Rambam - 3 Chapters a Day

When a sh'chiv me'ra says: "Give a maneh to so and so," the maneh should be given after the dying man's death. The rationale is that the words of a sh'chiv me'ra are considered as if they have been recorded in a legal document, and that the property concerned has already been transferred. We do not suspect that the sh'chiv me'ra was referring to a buried maneh.

Similarly, if a sh'chiv me'ra states: "I have loaned money..." or "...entrusted an object to so and so; give it to this and this person," his words are binding, and a ma'amad sh'loshtam is not required.

Similarly, if a sh'chiv me'ra says: "Give so and so this particular promissory note," the recipients acquire the debt mentioned in the promissory note, as if the sh'chiv me'ra wrote the transfer on the promissory note and gave it to the intended recipient, even though the promissory note was not actually transferred. An heir does not have the right to waive payment of a promissory note that was given as a matnat sh'chiv me'ra.

Why is that when a person sells or gives a promissory note to a colleague, and an heir waives payment, the waiver is binding, while when a sh'chiv me'ra apportions a promissory note as a matnat sh'chiv me'ra, an heir cannot waive payment.

The rationale is that the transfer of a promissory note is a Rabbinical ordinance. Therefore, according to Scriptural Law, the promissory note still belongs to the heir. Thus, his waiver of it is of consequence. The transfer of a gift given by a sh'chiv me'ra is also a Rabbinic ordinance. Nevertheless in this instance, our Sages reinforced their decision and conveyed upon it the power of Scriptural Law. Thus, it is as if the recipient acquired the money mentioned in the promissory note according to Scriptural Law, and the money already reached his possession. Thus, the heir no longer possesses any right to it. Therefore, he cannot waive its payment.

The following rules apply when a sh'chiv me'ra states: "There is a maneh belonging to so and so in my possession." If he says: "Give it to him," it should be given to him. If he does not make such a statement, it should not be given to him. We suspect that perhaps he made his original statement only so that it would not be said that his heirs are wealthy.

Therefore, if the sh'chiv me'ra made the statement as a sincere acknowledgement, and there was no suspicion of subterfuge, the money should be given to the person mentioned, even though the sh'chiv me'ra did not explicitly say that it should be given to him.

Similarly, the following rules apply if witnesses observe a father hiding money in a drawer, a chest or a tower, and he says: "They belong to so and so," or "They are ma'aser sheni." If it appears that he is conveying his desires for the use of the money, his words are upheld. If it appears that he is being deceptive, his statements are of no consequence.

The Rabbis also discussed a similar situation. If a person came and told sons: "I saw your father hide money in a drawer, a chest or a tower, and he says: "It belongs to so and so," or "It is ma'aser." If the money is hidden in the sons' house, his statements are of no consequence. If it is in a field, his words should be upheld.

The general principle is that whenever the witness could have taken the money if he had wanted to, his words are upheld. If he could not have, his statements are of no consequence.

An incident occurred when a person was upset because of money that he knew that his father had left him, but he did not know where his father had hid it. He was told in a dream: "There was so and so much money. They are in this and this place, but they belong to so and so," or "...but they are ma'aser sheni." He found the exact sum of money in the place that was told him. The question was brought before the Sages and they said: "Words from dreams neither avail nor impair."

When a sh'chiv me'ra acknowledged that he owes so and so a maneh, and afterwards, the orphans state: "At a later date, our father told us that he paid the debt," their word is accepted. They must, however, take a sh'vuat hesset to confirm their claim.

If, however, the sh'chiv me'ra said "Give the maneh to so and so" when making the acknowledgement his statements cannot be retracted. Even if the orphans state: "At a later date, our father told us that he paid the debt," their word is not accepted.

If a sh'chiv me'ra says: "I owe so and so a maneh" and after his death the heirs say: "We gave it to him," their statements are not accepted. Since the sh'chiv me'ra did not say: "Give it," how would they know that they were obligated to give it?

If the dying man said: "Give so and so the money owed him," and the heirs claim to have paid the debt, the heirs are believed. They must, however, take a sh'vuat hesset.

The following rules apply when a sh'chiv me'ra gives a maneh to a third party and tells him: "Bring this maneh to so and so," and the third party goes to the designated recipient, but finds that he has died. If the recipient was alive at the time the sh'chiv me'ra gave the money to the third party, he should give it to the heirs of the intended recipient. The rationale is that the words of a sh'chiv me'ra are considered as if they have been recorded in a legal document, and the object concerned already transferred.

If the intended recipient was not alive at that time, the third party should return the money to the heirs of the principal, for a deceased person cannot acquire property.

When a sh'chiv me'ra says: "Give 200 zuz to so and so, 300 zuz to so and so, and 400 zuz to so and so," we do not say that the first person mentioned in the legal record of his statements receives his portion first. Instead, if the estate does not contain 900 zuz, it is divided proportionately. And if a promissory note is issued against the estate, the creditor expropriates from all recipients proportionately.

What is implied? If the debt was for 450 zuz, the person granted 200 gives 100, the person granted 300 gives 150, and the person granted 400 gives 200.

If, however, the sh'chiv me'ra says: "Give 200 zuz to so and so. Afterwards, give 300 to so and so, and then 400 to so and so," whoever is mentioned first in the legal record is granted priority.

Therefore, if a promissory note against the estate is brought up, the creditor should expropriate the money from the last recipient. If his holdings are not sufficient to satisfy the debt, the creditor should expropriate the money from the one mentioned before him. If his holdings are also not sufficient, the creditor should expropriate the money from the one mentioned before the second to last recipient.

If a sh'chiv me'ra says: "Let so and so live in this house," or "Let so and so partake of the fruits of this palm tree," his words are of no significance. The rationale is that he did not transfer an object of substance. For living and eating are like speech and sleep, which cannot be transferred.

If, however, the sh'chiv me'ra said: "Give this house to so and so, so that he may live in it," or "Give so and so this tree, so that he may partake of its fruits," his statements are effective. The rationale is that he transferred the entity itself mentioned in the gift with the intent that benefit be derived. This entity is an object of substance. Similar laws apply in all analogous situations.

When a sh'chiv me'ra says: "This property of mine should be given to banai," his daughters are not included among the recipients.

Even when the descendants of the sh'chiv me'ra include only one son and a daughter, or one son and the son of another son, and he used the expression banai - which is a plural term - the estate should be given to his son alone. For one son can be referred to as "my sons."

When a sh'chiv me'ra says: "My property should be given to Tovia," and then dies, and a person named Tovia comes and claims the estate, it should be given to him.

If, however, it is established that the claimant is referred to as "Rav Tovia,"

the estate should not be given to him. Nevertheless, should the sh'chiv me'ra be familiar with the claimant and be on first name basis with him, the estate should be given to him although he is generally referred to as Rav Tovia.

The following principles apply when two claimants come, and it is established that they are both called Tovia. If one of them is a Torah scholar and the other is not, the Torah scholar receives precedence. If neither of them is a Torah scholar, but one is a neighbor or a relative, the neighbor or relative receives precedence. If one is a neighbor and the other is a relative, the neighbor is given precedence.

If both of the claimants are relatives, neighbors or Torah scholars, the judges should act on their own assessment of the circumstances; the estate should be given to the claimant whom they think the deceased intended.

Similar principles apply if there are several intended recipients.

If a sh'chiv me'ra says: "My property should be given to so and so, to so and so, and to so and so," the intended recipients should divide the estate equally. This applies even if 100 people are mentioned.

When a sh'chiv me'ra says: "My property should be given to so and so and to my sons," the estate should be divided between them. The person named receives half, and all his sons together receive the other half.

An incident occurred concerning a person who told his wife: "My property should be given to you and your sons." Our Sages said: She should receive half of the estate, and all the sons should divide the other half.

If a sh'chiv me'ra says: "My property should be given to so and so, to so and so, and to the sons of so and so," the sons of so and so receive half of the estate, and the other two people mentioned receive the other half.

When a sh'chiv me'ra says: "So and so should receive a portion of my property," he should receive half. When he says: "Give a portion of my property to so and so," he should be given one sixteenth. There are, however, those who maintain that he should be given one fourth of the estate.

If a sh'chiv me'ra says: "Give so and so a portion of the wine that I possess," the person named should be given one fourth of the wine. If he says: "Give him a portion of the wine to pour into jugs," he has diminished that person's share, and the person named should be given one eighth of the wine.

If he says: "Give him a portion of the wine for cooking, the person named should be given one twelfth of the wine. If he says: "Give him a portion of the wine for a small cup, the person named should be given one sixteenth of the wine. For he revealed that his intent was to give him merely a small portion.

One should not extrapolate from the measures mentioned with regard to any other matters.

When a sh'chiv me'ra says: "Let my wife receive a portion like one of the sons," she should be given a portion the size of that given to each of the sons. If sons are born to the deceased after he has made this deposition of his property, they are added to the sons who existed at the time the will was made, and she receives a portion equal to that given to each of them.

What is implied? If the sh'chiv me'ra had three sons at the time he made his will, and two more sons were born to him afterwards, she should receive a portion equal to that given the five sons - i.e., one sixth of the estate.

The widow receives a portion only from the property that the deceased owned at the time he made his will. She does not receive a portion of any property he acquires after the will was made. The rationale is that a person cannot transfer ownership of an entity that is not in his possession.

When a sh'chiv me'ra says: "So and so should receive movable property that I own," the person named should receive his personal utensils. He is not, however, given wheat, barley or other similar entities that the deceased owned. If, however, he says: "...all the movable property that I own," the person named receives everything.

Servants are included in the category of movable property, but not a lower millstone or the like. For the lower millstone is attached to the earth.

If the sh'chiv me'ra said: "...everything that can be carried," the intended recipient acquires even a lower millstone and similar objects.

When a sh'chiv me'ra says: "Give my property to so and so," that person receives all his movable property, all his landed property, the garments, the servants, the livestock, the fowl, the tefillin and the other sacred texts; for these are all considered to be property.

There is, however, an unresolved question of whether or not a Torah scroll is considered to be "property." Therefore, if the recipient takes possession of it, it should not be expropriated from him.

When a sh'chiv me'ra says: "Give 200 zuz to so and so, my firstborn, as is appropriate for him," he should be given that sum as well as his portion as a firstborn.

In the above situation, if the sh'chiv me'ra said: "Give him 200 zuz as his firstborn portion," the firstborn is given the option: He may take his firstborn portion, or he may take the 200 zuz.

Similarly, if the sh'chiv me'ra said: "Give 200 zuz to my wife so and so, as is fitting for her, she receives that sum and the money due her by virtue of her ketubah. lf he said: "Give her 200 zuz for her ketubah" the option is hers.

If the sh'chiv me'ra said: "Give 200 zuz to so and so, my creditor, as is fitting for him," he receives that sum and the money due him because of the debt. If he said: "Give him 200 zuz for his debt," he may collect only his debt.

If a sh'chiv me'ra said: "Give 400 zuz to so and so and let him marry my daughter," it is as if he gave him two gifts. Whichever he desires, he may take. Therefore, if he desires to take the money but not to marry the daughter, he may do so.

If, however, the sh'chiv me'ra said: "Let him take my daughter and give him 400 zuz" he is making the gift conditional. The person mentioned does not acquire the gift unless he marries the daughter.

The following principle applies if a sh'chiv me'ra said: "Give 400 zuz to my daughter as her ketubah" or "...for her ketubah." If it is the custom of the people of that city to add to the appraisal of the dowry and to write a maneh's worth as 200 zuz, the daughter should be given only 200 zuz. For the sh'chiv me'ra did not say "400 zuz" without any modifier, but rather "400 zuz as her ketubah." It is as if he said: "Give her what is necessary so that her ketubah will be appraised at 400 zuz."

If a sh'chiv me'ra said: "Give such and such clothing and such and such articles to my daughter for her dowry," and the price of the garments and the articles decreases afterwards, the heirs profit, and they are required to give her only what she was promised according to the lesser price.

Similarly, if a sh'chiv me'ra said: "Give my daughter the 400 zuz, the money from this wine," and the price of wine increases, the heirs profit, and the daughter is given only 400 zuz.

An incident occurred concerning a person who was being led off in fetters. He said: "Give so and so 400 zuz from the wine in this and this place." Our sages said: "He should receive 400 zuz from the price of that wine." The condemned man did not intend to give the person named an amount of wine equal in weight to 400 zuz. He intended to give him the monetary amount. He specified the place from which he could collect the money to strengthen the legal power of the recipient.

Another incident occurred concerning a man who said: "Give my daughter the date palm," but he left only two halves of a date palm. Our Sages said: "She should receive the two halves of the date palm, for that was his intent. He called them a date palm."

And another incident occurred concerning a person who said: "Give so and so a building that contains 100 korim." It was discovered that the building owned by the person who apportioned his property could contain 120 korim. Our Sages said: "He acquires that house, because it appears that this was his intent." For everyone who gives a gift gives generously. The same applies in all analogous situations.

When a sh'chiv me'ra says: "Give my sons a shekel each week," or even if he said: "Do not give them anything but a shekel each week," and it is discovered that a sela a week is necessary to meet their needs, they are given whatever they need. We assume that his intent was not to starve his children, but to encourage them not to live on a very lavish budget.

When a sh'chiv me'ra orders: "Do not eulogize me," he should not be eulogized. If he says: "Do not use funds from my estate to bury me," his words are not heeded. We do not enable him to secure the funds of his children and make himself a burden on the community. For it is forbidden to leave him without a burial. Instead, we compel his heirs to bury him from the funds in his estate.

When a sh'chiv me'ra says: "My son, so and so, should inherit my estate," that son alone should inherit the estate, and not the man's other sons. Similarly, if he makes such statements about one daughter with regard to his other daughters, one brother with regard to his other brothers, or similarly, with regard to other heirs, his words are binding.

If a healthy person makes such statements, his words are of no consequence.

When a sh'chiv me'ra states: "My property should be given to so and so, and after him, to so and so," the second person receives only what the first person leaves over.

If, however, the first person was fit to inherit the estate of the sh'chiv me'ra - e.g., he was one of his sons - the second person does not receive anything. For regardless of the expression used to give a gift to an heir, it is considered as if he were given an inheritance. And an inheritance never ends. This applies even though the giver said: "After him, it should be given to so and so."

If, however, a healthy person gave a gift in this manner and had a deed composed saying: "My property should be given to you, and after you to so and so," the second person receives only what the first person leaves over. This applies whether or not the first person was fit to inherit the estate of the giver.

There is an exception to the principle stated above with regard to a sh'chiv me'ra who says: "My property should be given to you, and after you to so and so," and the first recipient is fit to inherit the giver's estate. If the giver explicitly states: "I am not giving you this property as an inheritance that never ceases, but as a gift, and I have set a limit to it," the second person acquires what the first leaves over.

For this reason, if the giver entrusted the money to a third party, or he said: "Give my sons a shekel every week. I am not giving them this money as an inheritance. Afterwards, what remains of the estate after their death should be given to so and so," they should be given only a shekel a week, even though it does not suffice for them.

If a sh'chiv me'ra states: "My property should be given to so and so, and after him to so and so," and the first person named dies, the property is acquired by the second. If the second person named also dies, the property is given to the heirs of the second person.

If, however, the second person dies during the lifetime of the first, and the first dies before the sh'chiv me'ra, the property should be given to the heirs of the first person.

Although the second person named receives only what the first person leaves over, it is forbidden for the first person to sell or give as a gift the body of the property that he has been given. Instead, he is entitled to reap the benefits from the property until he dies, at which time the second person acquires the property.

If, however, the first person transgresses and sells or gives as a gift the property, the second person cannot expropriate the property from the recipient. For the second person does not have any right to the body of the property or the benefits from it, but only what remains after the first person dies.

Any person who advises the first person named to sell the property is called "wicked."

Even if the estate contained servants and the first person granted them their freedom or garments and he made them shrouds for a corpse, his deeds are binding.

When does the above apply? When the first person sold or gave as a gift the property to an outside party. If, however, the first person sold or gave them as a gift to his son or to another heir, his deeds are of no consequence.

Similarly, if he gave the property as a gift of a sh'chiv me'ra to an outside party, his deeds are of no consequence. The rationale is that the recipient of a gift given by a sh'chiv me'ra does not acquire it until after the sh'chiv me'ra dies, and when the first recipient dies, the property has already been acquired by the second person named by the original giver.

In the above situation, if the first recipient owes a debt or must pay his wife the money due her by virtue of her ketubah, and the court seeks to collect the debt from this property, even if the first recipient is still alive, the court does not collect the debt from the body of the property itself. Instead, only the proceeds from it are indentured.

If the first person dies and his creditor or his wife seeks to expropriate this property, nothing at all is expropriated for them. This applies even when he made them an ipotiki or designated them for his wife so that she could collect the money due her by virtue of her ketubah from them. Nothing is expropriated from this property, because it belongs to the second person.

When a sh'chiv me'ra says to an unmarried woman: "My property should be given to you, and after you to so and so," and then the woman marries, her husband is considered to be a purchaser, and the second person may not expropriate the property from him.

If the woman was already married when the sh'chiv me'ra said: "...and after you to so and so," the second person may expropriate the property from the husband. The rationale is that since she acquired the property on this condition when she was married, it is as though the sh'chiv me'ra told her explicitly: "After your death, so and so will acquire the property, and not your husband."

Therefore, if she sold this property while she was married to her husband, and then died while married to her husband, the property should remain in the possession of the purchaser. For if the husband expropriated the property from the purchaser because his wife sold it while she was married, the second person mentioned by the original giver may expropriate the property from the husband, and then the man who purchased it from the woman may expropriate it from the second person, for she sold the property to him, and the second person is entitled only to property that the woman left over. And the cycle could continue endlessly. Nevertheless, since the only one who spent money for the property is the purchaser, the property is allowed to remain in his possession.

An incident occurred with regard to a person who said: "Let my property be given to my mother, and after her to my heirs." He had a married daughter. That daughter died during her husband's lifetime, and also in the lifetime of her father's mother. After she died, the elder woman also died.

Our Sages said: The daughter's husband does not inherit that property, for it was only fitting for his wife to inherit, and she did not actually have a right to acquire the property until she had died.

If the daughter had left a son or a daughter, they would have inherited the estate, for the expression "heirs" used by the deceased includes even the heirs' heirs. And if the dying man had said: "When the elder woman dies, the estate becomes my daughter's retroactive to the present time," the daughter's husband would inherit it after his wife's death.

When a person has a legal record composed giving property to his son after his death, the body of the property becomes the son's from the time this legal record is composed. The benefit from the property is retained by the father until he dies.

Accordingly, the father cannot sell this property, because it has already been given to his son. Nor can the son sell the property, because it is under the father's control.

If the father dies and there is produce attached to the ground on this property, it belongs to the son. The rationale is that a person feels a closeness to his son. If the produce has already become detached or it is ready to be harvested, it belongs to the other heirs.

If the father transgresses and sells the property, the sale is binding until he dies. When he dies, the son expropriates the property from the purchaser. If there was produce attached to the property, its worth should be evaluated and credited to the purchaser, and the son must pay him for it. If the produce was detached or ready to be harvested, it belongs to the purchaser.

If the son transgresses and sells the property, the purchaser does not receive anything until the father dies. If the son sold the property during the father's lifetime, the son died, and then the father dies, the purchaser takes possession of the property when the father dies. The sale of the property by the son is not nullified, because the father possesses only the right to benefit from the property, and possession of the right to benefit from a property is not the same as possession of the property itself.

When the deed recording a gift given by a healthy person states that the gift takes effect "from today and after the person's death," it is considered to be a gift given by a sh'chiv me'ra. The implication is that although he acquires the body of the property from the day of the gift, he may not take possession of it and partake of its fruits until after the giver's death.

The following laws apply with regard to a deed recording a gift, which states that so and so should acquire a particular field after the death of the giver.

Whether or not the legal document records a kinyan, since it mentions a date and the giver was alive on that date, the date indicates that he transferred ownership of the property during his lifetime. The recipient may not take possession of it until after the giver's death.

This is certainly the intent. For if the giver's intent had been to transfer the property with this document after his death, he would not have dated it.

Therefore, even though the document does not state that the gift takes effect "from today and after the person's death," the recipient acquires the property after the giver's death.

The reason we write "from the present time" in a legal document although it is dated, is to clarify the matter, even though it is unnecessary.

When a healthy person gives a gift and composes the deed recording it saying: "During my lifetime and in my death," it is a completely binding gift, taking effect during the person's lifetime, for it states: "During my lifetime." The fact that it also states: "And in my death," is as if it states: "from now until eternity." It is an embellishment of the document.

Perfectly righteous men and men of spiritual stature would not receive gifts from other men. Instead, they would trust in God, blessed be His name, and not in generous men. And Proverbs 15:27 states: "One who hates gifts will live."

Blessed be God who grants assistance.