Lesson # 214 (Part 2 - Gifts - part XVI) • Ascertaining the Donee We are continuing on the subject of the Beth Din trying to
ascertain the intent of the donee who is dying. As shown in the last lesson,
over the centuries, certain expressions were held to mean certain things in
dividing the gifts of the dying person. Continuing on with those
expressions: Since the codes make a distinction between the wife and other women, it seems that the kinship is the determining factor. Thus, if the declaration was made to the donor's daughter, it seems to me that the law would be the same as for a wife. In a reported case in the thirteenth century, the following were the facts: Reuven, who was critically ill, declared as a gift causa mortis: "If my wife [who is now pregnant] gives birth to a son, the son shall receive two-thirds of my assets and my brother, the other third of my assets. If she gives birth to a daughter, the daughter shall receive one-third of my assets and my brother, two-thirds of my assets." The wife gave birth to twins, a boy and a girl. It was held that the newborn son of Reuven would inherit the entire estate. Since Reuven had disposed of all of his assets by the gift causa mortis, the gift had to be strictly construed according to its condition. The condition of having either a son or a daughter was not fulfilled, and the assets are to be distributed according to the Torah laws of descent of assets; the estate in this case was inherited by the newborn son, the only Torah heir of Reuven. "My friend Shimon shall receive all of my assets": After Reuven dies of the critical illness, a man named Shimon comes and states that he is the person intended by Reuven. If any of the natural heirs of Reuven is named Shimon, he will be given preference. If there is no such natural relative, then after Beth Din has thoroughly examined the matter, the man will receive the entire assets, even if it is known that there is another Shimon in the same community. Beth Din believes the first person named Shimon because it knows that he will be found to be a liar if he was not the intended person and would not place himself in such a vulnerable position. However, if Shimon is called Rabbi Shimon, (nowadays, the same would presumably apply if he was called Doctor Shimon, Professor Shimon, or any other title) he does not take the gift unless it can be shown that Reuven called him Shimon without referring to him as Rabbi Shimon. If two people named Shimon come to claim the assets, and if one of them is a Torah scholar, he will be given preference and receive the gift. If neither is a Torah scholar but one is a relative or a close neighbor, he will be given preference to receive the gift. If both are Torah scholars or close neighbors or relatives, then Beth Din shall decide what it thinks is the intent of the donor, according to what it believes is correct. The same applies if many persons named Shimon appear and each claims that he was the Shimon intended by Reuven. The foregoing, that Beth Din should try to determine the intent of Reuven, applies in the situation where Reuven makes a gift to Shimon. But if Reuven declares that he owes Shimon $100 and two persons called Shimon come, whether they come simultaneously or one after the other, to make the claim that Reuven owed the $100 to him, they each receive $50 The Beth Din is not trying to find intent but rather determine who is owed the money, and since they cannot, the debt will be divided equally between both claimants, if their claims are credible. There is an opinion that they divide the $100 only if they both come simultaneously, whereas if one came first he will receive the $100. There is an opinion that neither will receive the $100 unless they can substantiate the claim; instead, the $100 will go to the natural heirs of Reuven. We come now to a new topic. What if the dying person declared that no money should be expended on his funeral. Reuven, who is critically ill, declares that he does not want to be eulogized when he dies; he is not eulogized. The reason for the eulogy is to pay respect to the dead person, and he has waived the honor due to him. In this situation there is the command to pay respect to the words of the dead. Very often, in the case of great Torah scholars, they are eulogized even if they declared that they do not want to be. Reuven, who is critically ill, declares that he does not want to have any of his assets used to pay for his burial expenses. His wish is not adhered to. There is no reason for his heirs to be spared this expense from their inheritance and to have the community pay for the burial. The heirs are compelled to pay for the funeral out of the moneys they inherit from the decedent. Even if the heirs do not inherit anything from the decedent or did not receive enough money to pay for he funeral, if the heirs are in a position to pay for the funeral, it is their obligation and they may be compelled by Beth Din to pay for it. 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.
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