers are managing the estate at a profit. If, however, they bring about a loss, it is preferable for the minors to have the estate divided, so that their share will not be diminished.

The Ramah (Choshen Mishpat 290:1) emphasizes that the term “court” refers to the presiding Jewish court in the region or a court composed of the leading Rabbinic figures of the generation. No three people can take it upon themselves to serve as the court to administer the affairs of minors.

I.e., his request should be heeded, even though the minor may squander the estate, for it is a mitzvah to see to it that the desires of the deceased are brought to fruition (Maggid Mishneh).

Even though these people may not be effective guardians, since it is his own property, he can do as he desires. The court does not supersede his authority and prevent them from being appointed.

For women do not generally go out and involve themselves in business affairs (Sefer Me'irat Einayim 290:5).

Who are generally not considered to be trustworthy (ibid.).

There are times when the term am ha’aretz is used to connote an unlearned person, but one who is observant of the Torah’s laws. In other situations, the term is used to refer to someone who in addition to his lack of knowledge is also careless in his observance. The Rambam, following the approach of Rabbenu Yitzchak Alfasi, adopts the second interpretation. The Maggid Mishneh mentions that there are opinions (see Rashi, Pesachim 49b) that maintain that even if an unlearned person is observant, he should not be entrusted with the responsibility of serving as a guarantor. For “an unlearned person is not pious” (Avot 2:5), and it is likely that he will allow himself to benefit from the orphan’s estate, rationalizing that he is doing no more than taking compensation for his efforts. The wording of the Shulchan Aruch (Choshen Mishpat 290:2) quotes the Rambam’s wording. Nevertheless, this perspective does not necessarily contradict Rashi’s approach.

Our translation is dependent on the Rambam’s wording in Hilchot Sanhedrin 2:7.

The Ramah (Choshen Mishpat 290:2) adds that the person chosen may be related to one of the judges of the court; this does not present an impediment.

See Chapter 8, Halachot 1-2. Although that halachah speaks of a situation when the owner of the property has been taken captive, the restriction applies in all instances.

Since he was appointed by the court, they have the authority to remove him when they see fit. Indeed, they must do so. Otherwise, they will be responsible for causing the orphans a loss (Maggid Mishneh). Rabbenu Asher and the Ramah (Choshen Mishpat 290:5) differ and maintain that even when a guardian is appointed by the court, he may not be removed from his position unless witnesses testify concerning his improper conduct.

And is using that to finance his extra spending.

If, however, witnesses testify that the guardian is acting irresponsibly with his own property, that is not sufficient cause to have him removed from his position (Sefer Me’irat Einayim 290:12).

That he did not misappropriate property belonging to the orphans. Although an oath is generally not required (see Chapter 11, Halachah 5) of a guardian appointed by the orphans' parents, an exception is made because of the testimony of the witnesses.

We assume that if the father knew how this person would conduct himself at present, he would not desire to have him serve as a guardian. Hence, he is removed from that capacity. From this the Maggid Mishneh derives that if a person had an unsavory reputation at the outset, and the father, nevertheless appointed him as a guardian, he should not be removed from his position for continuing to conduct himself in this manner.

When quoting this law, the Shulchan Aruch (Choshen Mishpat 290:26) adds that the court should rebuke the youth and try to influence him to mend his conduct.

Sefer Me’irat Einayim 290:58 states that if, during the time he was waiting for his estate, the heir designated it as security or the like, his actions are of no consequence.

For they are incapable of dealing responsibly with their property.