Bava Batra (8:5) | Yisrael Bankier | 12 years ago

The Torah (Bamidbar 27: 8-11) sets out strict guidelines regarding the rightful heirs. We also learn about the hierarchical system the determine who inherits the deceased’s property in the absence of those initial heirs (8:2).

This system is described in the Torah as “chukat mishpat” (a statute judgement) such that one is not allowed to divert from this system. One example of this is that which we learnt (8:5) that even if one said, “my son will not inherit with his brothers” it is meaningless and has no effect.14

One might understand these laws as the Torah dictating how a deceased person’s property is to be transferred or divided. The Sefer HaChinnuch (400) however explains that:

…the rights of the heir are attached to the property of the one who leaves it to him, and as the power of the one who leaves the legacy is removed from the property, upon his death, the rights of the heir take effect over it immediately paralleling [natures lifecycle in which young replace the old].

It appears that there is no break; no settlement period. Rather the heirs have a connection to property. When a person passes away, their own right disappears; one cannot take their worldly possessions with them. Consequently the transition is immediate.

There is one exception where a person may alter some components of the inheritance. We learnt (8:5) that R’ Yochanan ben Bruka maintains that the Torah also gave one the ability (in his lifetime) to select a single person as the sole heir from a pool of rightful heirs. The two examples brought are selecting one son from many sons and selecting one daughter from many daughters.

We have learnt however that in the absence of sons and daughters (and a father) the brothers share the inheritance. One question may be asked, in such a case can one select one brother as the sole heir? Is there any reason to differentiate?

R’ Akiva Eiger (Choshen Mishpat 281) explains that it depends on how the brothers become the heirs. If they are the heirs directly15 then the principle should applicable in the same way as it is regarding sons or daughters. However there is another way to understand how the brothers become heirs. It might be that in the absence of sons and daughters, the deceased’s father becomes the heir, even “in the grave”. As the father has also passed away, then the deceased’s brothers inherit by virtue of them being the heirs to the father’s property.16 In such a case, the person would have no control of the allocation and would not be able to isolate one brother over the other brothers.

The Rambam (Nachalot 6:2) writes that same rule applies to selecting one brother from many. Consequently R’ Akiva Eiger maintains that the Rambam must understand that the brothers are direct heirs (the first understanding).

The Ktzot Ha’Choshen (281:2) however maintains the Rambam can hold that one may isolate one brother yet still hold that the brothers are only heirs via the deceased’s father. He argues that the Rambam may understand that since the father (who inherits “in the grave”) does so only by virtue of the deceased, the deceased maintains the right to channel the inheritance in such a manner.

14 For those interested in the validity or possible options regarding modern wills, please consult your local Halachic authority.

15 Beit Yosef, Choshen Mishpat 253.

16 This is the understanding of the Darkei Moshe (Ibid).


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