Lesson # 235 (part one) • Property of a Proselyte dying without heirs
These are the last lessons dealing with acquiring property, whether real estate or personal property other than by purchase, or by gift, or by inheritance. After Rabbi Yosef Karo in Shulhan Aruch states the laws of found property, that a finder may sometimes keep the objects that he finds for himself, he sets forth the laws of ownerless property and the property of a proselyte who died without heirs, so that his property is now also ownerless. The laws of these lessons are rather unlikely to be practiced.

Even if there should be a proselyte who dies without heirs according to halacha, the laws of the land will usually hold that he has heirs according to the status that he had prior to his conversion to Judaism.

Assume that a non-Jew converts to Judaism. This assumes that all of the laws of conversion have been scrupulously followed. When the proselyte becomes a Jew, he is no longer related to former relatives according to halacha. Thus all of his relatives, his wife, his parents, his children, brothers, and sisters are not recognized in halacha as his relatives. Unless otherwise noted, the proselyte spoken of in these lessons is a proselyte who dies without leaving any heirs. The person who attempts to acquire the ownerless property of the deceased proselyte is designated as "Shimon:” Whenever a marriage is spoken of (unless otherwise noted) it means a marriage according to halacha.

A person is born Jewish only if his mother at the time of his birth is Jewish, whether the mother was born Jewish or converted to Judaism prior to the child's birth. The religion of the father does not determine the religion of the child. Thus when a Jewish woman gives birth to a child, the child is Jewish regardless of the religion of the father. And if the mother is not Jewish at the time she gives birth, the child is not Jewish regardless whether the father is Jewish. Should the non-Jewish mother convert to Judaism after she gives birth to the child, the child must undergo its own conversion to be Jewish. Therefore: (i) if the proselyte, before he converted, fathered children by a non-Jewish mother, the children are not Jewish. (ii) If after his conversion he fathers a child by a non-Jewish mother, the child is not Jewish. (iii) If before his conversion the proselyte fathered children by a Jewish mother, his children are Jewish. (iv) If after his conversion he fathers children by a Jewish mother, his children are Jewish.

When a Gentile converts from any other religion to Judaism, he is considered to be a newborn person. All former relatives are no longer his legal relatives. His prior marriage is not considered a marriage and his wife is not his wife according to halacha. After his conversion, the proselyte, whether or not he was married before he converted: (a) might not ever marry; (b) may marry his former wife, if she is Jewish when they now get married, either because she was born Jewish or converted to Judaism prior to this new marriage; or (c) may marry any other Jewish woman. The proselyte has to comply with the laws of the land against bigamy if he marries a woman who was not his wife before his conversion and he did not divorce her according to the laws of the land... When he now marries a Jewish woman she is his wife in halacha and children born to them are his recognized children according to halacha. They are his children but not his heirs if conceived prior to his conversion. Thus if the proselyte does marry and raise a family after he converts, the children conceived after his conversion are his heirs, the same as the family of any other Jew. If the child was conceived prior to his conversion, even if the mother was Jewish prior to conception of the child, the child is not considered heir to his property.
If the proselyte dies without having any children conceived after he converted, and if he left no will disposing of his assets, his objects, both real estate and personal property, are ownerless. According to halacha, children conceived before he converted are not considered heirs in case of his dying without a will.

Assume that it is rumored about that a proselyte died without heirs. Jews seized his assets. It is then rumored that he did not die, or that if he did die but he has surviving him a child conceived after he converted or a widow who is pregnant by him after his conversion. The Jews must return the assets that they seized. In the case of the pregnant wife, if she gives birth to a child who was conceived after the proselyte converted, the assets will belong to the child. If it turns out that the rumors were .true, that he died without heirs or that his child died before the proselyte died, or that his wife had miscarried, then it belongs to whoever thereafter seizes the objects, and not to the first Jews who had seized and then returned his assets.
As is the situation with all ownerless objects, whoever performs an act of acquisition on the object, with the intent to acquire the object, acquires the object. The act of acquisition may be done by an agent on behalf of Shimon. The act of the agent is the act of the principal, even if the agent did not realize that the real estate belonged to the proselyte and that by his act he is acquiring the real estate for the principal.

If Shimon digs (or performs some other act of hazaka), thinking that he is digging on his own field, Shimon does not acquire the field of the proselyte since he lacks the requisite intent to acquire the field of the proselyte.

However, if Shimon digs in a field that belonged to proselyte 2 (who died heirless), thinking that it belonged to proselyte 1 (who died heirless), hoping to acquire the real estate of prose- lyte 1, the real estate of proselyte 2 in which he dug belongs to Shimon, since he intended to acquire ownerless real estate.

The person acquiring the objects of the deceased proselyte is not obligated to pay for his funeral expenses. The reason given is that as soon as 'the proselyte dies”, his objects are immediately ownerless.

There is no lien on his possessions for his funeral expenses that have not yet been incurred. The same holds true if a creditor seizes the property of a deceased debtor to the extent necessary to repay his debt; he is not obligated to pay for the debtor's funeral out of the property that he seizes. There is also a dissent that holds that it is not equitable to have a person acquire the dead proselyte's assets and not use some of it to pay his burial expenses. This may lead to quarrels between the people who will bury the proselyte and those who have seized his assets.

When a proselyte dies heirless, all of the debts due to him are cancelled. A proselyte lent money to Yehuda and received collateral security. The proselyte died in possession of the collateral. Naftali seized the collateral from the house of the proselyte. Naftali must return the collateral to Yehuda.

The same holds true if the proselyte held a mortgage on the field of Yehuda, as soon as the proselyte died, the mortgage lien is terminated and Yehuda owns he real estate free of the lien.

The proselyte owed money to the Jews and he died heirless. Other Jews seized the assets of the proselyte. They must restore the assets to the creditors of the proselyte in inverse order of the seizings.
The subject matter of this lesson is more fully discussed in volume VIII chapters 273 of A Restatement of Rabbinic Civil Law by E. Quint. Copies of all volumes can be purchased via email: orders@gefenpublishing.com and via website: www.israelbooks.com and at local Judaica bookstores. Questions to quint@inter.net.il.

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