Siman 246

Even though regarding a gift we are only to look at what was written in the deed, nevertheless, the Sages, of blessed memory, said that sometimes when the presumption is great that the giver did not intend for this, or that he erred regarding the essence of the gift, or that his intention was presumably for something else, we act according to the presumption and we nullify the deed. However, we are not to make presumptions of our own, but only what the Sages, of blessed memory, said and their like. And in such cases, we always presume the mind of the giver; if the matters show the finality of his intent, we act according to the presumption even though he did not specify. See in siman 408. And the primary law of presumption is in Bava Batra [146a]:

How so? One whose only son went to a country overseas and he heard that he died, and he wrote all his property as a complete gift to others, and afterwards his son arrived, his gift is not sustained and it is void, for the circumstances prove that had he known his son was alive, he would not have given all his property to others, and it was a gift in error. And it appears to me that the same law applies if he had many sons and one of them went to a country overseas and he heard that he died, and before the death of the father he divided all his property among the sons who were here, and after his death the son arrived, he takes his portion in the inheritance, for had he known that this son of his was alive, he would not have removed him from his portion of the inheritance, and it turns out that his division was in error. And the Rambam wrote in the sixth chapter of Hilkhot Zekhiyah regarding the case where his son went to a country overseas and he wrote all his property to others and afterwards his son arrived, the gift is void; this is specifically when he did not reserve any of his property at all, but if he reserved any amount, whether land or movable property, we do not remove it from the recipients, for there is room to say that this small amount he left, he left for his son if he is alive, for if not so, why did he leave this small amount? And it appears to me that the Rambam, of blessed memory, who wrote that when he reserved a small amount his gift is sustained, his intention is specifically when the recipient is in possession, but if he did not yet take possession, we do not remove it from the hand of the heir, for this is like a legal doubt. And some say further that the opinion that will be explained in siman 250 regarding the gift of a shekhiv mera, that it is not called a reservation unless he reserved enough for his livelihood, the same applies here [Taz]. And some say that here even any amount is considered a reservation because the assessment is not so great now as to remove it from the recipient of the gift [Sma]. And the first opinion appears primary [for in Bava Batra 146b it compares them to each other, and furthermore, the Maggid wrote there that the reason Rav Nachman did not count it on page 150b among those five is because he counts shekhiv mera, and if their law were different it would be difficult; and study this carefully].

There is one who says that this law applies only to a shekhiv mera, for it is a valid assessment; but regarding a healthy person, the assessment is removed, for just as he was not concerned for himself to have that with which to support himself, so too he was not concerned for his son, and the assessment for his son is no greater than for himself. Therefore, regarding a healthy person who wrote "from today and after death," since all the days of his life the property belongs to himself, the assessment returns to its place and the gift is void, for he was concerned for his own soul. And there is one who says that even regarding a healthy person it is an assessment and the gift is void, for a person is more concerned for his son than for himself [this opinion is in the Tur, and in Bava Batra 146b it implies somewhat like the first opinion].

There is one who says that we have learned from this that the same applies to a healthy person who wrote over all his property to another because he needed to flee from enemies or for another reason, and afterwards he reached a compromise with his enemies or they died; if it is clarified that he only wrote this gift because of this, since the hour was pressed for him, the gift is void. For this assessment is no less than the assessment of one who heard that his son died. And even according to the opinion that this only applies to a shekhiv mera, it is simple that this is similar to a sick person since he needed to smuggle his property [Beit Yosef].

An incident occurred involving Reuven and Shimon, brothers who needed to sell a courtyard they inherited from their father, and Reuven was not at the location of the sale. Shimon wrote to him that he was unable to sell unless Reuven sent him a deed of sale for his portion, and Reuven did so. Shimon then sold the courtyard. In that place, there was a custom that some manner of chazakah and right remained with the seller, and Reuven claimed half of this chazakah and right. Shimon responded: You already sold me your half, and you have no portion in this right. They ruled that the law is with Reuven, for you have no greater assessment than this: that his entire sale to his brother was only so that Shimon would have the ability to sell the courtyard, and not to remove himself from every right [Rashdam, siman 253].

Reuven, who had no offspring and wrote all his properties to others "from today and after death," and afterwards was merited with offspring—it is a great assessment that had he known he would be merited with offspring, he would not have written his properties to others [Maharam]. And even though it is not similar to the assessment where his son died, where it was revealed that it was a falsehood and it was a gift given in error, and here there was no error, nevertheless, it is similar to the gift of a shekhiv mera regarding all of it, for if he recovered he may retract because we are witnesses that his intention was only if he should die; and so too here, we are witnesses that he only intended it if he would not be merited with offspring.

Our sages, of blessed memory, stated another assessment [131] that one who had many sons and wrote all of his properties to one of his sons, he only made him an apotropos, and he has no more in the properties than one of the brothers. And even if he lengthened the language of the deed with all the improvements of a deed, nevertheless, it is an assessment of intent that he only intended that his brothers should listen to him. And whether he was healthy or whether he was a shekhiv mera, and even if that son to whom he wrote all his properties is a minor and lying in a cradle, nevertheless, we say that because he loved him more than all his sons, he wanted them to honor him since he would be the apotropos when he grows up. And the reason for the assessment is because there is no logic at all that a father would give all his properties to one son and transfer the inheritance from the rest of his sons. Therefore, if he reserved any amount, whether land or movable property, the son acquired the gift, for if he had intended for an apotropos, why did he not also make him over this reservation? But if he wrote this language, "that my son so-and-so shall be ruler and governor over all that I have," even in such a case it is not the language of a gift but rather an apotropos, as is written regarding Eliezer the servant of Abraham, "and that he was ruler over all that he had," for he was the steward of his household [this must be the intention of our teacher, the Rema, at the end of section 4, and it refers to what was stated above, for if not so, what is he coming to teach us? And examine this].

And if he specified in the deed that he is granting him a complete acquisition and not by way of apitropsus, or if he specified in the deed that he shall be permitted to sell and give to others, it is evident that he intended a complete gift. And likewise, if he wrote to him "movables incidental to land," it is evident that he intended a complete gift, for if his intention were for apitropsus, he would not have required an acquisition. And likewise, if he granted it to him with a kinyan and wrote the kinyan within the deed, since he strengthened his hand to such an extent, certainly he intended a complete gift. And there is one who says that even though he gave it to him with a kinyan and they wrote it in the deed, he only made him an apitropsus [Nimukei Yosef]. And some say further that even when strengthening his hand, such as where he said "give all my property to so-and-so my son" and even "write it," even so he did not acquire, even with a kinyan [Tur].

And anything written in the deed of gift with language from which it can be proven that he intended a complete gift, he acquires it; and all the more so if he writes a justification in the deed as to why he is giving him all his property, that he acquires it. And in any case where there is doubt regarding the language of the gift as to whether he intended a complete gift, it is upon the recipient to bring proof, for the property stands in the presumptive possession of all the heirs, and he alone comes to extract it from them, and the burden of proof is upon the claimant.

And this which we said, that he made him an apotropos, this is specifically when he wrote for him in a deed the language of a gift, or he commanded witnesses to write for him and they wrote for him during his lifetime, or if he said to witnesses, "Give to so-and-so my son my property," and they wrote him a deed as a memorandum, or if he said, "Give to him and also write," for then even if they did not write during his lifetime he is an apotropos; since he said "and also write," he revealed his mind that he was not particular about the writing of the deed except as a mere preference, and all the more so when he said they should write as a memorandum or if he did not mention the writing of the deed at all. But if he said to witnesses, "Write and give to him all my property," and they did not manage to write during his lifetime, he does not even have the status of an apotropos, for we fear perhaps he did not resolve to make him an apotropos except through a deed, and there is no deed after death [Nimukei Yosef, and this is the intention of the Tur and Shulchan Aruch in section 8].

One who wished to say that this which the sages said, that they only made him an apotropos, is only if the rest of the heirs are minors who require supervision, but when they are adults he certainly intended a complete gift—all the great authorities disagreed with him, for there is no distinction in this. And his intention was that they should show honor to this son and that he should be the leader of the properties so that his brothers will honor him. However, according to this, one must ask: since this law applies even when they are adults, until when shall he be an apotropos? For it is not logical to say that they should forever be together and not divide among themselves. And it appears to me that this is only until they all agree to make a division among themselves, and as long as they do not all agree, he is an apotropos; and it requires further study.

Since this law is like a decree without a stated reason, to uproot an explicit gift due to an assessment of intent, therefore you have only that which the sages, of blessed memory, stated. And this law applies only to a son among sons; but if he wrote to a son among daughters and the daughters inherit—for example, if they are the daughters of his sons who died in his lifetime—or to a daughter among daughters, or to a daughter among sons, or if he has no offspring and other relatives are his heirs and he wrote all his property to one of the relatives, his gift is valid. And there are those who say that a daughter among sons or among daughters, her law is like a son among sons, for in these cases as well he is concerned for their honor, that the other heirs should honor them; but regarding a son among daughters, it certainly does not apply that he was concerned for his honor, for even without this they will honor him.

And some say further that this law only applies when he wrote with the language of a gift, for being an administrator is somewhat in the category of a gift since he is the one who takes out and brings in the properties. However, if he wrote with the language of inheritance, such as if he was ill and said or wrote "my son so-and-so shall inherit all the properties," he inherits all of them, as was written in siman 281. And some say that specifically if he spoke, but in writing he only made him an administrator; for regarding one who writes, we say that his intention was to distinguish him and honor him, as writing has publicity. But regarding speaking, in any case he acquires completely, whether he used the language of inheritance or the language of a gift, for certainly he intended a complete gift and a complete inheritance, as there is no honor here in mere speech. And this is the opinion of the Rif and the Rambam in chapter 6 of Nachalot, see there.

One who writes all his property to one of his sons and to another person, such that he wrote "all my property to so-and-so my son and to so-and-so the other person," the other person acquires half of the property completely, and the son is only an apotropos over the second half. And it is not only necessary to say if he wrote the half to the other person first and the remainder to his son, for at the time he wrote to the son it constituted all his property, but even if he wrote to the son and to the other person simultaneously, we consider him like one who writes all his property to the son since he did not withhold anything of the property after the gift to his son [Tur]. And some say that if he wrote in the deed "half my property to my son and half my property to so-and-so," it is a complete gift also to the son, for since he mentioned the son first, it is like one who gives a portion of the property, since he did not write "all my property is given to my son and to so-and-so." Therefore, if he wrote "two-thirds to my son and one-third to so-and-so" and the like, where the portions are not equal, he is only an apotropos, for he could not have included them together since their portions are not equal.

If he had many sons and wrote all of his property to two of them, both are apotropoi. And if he wrote "half of my property to my son so-and-so and half to my son so-and-so," for the first it is a gift, as there was a remainder in his case, and the second is an apotropos over the second half; for since he did not include them together, it appears that such was his intention. And the first also has a portion in the other half like the rest of the sons.

It is a simple matter that all of this applies when one writes over his properties to take effect after his death; however, in a deed of a gift of a healthy person to one of his sons, since he gave him a gift during his lifetime, the son has acquired it even if he wrote over all his properties to him, and the rest of the brothers have no portion in them at all. But if he wrote "from today and after death," the law of which is like the gift of a shekhiv mera as has been written in siman 257, he has only made him an apotropos [it appears to me].

And likewise, one who writes all of his property to his wife, he has only made her an apitropa, and it was explained in Even HaEzer siman 107. And all the more so when he wrote that she should be the "lady of the house" or "ruling and controlling," for she is only an apitropa. And there in siman 106 it was explained regarding one who writes his property to his sons and wrote to his wife any land at all, that she has lost her ketubah. And likewise, in one who writes all of his property to his wife and a debt document predating this gift emerged against him, she has lost her ketubah. And likewise, it was explained there in siman 108 regarding a shechiv mera who said, "my wife shall take like one of the sons," she takes like one of the sons in addition to her ketubah. And there in siman 90 the law of a "mivrahat" was explained; see there.

All those who give all their properties and the gift was canceled and the properties return to the original owners—such as in the case of one who heard that his son died and the son arrived, or one who was fleeing and returned, or a shekhiv mera who rose from his illness—all the fruits that the recipient consumed until the time of the cancellation of the gift, what he consumed, he consumed, and he is not obligated to return them. For this is no worse than a gift on condition to return it at a fixed time, where he consumes the fruits until that time. For they did not say that one must return them except when the essence of the giving was in error, but all of these are not relevant to be called an error, for even now he would desire their gift were the matter not reversed; it follows that regarding the fruits, it was a complete gift until now. However, regarding the fruits that are found in existence in his hand, it is implied from the Tur that he must return them, and there is one who says that he does not need to return them [Sma]. And the first opinion appears primary [and the author took the language of the Rambam, for if not so, behold the Tur cited the language "that he consumed" from the language of the Rambam; learn from this that he holds that the intention of the Rambam is also thus]. Furthermore, it appears to me that in a gift of a shekhiv mera of all his property, he must return the fruits he consumed, for behold, a gift of a shekhiv mera only effects acquisition after death, and how could he consume them during his lifetime? [And the words of the Sma, subsection 23, require further study]. And there is one who says further that even in the case of one who heard his son died, he returns the fruits he consumed, for this is certainly a gift in error, and this law only applies when he wrote for the purpose of smuggling [Lechem Mishneh, chapter 6 of Zekhiya, halakha 13].

Our teacher, the Rema, wrote in section 17: One who says to his fellow, "Eat with me," he must pay him, and we do not say he is giving it to him as a gift. Thus far his words. For since he benefited, he must pay. And it is not similar to what was written in siman 363, that if he said to him, "Dwell with me in my courtyard," he is exempt from payment, for there he did not benefit since he is a person who does not typically rent. And all the more so it is not similar to "Tear my garment," which will be explained in siman 380. And this person cannot say, "I would have fasted" or "I would have eaten bread and water," for in any event he benefited from that which belongs to another and must pay for what he benefited [Ktzot HaChoshen]. And behold, even for his animal that ate, he pays for what it benefited. And all this is when it appears that this person who called him to eat did not intend to feed him for free, such as one who sometimes sells food items in his home, or an innkeeper and the like. But if the matter is evident that he called him to eat for free, such as a homeowner who calls his friend and the like, or if the guest is accustomed to eating regularly with others for free, and all the more so if he is a poor person, he is exempt from paying. See what I wrote in siman 60. And even when he must pay, it appears to me that he only pays at a cheap rate; see in siman 391.

He further wrote: Therefore, one who feeds his son-in-law along with his daughter for longer than the time he fixed for him for maintenance, the son-in-law must pay him for his maintenance when he claims it from him, but not for the maintenance of his wife. Thus far his words. And even if he was accustomed to giving his sons-in-law maintenance beyond his obligation, nevertheless he can say to them: "To them I wanted to give, but to you I do not want to give" [Sma]. And regarding the maintenance of his wife he is exempt, for in any case, one who feeds the wife of another has placed his money on the horn of a deer, as is written in Even HaEzer siman 70. He further wrote that this is specifically where there is no proof that he gave it to him as a gift; but where it is proven that he gave it to him as a gift, and only afterwards a quarrel broke out between them and therefore he claims from him, he is exempt. Thus far his words. And behold, this is obvious: when he is accustomed to giving his sons-in-law more than his obligation, you have no greater proof than this that he gave it to him as a gift, for why should we say that he changed for this son-in-law from the others? And even if he is his first son-in-law, behold we see deeds every day where they give more maintenance than the obligation, and you have no one who claims the money for maintenance from his son-in-law except through a quarrel. And behold, the entire main reason for this law is because anyone who provides sustenance without specification does not provide it as a gift but as a loan [Ran Nedarim 33b], for few are those who give gifts. According to this, among fathers and sons, there are many who provide as a gift and also give gifts, and it is not similar to what is written in the Yerushalmi, chapter 13 of Ketubot, that there is one who holds that a son-in-law who went to a country across the sea and his father-in-law provided for his wife, that the husband is obligated to pay. For certainly when they are not supported at his table and the husband abandoned his wife, there is reason to say that the father was forced to provide for his daughter, for what could he do, and he did not intend it as a gift. But when he keeps them at his table, who requested this of him if he did not intend it as a gift? And furthermore, according to the halacha we established that his son-in-law is exempt upon his return from paying, as is written in Even HaEzer siman 70. Therefore, it seems to me that this law applies only when the father-in-law revealed his mind that his intention was for payment and not for free. Therefore, our teacher, the Rema, wrote regarding this law "when he claims it from him" and not regarding the first law, meaning that during the period of maintenance he revealed his mind to him that he was not feeding him for free. And nevertheless, if this revelation of mind was through a quarrel, he is exempt, for we say that he did not intend for payment even for the future, but rather he said so out of the quarrel. But if during the period of maintenance he did not reveal his mind at all, he cannot claim from him afterwards. But in the first law, he can claim even afterwards. It further seems to me that even in the first law, if the one who provided the food died and did not claim it, the heirs cannot claim it, for since he did not claim it, he certainly intended it as a gift; and all the more so regarding one who feeds his son-in-law, that the heirs cannot claim when he did not claim it in his lifetime.