In the last lesson we commenced the discussion of a wife who amasses property in her own name including instruments of indebtedness. All this while managing her husband's property.

In some societies most women are given money by their husbands for household expenses and their necessities, and thus they manage his money. Unless shown otherwise, it is presumed that a wife who is at home is managing her husband's property while she is at home. There is also a presumption that since all of the wife's property was given over to her husband as part of the dowry (see last week's lesson regarding pre-nuptial agreements) then all of the property in her possession is her husband's even if she is named in the deed for the real estate. There is also no presumption in favor of the wife if the property stands in her name, since the husband may have any variety of reasons for putting the property in her name.

If a wife manages her husband's property and has instruments of indebtedness (showing that people owe her money) or real estate in her name, and she alleges that they belong to her and are not her husband's, and the husband alleges that she amassed the property whole managing his money and his property, the burden of proof is on the wife. She must prove that she had her own funds that she received after the marriage, and to which her husband is therefore not entitled as part of the dowry. If she does not prove her pleas with the testimony of two witnesses that the deeds and instruments of indebtedness and that are in her own name are her own, then the presumption in favor of the husband will apply and he will win the lawsuit.

However, if the wife can prove that she had received independent moneys after the marriage, then she will obtain the deeds and notes of indebtedness, that stand in her name. She need not trace the moneys to the individual deeds. It is sufficient if she can show independent moneys received by her during the marriage period until the dates of the deeds. She is then believed to plead that she bought the properties from her own funds and that she loaned moneys which loans are evidenced by the instruments of indebtedness.

The foregoing need for proof apples to instruments of indebtedness given to the wife by third parties. If the instruments are given by the husband, however, she may keep them as her own without bringing proof of independent money acquired after entering the marriage. If such instruments and deeds given by the husband are held by the husband, then it is presumed that they belong to the husband and that he used his wife's name for his own purposes. He may have done so to avoid paying creditors or taxes, or that they could avoid communal obligations by pleading that he had no assets in his name.

If both the husband and wife are dead when the case arises, then it is presumed that all of the deeds and instruments in the wife's name were hers, and the burden of proof is on those who contest this conclusion to prove otherwise.

If the wife does not manage her husband's property, then all of the deeds and instruments of indebtedness in her name are presumed to belong to her, since she had no access to her husband's funds and therefore could not have been a trustee on his behalf. If the deeds and instruments of indebtedness are in the names of both the husband and the wife, then it is assumed that they belong to them equally.

That which has been said regarding the wife also applies to the case in which a son manages his father's property, provided the son is still dependent upon his father for funds and thus could not possibly have amassed the deeds and instruments of indebtedness that stand in his name.

If brothers who live together entrust one of them to manage their affairs from their home, and the deeds or instruments of indebtedness are then amassed by the managing brother in his name, it is presumed that they are the property of all of the brothers. If the managing brother alleges that he inherited money or deeds from his mother (the brothers had different mothers) or that he found them or received them as a gift, then the burden of proof is to him to establish the facts. If he dies, then his heirs need not establish the facts, rather the surviving brothers must establish the facts that they are entitled to their share of the deeds or the instruments of indebtedness. While he is alive it is possible to question him about the deeds and instruments of indebtedness that stand in his name. After he dies, then the presumption that a deed or instrument is owned by the person named therein will prevail unless it can be proved otherwise. That which has been said about the brothers bearing the burden of proof when he is alive applies when the brothers funds are all pooled together. But if they had separate expense and income accounts, or if the brother had other businesses besides the family business then he is believed when he alleges that the instruments of indebtedness and deeds solely in his name belong solely to him. If the brothers claim with certainty that the deeds and instruments of indebtedness were acquired with their joint moneys, then he may have to take an oath to sustain his position.

The laws that apply to wives and brothers do not apply to an unrelated person who manages the owner's property. All that is in his possession not applicable to the business of the owner belongs to the manger, including all personal property, deeds for real estate and instruments of indebtedness in his name. However, if the personal property, deeds or instruments are known to have once belonged to the owner, then the manager must prove that they now belong to him, such as through gift or purchase.

Nowadays a great deal of the foregoing is obviated by agreements between parties and by being able to trace money through checks or other manner of transfer.

As for last week's example how a wife amassed $5,000,000 from $1,000 a week allowance, it is obviously a case of good management.

The subject matter of this lesson is more fully discussed in Volume 2, Chapter 62 of A Restatement of Rabbinic Civil Law by E. Quint and on sale at local Judaica bookstores.

Address comments to quint@inter.net.il

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