Siman 252

It has already been explained that the gift of a shekhiv mera is acquired after the death of the giver and is exactly like an inheritance. Therefore, one extracts from this for every lien that the giver obligated himself to during his lifetime. Even for matters that one does not extract from a complete gift, such as the sustenance of his wife and daughters—which he became obligated for through the conditions of the ketubah, that his daughters shall be sustained from his property after his death until they reach maturity, and his wife until she takes her ketubah, for which one does not extract from liened property, and even from what the heirs sold one does not extract, as written in Even HaEzer siman 93, and similarly for the ketubah of male children as written there in siman 111—nevertheless, from the gift of a shekhiv mera one extracts just as one extracts from the heirs. And even from movable property one extracts for the sustenance of the wife and daughters according to the enactment of the Geonim that was explained there; for since the gift does not take effect until after death, and these obligations also take effect after death, his gift does not override the enactment of the rabbis which they enacted for the benefit of the wife and daughters. Furthermore, this enactment takes effect immediately when he despairs of life while he is in the state of goses, and the gift does not take effect until actual death; thus it is found that the enactment preceded the right to the property from his gift. Nevertheless, when the heirs have other property, one collects from them and not from the gift, for the property of the heirs in relation to the gift is like unencumbered property in relation to liened property, since the heirs literally stand in the place of their testator. Similarly, a loan by word of mouth is collected from the recipients of the gifts of a shekhiv mera when there is no other property, but when there is unencumbered property, even of the poorest quality, one does not collect from them even when they are of better quality than the poorest, as written in siman 111 [Beit Yosef]. And the gift of a healthy person "from today and after death" is not judged in this matter like the gift of a shekhiv mera, but rather like the gift of a healthy person [ibid.], and similarly "from today if I do not retract" [it appears to me].

Our teacher, the Rema, wrote: One who gave a gift of a shekhiv mera, and his wife heard and did not protest, and afterward he went back and gave [this gift] again and then his wife protested, she does not collect her ketubah from this gift, for behold the first gift stands, and we do not say that the second nullified the first, for behold he did not retract the first but only came to strengthen it; and some say that even though she was silent at the time of the gift, she collects her ketubah from his gift. Thus far his words. And the first opinion holds that since she was silent at the time of the gift, she waived the lien of her ketubah from this gift, even if she has no other place from which to collect; for if she had another place from which to collect, the "some say" would not disagree on this. And so he wrote in Even HaEzer siman 106, these two opinions. And I wonder at the first opinion, for we have not found that the sages, of blessed memory, stated this reasoning—that she waived the lien of her ketubah—except in one who divides a portion to his wife among the sons and she was silent, for she lost her ketubah as is written there, and the reason is because he considered her like one of his sons, as is found in the Gemara [Bava Batra 132b and Rashbam ibid.]. And the source of this law is from the Mordechai, chapter 9 of Bava Batra, in the name of the Ra'avan, and there he explained other reasons, for the incident was that the shekhiv mera commanded to give to his father, who is his heir, and she had not yet sworn regarding her ketubah, and by law it was necessary to give to the heir, and the Ra'avan, of blessed memory, holds that we do not remove movable property from the heirs for a ketubah, see there. But in a standard gift of a shekhiv mera where she heard and did not protest, that she should lose her power over these properties, we have not heard [also the Chelkat Mechokek there took issue with him, and the words of the Beit Shmuel are puzzling to one who examines the Mordechai there]. Therefore, the primary ruling is like the "some say." And more than this, the Rivash wrote in siman 244 regarding a widow who performed a kinyan for a shekhiv mera to uphold his will regarding his properties, nevertheless she collects her ketubah first, see there.

We hold that it is a mitzvah to fulfill the words of the deceased, and even a healthy person who commanded and died, it is a mitzvah to fulfill his words. Some of our teachers raised a difficulty: if so, why did the sages of blessed memory find it necessary to institute regarding a shekhiv mera that his words are as if they were written and delivered? Let it be derived from the fact that it is a mitzvah to fulfill the words of the deceased. Therefore, they said that the mitzvah to fulfill the words of the deceased applies only when it was deposited in the hand of a third party for that purpose. However, if it was deposited in his hand not for the purpose of this command to give to him, or if it came into his hand after the command, and certainly if it was not deposited at all, there is no obligation of the mitzvah to fulfill the words of the deceased. However, there are three further distinctions between the mitzvah to fulfill the words of the deceased and the rule that the words of a shekhiv mera are as if they were written and delivered. The first: when he was healthy and said, "Give a maneh to so-and-so that I am giving to him," and the recipient died during the lifetime of the giver, and afterwards the giver died, there is no obligation of the mitzvah to fulfill the words of the deceased, since the recipient was not alive when he died, and the mitzvah takes effect at the time of the giver's death, and then the recipient is not in the world. But when the giver was a shekhiv mera when he commanded, he acquires even in such a case because his words are as if they were written and delivered. The second: when he stated an empowerment, such as "Give and also write," for by the reason of the words of a shekhiv mera he acquires even if they did not write during his lifetime; but by the reason of the mitzvah to fulfill the words of the deceased when he was healthy, if they did not write during his lifetime he does not acquire, for perhaps he did not resolve to transfer ownership except through a document, and there is no document after death.

And the third is that by virtue of the rule of the words of a shekhiv mera, it is a complete acquisition. Therefore, regarding anything acquired through a gift of a shekhiv mera, if the heirs preceded him and sold the gift, the recipient can remove it from the hand of the buyer, whether it is land or movable property [Shach and Taz], not like the one who disagrees in this matter, and he can collect from whomever he wishes. And if the buyer did not know that it was given to him as a gift of a shekhiv mera, he must return the purchase price to the buyer because of the market enactment, and he shall collect from the heirs. But a healthy person who commanded and died, even though it is a mitzvah to fulfill his words, nevertheless, if the heirs preceded him and sold, what they did is done, like all sales involving a transgression where the sale is a valid sale. And so too the opposite: in a partial gift of a shekhiv mera without a kinyan, the recipient does not acquire. And regarding the mitzvah to fulfill the words of the deceased, it applies here if it was given into the hand of a third party for that purpose [Darkhei Moshe]. And even though there are some of the Rishonim from whose words it is implied that we say it is a mitzvah to fulfill the words of the deceased even without it being initially deposited for that purpose, nevertheless, most of our teachers hold so, and so the Tur and Shulchan Arukh ruled without qualification. And logic dictates so, for the mitzvah only pertains to the third party who must fulfill the words of the dead man; but without this, upon whom is this mitzvah incumbent? And it is possible that the mitzvah is incumbent upon his sons to fulfill the words of their father, and so it is implied from what will be explained.

One who swore or vowed to give to a certain person such and such and died and did not give, his heirs are exempt, for there is no vow after death; for he did not vow during his lifetime that this object belongs to that person, for had he vowed with this wording the vow would have taken effect. But when he vowed to give and still did not give, the vow does not take effect upon his sons, and there is also no obligation in this regarding the mitzvah to fulfill the words of the deceased, since he did not place the gift in escrow nor did he command them to give. And in siman 212 this was explained. And one who deposited money or objects with his fellow and said to him that if he dies he should do with them what is best, he should give them to his heirs, for there is nothing better than this, as anyone who transfers an inheritance from his sons, the spirit of the sages is not pleased with him. See in siman 282.