Lesson # 210 (Gifts - part twelve) • Words Indicating a Gift We continue with the topic of "words indicating a gift". Is it a gift or inheritance? There are times that the words employed by the critically ill person are words of inheritance rather than words of gift. If the donees mentioned in the declaration of the donor are his natural heirs, then the words will be given effect as words of inheritance if they do not comply with the criteria for gifts causa mortis. For example, the statement, "I leave to so and so," may be valid as either a gift causa mortis or an inheritance. If the language of the donor can be construed as either a gift or an inheritance to a natural heir, the language will be construed most favorably to the heir. Thus, if the language indicates a desire that the natural heir receive more than his normal share of the inheritance, he will receive the larger share, whether the Beth Din decides that the intent was for a gift causa mortis or for an enlarged inheritance. However, if the donee is not a natural heir of the donor, the gift will either have to be a valid gift causa mortis or will fail. If the donor leaves all of his assets to one of his sons, the son will obtain the assets as an inheritance. If the gift is not construed to be an inheritance, it will fail as a gift of all of the assets, and the son will be presumed to be a trustee of the assets of the donor- father for all of the brothers. Beth Din will have to decide each case in order to best comply with the intent of the particular donor. Shulhan Aruch, Hoshen haMishpat discusses four different situations, and each of these situations has several different fact patterns. In all of them, Beth Din is trying to ascertain the intent of the critically ill donor. What was the intent of his words when he made the statement? Did he mean his words to supplement the amount of money certain persons would have received in all events upon the death of the donor, or are they intended to be in lieu of the amount they would have received when the donor dies of his critical illness? If the words of the donor are clear, then there is nothing for Beth Din to ponder, they will give effect to his words. There are times when the words are not all that clear, and Beth Din must use rules of construction to give effect to the words of the critically ill donor. The four situations are: (a) the gift to the firstborn son; (b) the gift to a son who is not a firstborn; (c) the gift to the donor's wife; and (d) the gift to a creditor. We shall begin with the gift to the firstborn. A father cannot disinherit his firstborn son. The father can, during his lifetime, make as many gifts as he wishes, whether the gifts of a healthy person or gifts causa mortis. Thus, he can leave an estate devoid of any assets. If the father leaves any assets in his estate, the oldest son cannot be disinherited but must receive at least a double share in the estate. The other sons may be disinherited, or their shares of the estate may be reduced in favor of other sons. The same holds true of all other levels of the natural inheriting heirs. If there are no sons and only daughters, the father can divide the estate in any way that he wishes among his daughters, disinheriting those whom he wishes to disinherit and reducing and enlarging the inheritance of others. The Torah commands that the firstborn son shall inherit two shares of the father's estate. By firstborn son is meant that the son is the firstborn to the father. If the father has a daughter who is his firstborn, then the son who is born after the daughter is not the firstborn son. This assumes that the father left sons who survived him. The daughters do not inherit when there are sons or the descendants of sons surviving the father. The estate is divided into as many portions as there are sons, plus one more share. Thus, if the father leaves two sons, the estate will be divided into three shares. If he leaves five sons, the estate will be divided into six shares. The firstborn takes two shares, and the remaining brothers receive one share each. Assume that Reuven has three sons: Shimon, the firstborn; Levi, his second son; and Yehuda, his third son. There may also be daughters born to Reuven, but born after the birth of Shimon. (1) Reuven, a critically ill donor, declares, "Give $200 to my firstborn son Shimon, in accordance with his due. The donor dies from this critical illness. Traditionally, the words, "in accordance with his due," are construed to mean in addition to the share that Shimon would receive as a natural heir of the donor (as the first born). (2) Reuven, a critically ill person, declares, "Give to my son Shimon $200 as his firstborn portion." The donor dies from this critical illness. Shimon will not receive both the $200 and his share of the assets as a firstborn son. But he retains the upper hand. He may take the $200 or the share he is entitled to receive as a firstborn. (3) Reuven, a critically ill person declares, "Give to my firstborn son, Shimon, $200." The donor dies from this critical illness. There are two traditional views, one holding that this is equivalent to the case (1) above, and that Shimon will receive $200 in addition to his double share of Reuven's estate; the other view holds that this declaration is equivalent to case (2) above, and that Shimon will take $200 or his double portion, whichever he selects. If the gift is to a son who is not a firstborn son, then we
have two situations: (2) Reuven, who is critically ill, declares, "Give my son $200." The donor then dies from this critical illness. There are two views: that Levi will receive only $200, and that he will receive the $200 in addition to his regular share of Reuven's estate. Then there is the situation of the gift to the donor's wife. (2) Reuven, a critically ill person, declares, "Give to my wife, Sarah, $200 as her kethuba portion." The donor dies from this critical illness. Sarah will not receive both the $200 and her kethuba. But Sarah has the upper hand. She may take the $200 or the kethuba that she is entitled to receive as a widow. (3) Reuven, a critically ill person, declares, "Give to my wife $200." The donor dies from this critical illness. There are two traditional views, one holding that this is equivalent to case (1) above (Sarah will receive $200 in addition to her kethuba as a widow of Reuven); the other view holds that this declaration isequivalent to case (2) above (Sarah will take $200 or her kethuba, whichever she selects). Then there is the situation of the gift to the creditor. (2). Reuven, a critically ill person, declares, "Give to my creditor Isaac $200 as payment of my debt." The donor dies from this critical illness. Isaac will not receive both the $200 and payment of his debt. He will receive only the amount of the debt. Isaac does not have the choice of receiving $200 or the amount of the debt. (3) Reuven, a critically ill person, declares, "Give to my creditor Isaac $200." The donor dies from this critical illness. There are two traditional views, one holding that this is equivalent to the case (1) above (Isaac will receive $200 in addition to the repayment of the debt); the other view holds that this declaration is equivalent to case (2) above; (Isaac will take $200). The subject matter of this lesson is more fully presented in
Volume VII Chapters 253 of"A Restatement of Rabbinic Civil Law" by E. Quint,
published by Jason Aronson, Inc. and on sale at local Judaica bookstores. [The Parshat
Chayei Sara Homepage]
|
