Siman 251

It has already been explained regarding an ordinary matnat shekhiv mera that there is a distinction between a gift of all his property and a gift of part of it, and regarding one who commands due to death. Likewise, if he explicitly gave as a matnat shekhiv mera, there is no distinction between all of it or part of it. Therefore, in every matnat shekhiv mera, it must be clarified in the deed that he was ill and cast in bed and gave to so-and-so such-and-such and to so-and-so such-and-such, and in this there is the distinction that has been explained. And if it clarifies that he gives due to death, or it is explicit as a matnat shekhiv mera, there is no distinction. And in a matnat bari, it must be clarified in the deed that he was healthy. And the sages, of blessed memory, said that the witnesses must mention in the deed that he died from this illness, for if not so, perhaps he recovered in the interim; and thus the witnesses were accustomed to write when they wrote after the death of the giver (Rashbam 153a). However, when they write the will while he is still alive, as is our custom, it is not relevant to mention this in the will (it appears to me). And even those written after his death, it does not invalidate post facto when they did not write so, and it is sufficient that the witnesses testify that he was ill and died from this illness.

And our sages, of blessed memory, further said [ibid.] that a gift of a shekhiv mera in which it is written, "this field or this object I give to so-and-so in life and in death" or "from life and in death," he does not nullify the gift by having written "from life." For since he mentioned death, this has the law of a gift of a shekhiv mera, which is only acquired after death, and this has the law of a command due to death since he mentioned death [Sma]. And that which he mentioned "from life" is only as a good omen to settle his mind that he will live through this illness and so as not to open his mouth to the Satan. And there is no difference in this between a gift of a portion or a gift of the whole, and one must adjudicate regarding it all the laws of a gift of a shekhiv mera. And likewise if it is written "in death and in life" [Shach]. And even if a kinyan is written in it, there is no difference in all this [Sma]. But a healthy person who gave a gift and wrote in the deed "in life and in death" or "from life and in death," behold this is a complete gift from life, and that which he wrote in it "and in death" is like one who says "from now and forever," and it is a flourish of the deed. And likewise if it is written "in death and in life," it is also like one who says "from ever and forever" [it appears to me]. And it requires a kinyan according to the law of a gift of a healthy person. But if it is written in it "from life and after death," he acquires the body from today and the fruit after death. And if it is written in it "from today if I do not retract until after death," or simply "if I do not retract," the authority is in his hand to retract all the days of his life; and even though there is a kinyan in it, it is only acquired after death, for behold he stipulated so. And it will be explained in siman 257.

If it is not clarified in the deed whether he was ill or healthy, and there is a kinyan within the deed, and now he is healthy and says that he gave it as a matnat shekhiv mera and recovered from his illness and his gift is voided, and the recipient says that he was healthy and gave it as a matnat bari and cannot retract, and the witnesses are not before us, the recipient must bring proof because the property stands in the possession of the giver and the burden of proof is on the claimant. And if he has no proof, the giver shall swear a shevuat hesset that it is as he says and takes the property for himself. And even if the kinyan was written as an added strength in the manner of kinyanim made for a shekhiv mera, nevertheless there is no proof, for even with a bari they sometimes write for added strength [Sma]. However, if it is written in the deed "and we performed a kinyan from him in addition to this gift," it is clear proof that he was a shekhiv mera, for this language is not written regarding a bari at all; only "added strength" or "they gave and also wrote" is written sometimes, but the language of "addition" appears explicitly that a kinyan is not required, and therefore the giver does not need to swear [Taz]. And seizing does not avail in this matter, except regarding movable property when he has a migo to say they are his, such as when it is not known that they belong to the giver or when witnesses did not see the movable property now in his hand; but without this, seizing does not avail [Shach]. And if the giver handed them over of his own will, seizing always avails and the recipient is believed [Netivot HaMishpat]. And in any place where there is a dispute among the poskim whether the recipient acquired it or not, the recipient must bring proof, for the property stands in the possession of the giver.

And so too, a gift of a shekhiv mera in which it is not written that he died from this illness, and the heir says that he recovered before he died and the gift was voided, and the recipient says that he died from the illness, and the witnesses are not available to be asked—even though the testator died and we should have said that since he died before us, we should establish him upon the presumption of his illness that he did not recover—nevertheless, the gift is void, for his death is not proof, as perhaps he recovered from the illness in which he gave the gift and afterwards fell ill with another illness and died. Therefore, the property remains in the presumption of the heirs until the recipient brings proof that he died from this illness. The heirs do not need to swear; even though the recipient claims with certainty and he himself would have needed to swear as has been written, nevertheless, his heirs do not swear, for heirs swear to collect and not to be exempt [Sma]. And if the recipient claims that the heir admitted to him that he died from this illness, the heir swears to contradict him, that he did not admit it to him [Taz]. And if the recipient seized movables of the gift, if it is in a manner that he could say "they are mine," he is believed to say that he died from this illness through a migo that "they are mine."

The witnesses can testify that he died from this illness based on the attendants of the sick person, even if they are women or slaves; when they say that he died from this illness that was present at the time of the command, they testify based on them. And similarly, if it appears to the witnesses themselves based on their own assessment that he died from this illness, they can testify so in beit din, for this is only like a mere disclosure of a matter and does not require the laws of testimony completely [it appears to me]: