Lesson # 211 (part 3 - Gifts - part XIII) - Words Indicating a Gift

Reuven, who is critically ill, makes a single declaration, orally or in writing, without pausing between the gifts, stating that he gives the following gifts made in apprehension of imminent death or as gifts causa mortis: $200 to Shimon, $300 to Levi, and $400 to Yehuda. There is no priority among the donees in this case either since Reuven did not pause while making the oral declaration or since they were all included in the same memorandum of the gift. Reuven dies of this critical illness and leaves assets totaling only $700, which is $200 short of the total of his gifts. The donees must proportionately share the $700. Shimon will receive $155, Levi will receive $233, and Yehuda will receive $312.

Assume the same gifts and that Reuven dies leaving an estate of $900, sufficient to pay them all. Reuven also leaves a debt of $450, exactly fifty percent of the assets that he gave away as gifts. The gifts are subject to the payment of the donor's debt. Each of the donees will pay his proportionate share of the debt: Shimon will pay $100, Levi will pay $150, and Yehuda will pay $200.

Reuven, being critically ill, makes three separate declarations of gifts causa mortis or in apprehension of imminent death. First he declares that he gives $200 to Shimon. Some time thereafter, he declares that he gives $300 to Levi. Finally, some time thereafter, he declares that he gives $400 to Yehuda. These are treated as giving priority in the order in which the gifts were declared, with Shimon's gift having the most priority, Levi's gift having the second highest priority, and Yehuda's gift having the lowest priority. If Reuven dies of the same illness and leaves assets of only $600, Shimon will receive $200, Levi will receive $300, and Yehuda will receive only $100. If Reuven leaves only $400, Shimon will receive $200, Levi will receive $200, and Yehuda will receive nothing.

Assume Reuven makes the same gifts as stated in the prior paragraph and leaves assets of $900, enough to pay all three gifts. Reuven also leaves a creditor to whom he owed $800. Yehuda will lose his $400 gift, Levi will lose his $300 gift, and Shimon will lose $100 from his gift.

If the debt was $500, Yehuda would lose his $400 gift, Levi would lose $100 from his gift, and Shimon would not lose anything.

Assume that Reuven gives a gift causa mortis to Shimon of $400 and leaves an estate of $300 after the gift to Shimon is paid. Reuven's son Yaakov inherits the $300. Assume that when Reuven dies, he owes $200 to Avraham. The entire $200 will be paid by his son Yaakov who stands in the place of his father. However, if Reuven declares, "Give my son Yaakov $300," and then declares, "Give Shimon $400," the entire debt of $200 to Avraham will be paid by Shimon.

As in all aspects of the gift causa mortis, the witnesses must present the words of the critically ill donor as precisely as they can remember, and therefore they must, when possible, put in writing as quickly as possible the donor's exact words, since they may be controlling to show the donor's intent. As seen in this lesson, the words can determine whether to decrease the gift if there are losses or shortfalls in the estate. In all cases of doubt, the law will side with the heirs since the distribution of the assets of the estate to them is mandated by the Torah; the gift causa mortis is Rabbinically ordained, and must, in cases of doubt, yield to the Torah heirs.

When Reuven, the donor who is critically ill, declares a gift causa mortis of "$200 for Shimon" or "$200 from my [Reuven's] assets," even if Reuven suffers losses after the gift is declared the estate must pay the $200 to Shimon. If the estate does not have cash to pay the gift to Shimon, it must sell assets to pay the $200. However, if the losses occur after the death of Reuven, then Shimon shares in the losses.

Assume that Reuven, before making the gift causa mortis to Shimon, enumerates all of his assets and then states that the $200 gift is to be given to Shimon. When the assets are gathered, it is evident that the assets were worth less than Reuven had stated. In that case, the gift to Shimon will be reduced proportionately.

There are times when the donor wants the gift causa mortis to be given to the donee from a specific source; there are times when he intends that the gift come from his general estate after he dies. There are different legal results depending upon the intent of the donor. If the gift is from a specific source, what if the source is lost, stolen, or destroyed? If not from a specific source, what if part of the estate is lost, stolen, or destroyed? Does the donee have to share such a loss with the donor's heirs?

Reuven, who is critically ill, declares that he wants Shimon to be given $200 as a gift causa mortis or as a gift in apprehension of imminent death. Since the $200 represents less than all of the assets of Reuven, it cannot qualify as a gift causa mortis unless the donor specifically designates it as such or as a gift made in appre- hension of imminent death. This gift is both general and specific. This is a general gift insofar as not designating specific assets from which it should be given; it is specific as to being one of money only. Shimon will receive the $200 from the general assets of Reuven.

Reuven declares that he wants a gift causa mortis of $200 to be given to Shimon from the money that is in the vault in the former's study. Although this is specific in two ways, being of money only and being money from a specified source, the gift to Shimon can nevertheless be given from any of Reuven's moneys. However, if the money is stolen from the vault or the money in the vault is lost in any other manner, Shimon will not be given the $200 gift.

Reuven declares that he wants Shimon to be given a gift causa mortis of $200. Reuven's entire estate, upon his death from that same critical illness, is $500, which means that Shimon will be given $200, and the heirs of Reuven will receive the remaining $300. However, Shimon will receive $200 only if there is at least $200 cash among the assets of Reuven. If there is less than $200, Shimon will receive a lesser amount, and if there is no cash, he will receive nothing. If Reuven is owed money by debtors, it is not included as money for the purpose of the gift. The situation is different if the gift is not of cash but rather refers to $200 worth of Reuven's assets. If, of the $500 estate, $100 is stolen or lost in some other way, Shimon will bear two-fifths of the $100 loss and the heirs of Reuven will bear three-fifths of the $100 loss.

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.
Questions to quint@inter.net.il

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