Siman 253

Two people who entered to visit the sick person and he commanded in their presence, they write down everything he commands, but they do not execute the law to fulfill the will and to grant possession to each person after his death in everything he commanded; or when there is some doubt regarding the will, they shall not judge by themselves, for they are nothing but witnesses. Therefore, they shall hand over all the words of the will to a beit din, and the beit din will judge this and fulfill and grant possession to each one. But if there were three who are fit to judge, if they wish, they write the will and hand it over to another beit din, and if they wish, they execute the law themselves. And even though the shechiv mera did not designate them as judges but they entered on their own to visit him, nevertheless, since they are a beit din and he delivered his will in their presence, they are permitted to execute the law themselves to grant possession to each one when he dies in what he commanded and to judge in any matter of doubt. And none of the heirs or the recipients of the gifts can say, "Let us go to another beit din." And all the more so if he sent to call for a judge to make him a judge over the will, for then even if he is a single individual, he is permitted to judge [it appears to me]. And our sages, of blessed memory, learned this from a verse in the portion of inheritances, as it is written: "And it shall be to the children of Israel a statute of judgment," to say that those standing there at the time he bequeaths to his children—even when he increased for one and decreased for another—they shall judge the judgment of the division according to his will if they are fit for a beit din. And the gift of a shechiv mera was also equated by the rabbis to an inheritance, as I wrote at the beginning of siman 252. And this, that three may execute the law if they wish, is specifically when the will was during the day, which is a time fit to execute judgment. And even though judges must hear from the mouths of witnesses, this is in a matter that they themselves do not know; but in a matter that they see themselves, their hearing from witnesses shall not be greater than their own seeing. Therefore, if the will was at a time not fit to judge, such as at night or on Shabbatot and Yom Tov, they write the will at night, and on Shabbat and Yom Tov they hear the will, but they do not execute the law themselves afterward. For at the time of the will, since the time was not fit for judgment, they were then nothing but witnesses, and a witness does not become a judge afterward, as I wrote in siman 7. Therefore, they shall hand over the will to other judges. And we have already explained in siman 5 that according to the Rambam, of blessed memory, this matter only applies where he increased for one and decreased for another; see there in section 10.

There are some of our teachers who say that this law, that when they are three they perform a judgment, applies when the testament of the shekhiv mera was in a manner where he cannot retract, such as with "from now" with a kinyan, or in a gift of a portion with a kinyan, where it is relevant to perform a judgment. But in a gift of everything or a command due to death, what relevance is there for judgment at the time of the act, for behold, he can retract [Rashbam 114a and Nimukei Yosef]. And so it implies there in the Gemara, which deliberates regarding the time of the kinyan, that he can retract as long as they are occupied with that matter. And the Tur rejected this opinion and wrote that a gift of a portion has the law of a gift of a healthy person in every respect, and they only perform a judgment with a shekhiv mera who divides his property, and they cannot perform a judgment until he waits until after he has finished that matter, in a manner where he cannot retract; but before he has finished that matter, they are not to judge. Thus far his words. And our teacher, the Beit Yosef, rejected his words, for behold, in a gift of a shekhiv mera of everything, he can always retract. And there is one who wished to say that the intention of the Tur is also when he cannot retract, such as when he says "from now" [Bach]. But it is impossible to say so, for if so, what is the difference between a gift of a portion and a gift of everything [Acharonim]. And from the Rosh it is explained that even in a place where he can retract, they perform a judgment, and so it implies from the Rambam. And it appears to me in the explanation of the words of the Tur that certainly a gift of a shekhiv mera is no better than a gift of a healthy person with a kinyan; and just as with a gift of a healthy person the gift does not take effect until they have departed from the matter, as was written in siman 195, so too with a shekhiv mera the status of a gift does not take effect upon it until they depart from the matter. Before this time, there is not yet the status of a gift at all such that it would be relevant to perform a judgment. But after this time, the status of a gift takes effect upon it and they can perform a judgment. And even though he can retract, this is a different matter, like a gift on condition to return, where until the return the gift has taken effect; so too until the shekhiv mera retracts, the gift has taken effect, and afterwards with his retraction it is nullified from then and for the future. But until this time, the status of a gift is upon it and they can perform a judgment. And also the progression of the Gemara is interpreted well according to this. And if they judged within this time, the Tur wrote that there is a dispute among the poskim whether their judgment is a judgment or not. And from the Rambam it appears that his opinion is that it is always a judgment [see in the Rambam, chapter 3 of Sanhedrin].

There is one who says that a gift of a shekhiv mera is not established by the testimony of one witness, even if he is a great sage, for one witness is not believed to extract property from the heir. Therefore, if there are not two witnesses to the will, the one witness should exert effort so that the shekhiv mera himself signs the will. And so too, according to this, those disqualified from testimony cannot execute a will. However, if the heirs know that the individual is speaking the truth, that the shekhiv mera so commanded, they are obligated to fulfill his will. And this matter is revealed before the Knower of Secrets; when they know that he speaks the truth and they do not fulfill it, He will exact payment from them [it appears to me]. And so too, if the shekhiv mera delivered money, objects, and documents into his hand, he is obligated to fulfill all that he commanded him, since he made him a trustee [it appears to me].

A shekhiv mera who commanded and said, "Let so-and-so take all my property" or "some of my property," or "let him possess," or "let him merit," or "let him acquire"—all of these are terms of gift. The same applies if he said, "Let this thing be for so-and-so," it is a gift [Shach]. Similarly, if he said, "Let him succeed" or "let him inherit" regarding one who is fit to inherit him, such as a son among sons or a daughter among daughters, he has acquired it by way of inheritance. But if he said, "Let so-and-so benefit from my property," or "let him stand in them," or "let him see in them," or "let him lean on them," he has not acquired it, for these are not terms of a clear gift. In the Gemara, these terms remained in doubt. And even if they performed a kinyan from him, some say it is not effective because it is a kinyan devarim, and some say it is effective [Sma]. Regarding these terms of gift that are effective for a shekhiv mera, some say that the law is the same for a gift of a healthy person when he receives a kinyan on these terms; and some say they are not effective, for only regarding a shekhiv mera, whose mind is not settled to speak in clear language, did they be lenient with these terms, but a healthy person must speak in a clear language of gift. For a shekhiv mera, it is also effective if he used the term, "I leave to so-and-so such and such," for regarding a shekhiv mera this term is a term of gift, and its meaning is that he leaves him such and such from his estate. If he said, "Let such and such fall to so-and-so," it is a term of inheritance, and if the recipient is fit to inherit him, this term is effective, for we find the term "falling" regarding inheritance, as it is written: "this is the land which shall fall as an inheritance." But if he said simply, "Such and such to so-and-so from my property," it is nothing, for this is neither a term of gift nor a term of inheritance. And some say this is a term of gift, and its meaning is to give so-and-so such and such [Taz].

Our teacher, the Rema, wrote in section 2: One who says to pay his wife her ketubah in cash, this is not a language of a gift and the heirs are not required to fulfill it because of the mitzvah to fulfill the words of the deceased, for this is as I have written in siman 252. Thus far his words. For this is not a language of a gift that she should take by virtue of the gift of a shekhiv mera, and the mitzvah to fulfill the words of the deceased is not applicable here since he did not initially place them in the hands of a third party for this purpose. And even according to what I wrote there, that regarding sons it is possible that there is a mitzvah even without placing them in the hands of a third party for this purpose, that is when he commands them themselves; but when he spoke not in their presence, his command does not take effect upon them at all [there in the Beit Yosef in the name of the Ritva]. And if he placed the money in the hands of a third party for this, they are obligated to fulfill his words [Taz].

That which they write in deeds of gift, "you shall go and merit and inherit and mortgage and do with it your desire and will," these expressions are nothing but the beauty of the deed, and even if they were not written, it is the language of a gift, whether by a healthy person or by a shekhiv mera. It is sufficient if only the language of a gift is written. And if there is written in a deed of a will language that can be attributed to a scribal error, if it appears according to the matter that it is an error, we attribute it so, as was written in siman 49. And the language "I shall give" regarding a shekhiv mera is a proven error, for since his gift is after death, how shall he give then? [Chatam Sofer]. And there is a great principle regarding gifts of a shekhiv mera: that if he gave a gift to one who is fit to inherit him, such as a son among sons, or a daughter among daughters, or a brother among brothers, and he gave him an advantage over his portion of inheritance, he merits whether he gave it to him in the language of a gift or whether he gave it to him in the language of inheritance. But when he gave a gift to one who is not his heir, he merits only in the language of a gift and not in the language of inheritance. Therefore, one must be careful in a place where there are sons and he wishes to give also to his daughters, he should not write for them the language of inheritance, for in a place where there are sons, the daughters do not inherit, and likewise brothers in a place of daughters.

A shekhiv mera who was asked, "To whom shall your property go?" and he said, "I had imagined that I had offspring or that my wife was pregnant, and now that it is not so, I give my property to so-and-so," and afterwards it became known that he has a son or a daughter, or that his wife was pregnant and he did not know of this at the time of the command—his gift is void. For in such a case we follow the assessment of intent even when he did not explicitly state his words, as was written in siman 246, and all the more so when he did explicitly state them. Moreover, even if the son died afterwards or his wife miscarried, since at the time of the command the son or daughter was alive or she was pregnant, and his giving then was in error, it does not take effect even afterwards, and his relatives who are fit to inherit him shall take it.

A shekhiv mera who said, "My property is for so-and-so," or even if he did not say it himself but others asked him, "To whom is your property? Perhaps to so-and-so?" and he replied to them, "To whom else?"—if he is fit to inherit him, he takes them by way of inheritance, and if not, he acquires them by way of gift, for this language sustains both the language of inheritance and the language of gift. And it seems to me that if they asked him, "Who shall inherit your property? Perhaps so-and-so?" and he replied to them, "Who else?" and this so-and-so is not fit to inherit him; and if they asked him, "To whom are you giving your property? Perhaps to so-and-so?" and he replied to them, "To whom else?" even if he is fit to inherit him, he takes them by way of gift. And the language that sustains inheritance and gift, if he is not fit by way of inheritance, he takes them by way of gift. And see what I wrote in siman 248.

That which we have said, that when he was an heir he takes them by way of inheritance, this is regarding other heirs; but regarding a son, he only made him an apotropos, as is written in siman 246, and according to some who say there, this is also the case regarding a daughter. And this law applies only when he has no son or daughter, and other heirs inherit him. And according to what is written there, that with the language of inheritance he is not an apotropos and acquires completely, here too, if he used language that can also be interpreted as the language of inheritance, even a son among sons takes them by way of inheritance [Shach]. And some say that with language that bears both interpretations, we assume regarding a son among sons that he only made him an apotropos, for it stands to reason that as long as we can say that he did not transfer the inheritance, we assume so [Taz]. And according to this, even regarding a daughter among daughters we assume so according to this opinion, for those who say so there, and likewise a daughter among sons [it appears to me]. And if he used language of appointment over his property, it is obvious that this is only the language of apotroposut.

A shekhiv mera who said, "Give two hundred zuz to so-and-so my firstborn son as is fitting for him," or "to my wife as is fitting for her," or "to so-and-so my creditor as is fitting for him," they take the two hundred zuz in addition to the portion of the birthright, the ketubah, and the debt. For if his intention was only to pay them according to what is due to them, why did he add the words "as is fitting for him"? We have a general rule that any superfluous language comes to include more, as written in siman 214. And if he said explicitly, "Give two hundred zuz to my son for his birthright," or "to my wife for her ketubah," they shall not take two things—the gift and the birthright or the ketubah—even if he said "as is fitting for him" [Netivot HaMishpat]. Rather, they take only one of the things, and their hand is on the upper side: if the two hundred zuz is more than the birthright or the ketubah, they take the two hundred zuz, and if the birthright or the ketubah is more, they take their portion. This law applies only to the portion of the birthright, for it is a decree of the Torah that a father cannot diminish the portion of the birthright, as written in siman 281; but regarding an ordinary son, it is in the father's power to increase one's portion and diminish another's portion, as written there, and he has only what his father commanded. Similarly, regarding a creditor, if he said, "Give two hundred zuz to so-and-so my creditor for his debt," if the debt is more, he takes the debt; but if the two hundred is more than the debt, it is forbidden for him to take more than his debt, for it would be ribbit. But if he said "as is fitting for him," it does not appear like ribbit, for it is a gift on its own and is not related to the debt at all. However, when he included them in the debt and the debt does not amount to that much, it appears like ribbit [it appears to me], and even if he seized it, it is removed from his hand [Shach]. And if he said, "Two hundred zuz to my son so-and-so in his inheritance," and he is not a firstborn, he has only this sum, as has been explained. And if he did not say "as is fitting for him," nor "for his birthright," nor "for her ketubah," nor "for his debt," but rather said, "Give 200 zuz to so-and-so my firstborn son," "Give 200 zuz to my wife," "Give 200 zuz to so-and-so my creditor"—in all of them, their hand is on the upper side. The creditor, if the gift is greater than the debt, is able to take them, and it does not appear like ribbit, for since he did not mention the debt, it is a mere gift and the debt is not collected at all. And some say that if he spoke without specification, "to my son so-and-so," or "to my wife," or "to so-and-so" and he is a creditor, since he did not mention the inheritance, the ketubah, or the debt at all, we say that he gave them a gift in addition to what is due to them, and even regarding an ordinary son the law is so, and the superfluous language of "as is fitting for him" was only needed in a place where he mentioned the birthright, the ketubah, or the debt. However, regarding a creditor, if he only mentioned "so-and-so the creditor," even though he did not mention "for his debt," it is as if he mentioned the debt and he takes only the debt; for if not so, why did he have to mention "creditor"? For it is understandable regarding his son and his wife that he mentioned them due to his affection for them, but regarding a creditor, he should have said only "to so-and-so" [Sma]. And some say that even if he mentioned "creditor," since he did not say "for his debt," it is a gift aside from the debt, and his saying "creditor" is only as an identification of who the person is. And regarding the firstborn son, when he only mentioned "to my firstborn son," it is as if he said "for his birthright," for if not so, why did he have to mention "firstborn"? He should have said only "to my son so-and-so." Rather, certainly he meant "for his birthright," and therefore the law is as before, that his hand is on the upper side. Our teacher, the Rema, wrote that the first opinion seems primary, and not like those who disagree. All these things were said only when he did not mention the language of a "gift," and therefore we are in doubt regarding his intention; but if he said explicitly, "I am giving as a gift 200 zuz to so-and-so my creditor" or "to my wife," they take this in addition to what is due to them. And one who said his daughter shall take such-and-such from his property, and did not mention it was for the purpose of her marriage, she takes the gift in addition to the tenth of the property due to her at the time of marriage, as written in Even HaEzer siman 113, and see there in siman 109.

A shekhiv mera who said, "Give two hundred zuz to so-and-so, and three hundred to so-and-so, and four hundred to so-and-so"—if he paused in between, meaning that when he gave to the first it was not in his mind to give to the second but rather he reconsidered afterward, and likewise between the second and the third he also reconsidered, and he gave to the first ones as a command due to death or explicitly as a matnat shekhiv mera, or even if he gave to them together but said, "Give 200 to so-and-so, and after him 300 to so-and-so, and after him 400 to so-and-so," and the entire sum was not found with him—whoever is first in the document acquires, and the second shall acquire the remainder, and the third shall acquire what remains from him. And if a debt document was produced against the giver before they received the money according to the law of the Gemara, and now even after they received the money as will be explained in section 14, or if he gave them land worth such-and-such even after they collected, the creditor collects from them just as he collects from the heirs, for the rabbis established a matnat shekhiv mera like an heir [Rashbam 138]. And he collects first from the last one, for he is considered like unencumbered property relative to the earlier ones; and if it did not suffice for the creditor according to his debt, he collects from the one before him, and if this too does not suffice, he collects from the one before him. But if he said, "Give two hundred to so-and-so, and 300 to so-and-so, and 400 to so-and-so," and did not reconsider in between, the hand of all of them is equal, and we do not say whoever is first in the document acquires. And if this entire sum is not found, they divide what is found into nine parts: the owner of the two hundred takes two parts, the owner of the three hundred takes three parts, and the owner of the four hundred takes four parts. And if a debt document was produced against him, he collects from all of them, from each one according to this proportion; that is, if the debt is 90 gold pieces, the owner of the two hundred pays twenty, the owner of the three hundred thirty, and the owner of the four hundred forty. And if the debt was 450, the owner of the two hundred gives one hundred, the owner of the 300 gives 150, and the owner of the 400 gives two hundred. And if he gave to all of them equally, such as giving to each one 200 zuz, even if he said them together without reconsidering in between—"two hundred to so-and-so, and two hundred to so-and-so, and two hundred to so-and-so"—whoever is first in the document acquires, and the creditor collects from the last one even though he did not say "after him to so-and-so," for certainly such was his intention, for if not so, he should have said "Give 600 zuz to these three." But there are those who disagree on this, for since he did not say "after him to so-and-so," presumably his intention was that they all be equal, and the reason he did not include them together is because it is the way of people to speak thus, to give to this one so much and to this one also so much; and in siman 111 this was also explained, see there.

And all this is regarding a shekhiv mera who transfers ownership through speech without a kinyan, and therefore without "consultation" and without the word "afterward," it is not evident that he transferred ownership to one before the other. However, regarding a healthy person who gave gifts and said to Reuven, "I am giving you 200 gold pieces," and transferred it to him with a kinyan effective for money, and afterward said to Shimon and transferred it to him, and afterward to Levi, the matter is known as to whom he transferred ownership first, and whoever preceded with his kinyan precedes the others, just as with a shekhiv mera using the language of "afterward" [ibid.]. And it is obvious that when he delivered the gifts into their hands, whoever received them first precedes. But if he granted them merit through another person, their law is like that of a shekhiv mera; for example, if he gave 900 to one person and said to him, "Acquire on behalf of Reuven 200, and on behalf of Shimon 300, and on behalf of Levi 400," the precedence is not evident and they are all equal. And similarly, if he transferred ownership via kinyan to all of them together, there is no law of precedence among them. But if he granted them merit through another person, first to Reuven and afterward he granted merit to Shimon and afterward to Levi, whoever is first acquires [Sma].

Even though the sages treated the gift of a shekhiv mera like an heir, it is nevertheless considered like encumbered property relative to the heirs regarding the collection of debts. Therefore, a shekhiv mera who gave a gift and left the remainder to his heirs, if a promissory note is produced against him, it is collected entirely from the heirs, for they are considered like unencumbered property relative to his gift. And if the inheritance was not sufficient, then he collects the remainder from the recipient of the gift. This applies specifically when he specified the portion of the gift and did not specify the portion of the heir, how much he is giving him. But if he also specified the portion of the heir, he also has the status of a recipient of a gift of a shekhiv mera, for is it because he is an heir that his power should be diminished? Behold, he gave to him in the manner of a gift, for if not so, why did he specify how much the heir should take? Therefore, if he prioritized him over the other, such as if he said, "Give two hundred zuz to so-and-so my son, and after him two hundred to so-and-so," his son comes first, for he prioritized him, and his law is like another whom he prioritized.

Since the sages established that a gift of a shekhiv mera is like an heir, therefore any creditor who collects from heirs collects from the recipients of gifts of a shekhiv mera. And according to the enactment of the Geonim that they collect from the movable property of orphans and from the money he left, as written in siman 107, and even a loan by word of mouth if only it is known that he did not pay during his lifetime, as written in siman 108, likewise they collect from the recipients of gifts of a shekhiv mera. Our teacher, the Beit Yosef, wrote similarly in siman 69 in the name of the Rif, the Rambam, the Rashba, and the Ritva, that they collect from a gift of a shekhiv mera with a document in his handwriting, and the law of a document in his handwriting is like a loan by word of mouth, and only against the heirs themselves is their law like encumbered property. And although there is one who disagrees with this, the halakha follows the many. However, a partial gift of a shekhiv mera with a kinyan has the law of a gift of a healthy person. And know that even though he is like an heir, nevertheless they collect from an earlier recipient of a gift medium-quality land when there is low-quality land with a later recipient, for in any place where there is no loss to the creditor, they established it like encumbered property regarding this [so wrote the poskim].

A shekhiv mera who said, "Give a maneh to so-and-so," they give it, whether he said "the maneh that is placed there in such-and-such a place" or whether he said a maneh without specification; they give from his money found with him in any place it may be. And we do not fear that perhaps his intention was for some maneh hidden with him in some place. And the practical difference between "this maneh" and a maneh without specification is that if he said "the maneh that is placed there" and that money was lost, he has lost his gift. But if he said a maneh without specification and afterwards some sum of money was lost, they suffer the loss according to the proportion; for example, if he left five hundred and gave him a maneh, and a maneh was lost, he shall suffer the damage of a fifth part and the heirs four parts. And this is specifically when all five hundred gold pieces were placed in one place, but if each and every maneh was placed in a specific place and one of them was lost, his hand is at a disadvantage, and the heirs can say, "Yours was lost," for the property stands in the presumptive possession of the heirs, and the one who extracts from them bears the burden of proof [Ran, end of the first chapter of Gittin]. And if no liquid money at all is found with him, he takes nothing at all, since he did not say "a maneh from my property" but rather a maneh without specification [ibid.]. And even though he has a maneh in a loan or in a document against others, he does not take [Shach], for since he said "a maneh," it implies liquid money. But if he had a deposit in the hand of others, he takes from them, for a deposit is like it is in the domain of the depositor. And all the more so if he said to give him "money" or "gold pieces," for he meant it specifically, and if liquid money is not found, he has lost, since he did not say "from my property" or another expression whose meaning is like "my property," and it will be explained in section 20. But in this that we said, that if they were placed maneh by maneh separately and one of them was lost the loss is upon him, this is even when he said "a maneh from my property," for certainly even when he said this expression, since he had liquid money, his intention was certainly for the liquid money, and since one of them was lost, the heirs can say, "Yours was lost." However, regarding the essence of this law, the Rosh, of blessed memory, disagrees and holds that as long as his portion has not been clarified, the loss is according to the proportion, and it will be explained in section 17; but in the Shulchan Arukh, this opinion was omitted.

And know that a shekhiv mera who said, "This maneh is for so-and-so," or commanded to give a maneh from his assets, it is only effective in a command due to death or in one who divides all his assets among many people and commanded to give from among them a maneh to this person, for the law is that it does not require a kinyan and he acquires it through speech. However, where he did not transfer except for one maneh in a general sense, which is a gift of a shekhiv mera in part that requires a kinyan, and he did not transfer objects to him worth a maneh but rather the maneh itself, even with a kinyan sudar he has not acquired it, for currency is not acquired through chalifin. And he must transfer it to him through agav karka or deliver the money into the hand of a third party during his lifetime so that he may acquire it on his behalf. And even when he does not acquire it on his behalf, there is in this the matter of the mitzvah to fulfill the words of the deceased.

A shechiv mera who said, "Give a maneh's worth to so-and-so from my wine," and some of the wine soured, the loss is proportional. And even if the wine stood in several places and it soured in one place, the heirs cannot say, "Yours soured." And it is not similar to the maneh in section 15, for certainly if he had mentioned the name of a barrel, they could have said that your barrel soured; but since he mentioned "wine" in general, behold all the wine is mixed for this gift, and therefore the loss is proportional [Ran, chapter 6 of Gittin]. And there are those who say that even if he said, "One barrel from my barrels," or "Give him such-and-such barrels," and some of them soured, he loses only proportionally; since his portion was never clarified, he is a partner in all the wine [there in the Rosh, siman 16]. And according to this, there is a distinction between these two opinions in a case where he gave him a specific thing, such as one barrel from the barrels, and one of them was lost: for according to the first opinion, the loss is upon the recipient, and so ruled our teacher, the Rema, in section 13; and according to the "there are those who say," the loss is proportional since his portion was never clarified [Bach]. And according to this opinion, also that which was explained in section 15 regarding the maneh—that if one maneh was lost, it was lost to the recipient—is not so according to this opinion, but rather the loss is proportional. And there is one who wished to say that the intention of this opinion is also only when he said "wine the measure of one barrel" or "like two barrels," but if he said an actual "barrel," he agrees with the first opinion [Draisha and Ketzot HaChoshen there]. And according to this, he does not disagree regarding the maneh in section 15. But it does not appear so from the wording of the author of this opinion, see there [and see Shach].

And so too, if the shekhiv mera said, "Give him a maneh from the proceeds of my wine," and it was sold and some of the money was lost, the loss is proportional. However, if the wine turned sour, he has lost nothing at all, for he commanded to give to him from the proceeds of the wine, which means after the wine is sold; and this is not similar to "the value of a maneh" in the previous section [Sma]. But if the shekhiv mera said, "Give him a maneh of my wine," whether some of the wine turned sour or it was sold and some of the money was lost, all responsibility is upon the heirs, and the recipient takes his gift in full. For since he said "a maneh of my wine," and one does not make money from wine, his intention was to strengthen his hand so that all the wine would be under responsibility until they pay him the maneh. And in all the expressions, however he said it, the recipient of the gift is not subject to a rise or fall in price at all; for if the wine increased in value, the profit belongs to the heirs, and so too if it decreased in value, the loss is upon them, as he is not a partner with them regarding a rise or fall in price, for he only needs to receive his maneh.

Our teacher, the Rema, wrote in section 13: One who commanded to give to another a maneh from his properties and commanded the apitropsin to select the best for him, and they selected a high-quality maneh for him and it was lost, they must give him another maneh, since the giver did not specify but only said to give from his properties. Thus far his words. Because they did not deliver it into the hand of the recipient, for such was his intention: to select the best and give it to him, and they did not fulfill his command, and all the properties remain under the responsibility of the recipient. But if according to the language he used it appears his intention was not to deliver it to him immediately but only to select his portion, and they selected it and it was lost, according to all opinions the loss is upon the recipient [Sma and Taz]. And it appears to me the opinion of our teacher, the Rema, is that since he commanded to give and to select, his intention was to select and give, even though he mentioned the giving first [and the difficulty of the Taz is resolved]. And there is one who says that in any case the loss is proportional, but it does not appear so to me; since he commanded to select the best for him, it is an advantage of power such that as long as it has not reached his hand, all his properties are encumbered to this. And so it appears in the Responsa of the Rashba brought by the Beit Yosef, see there.

It is a simple matter that one who says, "Give a maneh to so-and-so" without qualification, or "from my property," even if some of the property was lost, they give from the cash that is found. And if cash is not found, if he said "from my property," they sell a portion of the property and give him the maneh. And in this case, if a portion of the property was lost after his death, the loss is proportional. However, if it was lost during his lifetime, they do not deduct from him, for it implies whatever remains of his property [Netivot HaMishpat]. And so too if he has cash, but it is recognizable from the language of his will that if all his property that he reckoned remains in its entirety they should give to him—for example, if he said, "I have such and such property or money in the hand of so-and-so, and such and such in the hand of so-and-so," and he was counting and proceeding through all that was found of his, and immediately without pause he said, "Give to so-and-so a maneh"—the matter is recognizable that his intention was not to give him the maneh immediately, but rather according to the proportion of what they collect, for he revealed his mind that from what he has he wants to give to him according to the proportion. And if a portion of them was lost, the loss is proportional [ibid.]. The general principle of the matter is that the listeners must be precise with the language that the shekhiv mera said and report it to the beit din, and they shall judge regarding this. And any doubt that arises in the will, the hand of the heirs is on the upper hand, for the property is in their presumptive possession. And if the doubt in the will is also a matter that concerns one of the heirs, we establish every doubt upon the Torah-mandated inheritance.

A shechiv mera who gave a gift on a condition, for example, if he said, "Give a maneh to so-and-so if he marries my daughter," even though he did not double the condition and he preceded the act before the condition, nevertheless his condition is valid. Since his words are considered as if written and delivered, they do not require any of the laws of conditions, even according to the one who holds that in monetary matters one also requires all the laws of conditions. Therefore, if he married his daughter, they give him the maneh, and if not, they do not give it to him [Shach]. And even in a partial gift with a kinyan, where his law is like a healthy person, he does not require in this case the condition to precede the act. For this is not required unless the act takes effect immediately, such as one who sells on a condition, where the sale is immediate, and similarly regarding gittin and kiddushin, where the get and the kiddushin take effect immediately; therefore, if the condition does not precede the act, the condition is void and the act stands. But regarding a shechiv mera, where the fulfillment of the act is not immediate but rather after a time, this is not required. For how can we say to fulfill the act without the condition? Behold, it is not yet performed, and after a time it should not be performed without the condition [ibid. in the name of the Ramban].

And all this is when he linked one to the other with a condition, but if he stated two things, even though it could be said that such was his intention, nevertheless, since he did not state this first, we learn from this that he did not link them to one to the other. How so? A shekhiv mera who said, "Give a maneh to so-and-so and he shall marry my daughter," this is as if he gave him two gifts, and whichever he desires he may take. Therefore, if he wished to take the money and not marry the daughter, he has the right to do so, for if his intention was to link the money to the marriage of his daughter, he should have stated the marriage of his daughter before the money. Therefore, if he indeed said thus, "Let him marry my daughter and they shall give him a maneh," this is like a condition, and he does not merit the money if he does not marry the daughter. And it appears to me that if the listeners testify that previously the shekhiv mera spoke that his will was that so-and-so should marry his daughter and he would give him such-and-such, even though at the time of the command he stated the money first, nevertheless, the prior disclosure of intent is effective so that it should be like a condition and he was not precise in his wording; and in similar cases one must judge in all matters. And so too, one who says, "Give a maneh to so-and-so or to my daughter and they shall do with them such-and-such," and the recipient died, it is given to his heirs; and even though now they will not do with the money what the shekhiv mera said, since he died, nevertheless the gift stands, for he did not link them with a condition "on the terms that they do such-and-such," but only disclosed his will that they should do such-and-such, but the gift is not voided by this. And many disagree on this and hold that if it is evident that his intention was only in order that they do this thing, if it is not done, he does not acquire. And it is obvious that it is not given to the heirs of the recipient unless they also have the ability to do this thing that he commanded [it appears to me].

In the Gemara [Bava Batra 71a] a case was brought regarding a shekhiv mera who said, "Give to so-and-so a house that holds one hundred barrels," and such a house was not found belonging to him, and the smallest of his houses held one hundred and twenty; and the sages said that he acquired that house, for a giver gives with a generous eye, and we do not say that he gave him only five parts of the house and the sixth part shall remain for the heirs, for it is not the way to give a house in parts when he did not explicitly state so. And the same law applies if it held more, we give it to him as well, since a smaller one was not found. However, if there was found in his possession a house smaller than one hundred barrels and a house larger than one hundred, he takes the smaller one, for since exactly one hundred was not found, only less or more, the property remains in the possession of the heirs and the one who extracts from them bears the burden of proof [Taz]. But regarding movable property in such a case, such as where he said, "Give to so-and-so a purse of money that has a maneh in it," and two hundred were found, he takes only a maneh. And similarly when he said, "Give to so-and-so a barrel of wine that holds twenty measures," and it was found to hold more, he takes only twenty, and so it is in all similar cases of separate movable property [ibid.]. But regarding a piece of merchandise that is joined together, its law is like a house [it appears to me]. And if there was found less than what he said, if it is within an amount that the mind might err, he takes the lesser amount; and if it is an amount that the mind would not err, he takes nothing at all, for he thought that he had it and in truth he did not have it, and it is a gift made in error [it appears to me].

A shekhiv mera who said, "Give four hundred zuz to my daughter for her ketubah" or "toward her ketubah," and this refers to the nekhasei tzon barzel that the woman brings in to her husband, and it is the custom of the local people to appraise for her honor what she brings in as double its value, as is written in Even HaEzer siman 66, and there is a doubt regarding his intention—whether he commanded to give four hundred which are eight hundred in the appraisal, or he commanded to give two hundred which are four hundred in the appraisal—her hand is at the bottom and she only takes two hundred. Since he did not say to give four hundred but rather said "for her ketubah" or "toward her ketubah," and it can be interpreted that within the ketubah there shall be four hundred [as is evident in Bava Metzia 104b that it is due to doubt, and in the Tur it implies that this is the essence of the law, and it depends on the two resolutions of the Tosafot in Ketubot at the end of the fourth chapter, see there and examine carefully].

A shekhiv mera who commanded to give a woman 400 zuz for a dowry, and did not specify whether to give it immediately or at the time of her marriage: If he said, "Give 400 zuz worth to so-and-so for her dowry," where the meaning is to give her objects for the value of 400 zuz, she does not take them until she marries and requires them before her marriage. And if she died in the meantime, her heirs do not inherit this. And if the dowry increased or decreased in value until this time, there is no practical difference to her in this, since when they give it to her then, they must give what at that time will amount to 400 zuz. But if he said, "Give 400 zuz to so-and-so for her dowry," where the meaning is to give her 400 zuz in coins and she herself will prepare her dowry needs, they are obligated to give it to her immediately. And that which he said it is for the purpose of a dowry, he is merely indicating to her what she should do with the money; and even if she violates this, she has violated the will of the commander, but the gift is established and what she did, she did. And if she died, they give it to her heirs. And there are those who disagree and hold that they do not give it to the heirs, for since he said "for her dowry," he was particular not to give it to her except for the needs of the marriage and not for anything else. And our teacher, the Rema, ruled accordingly. However, they must give it to her immediately, as is written in Yoreh Deah siman 253. And if she died afterwards, even though she already received it, nevertheless the money returns to the heirs of the commander. And the same law applies to Reuven who gave a gift to Shimon so that he should marry off his daughter with it, and he did not marry her off; the money returns to Reuven according to this opinion [Shach in the name of the Rashal]. And in all this there is no difference between the gift of a shekhiv mera and the gift of a healthy person with a kinyan. And thus the great Acharonim ruled, not like the one who disagrees in this [see Sma subsection 35].

A shechiv mera who said, "Give my son a shekel every Shabbat," or even if he said by way of warning, "Do not give him more than a shekel," nevertheless, if it is not sufficient for him and there is no other heir besides him, they give him all his needs, for the property is his. The principle of "it is a mitzvah to fulfill the words of the deceased" does not apply to this, and this is the case even if he deposited them in the hand of a third party, because we estimate his intent that he did not command this precisely, but rather to urge him to be frugal in expenditure; however, he did not intend that he should live a life of suffering. But when there are other heirs, or if he said that when his son dies others shall inherit in his place, such that the money is never truly his, they give him only according to what he commanded, even if he did not speak in the language of a warning. For behold, he only left him a shekel for Shabbat for all the days of his life and no more, and if it does not suffice for him, let him take from tzedakah or live a life of suffering; and how can he take what is not his? For it is in the hand of the commander to do with his money as he wishes. Therefore, even when the son has children, they do not inherit from him, but rather the others inherit according to the will, even if those others are not heirs at all [Taz and Shach]. And although the language of "inheritance" is not effective for one who is not fit to inherit, nevertheless, the language of "give" that he said regarding his son is effective for them as well [ibid.]. And in siman 248 all the laws of "after you to so-and-so" were explained.

A great principle must be known: that even though the gift of a shekhiv mera acquires through mere words, nevertheless, in a case where a healthy person would not acquire through a kinyan—such as a thing that has not yet come into the world, or to one who has not yet come into the world, or a thing that has no substance—in all these, even with a shekhiv mera, he does not acquire. For the sages treated the words of a shekhiv mera like a kinyan of a healthy person, but it is not superior to it. Therefore, a shekhiv mera who said, "Ploni shall dwell in this house," or "Ploni shall eat the fruit of this palm tree," has said nothing, for he did not transfer to them a thing that has substance; for dwelling and eating are like speech and sleep, which are not acquired through a kinyan. But if he said, "Give the house to Ploni so that he may dwell in it until such-and-such a time," or "Give this palm tree to Ploni so that he may eat its fruit," his words stand, for he has transferred the body of the object to them for its fruit, and the body is a thing that has substance. And so too with anything similar to this. And so too, he cannot transfer to him the fruit of a palm tree until they have come into the world, but he may transfer to him the palm tree for its fruit. And so too, he cannot give to a child who will be born, even to a fetus, if the fetus is not his own. But a thing that is not in his possession, it appears to me that he can give as a gift of a shekhiv mera, even though a healthy person cannot transfer it. And the reason is that our sages, of blessed memory, said [Bava Batra 148a] that whatever is included in inheritance is included in the gift of a shekhiv mera; and it is obvious that the heir inherits even a thing that is not in his possession, and therefore it is acquired through the gift of a shekhiv mera. But regarding a thing that has not yet come into the world, it is not relevant to say that the heir inherits it, for he inherits the body of the object itself. And a thing that has no substance is not included in inheritance. And according to this, if an object was stolen from him and he has not yet despaired of it, he can give it as a gift of a shekhiv mera even though it is not in his possession.

Nevertheless, a shechiv mera who said, "Give my loan that is due to me from so-and-so," referring to an oral loan, "to so-and-so," his words are binding. Even though for a healthy person it would not be acquired through a kinyan—since it was given to be spent and a kinyan only takes effect on a physical object [Rashbam]—nevertheless, since it is subject to inheritance, and also for a healthy person it is subject to transfer via ma'amad sheloshtan, therefore for a shechiv mera his words are binding. And all the more so if he said, "Give my deposit that is in the hand of so-and-so to so-and-so." Similarly, if he said, "Give the promissory note that I have against so-and-so to so-and-so," he has acquired whatever is in the note even if he did not say "give it to him," and all the lien that is within it [Shach]. For since for a healthy person it is subject to transfer via writing and delivery, the words of the shechiv mera stand in place of the writing and delivery. And even though in siman 66 it was explained that one who sells a promissory note to his fellow, the heir of the lender can forgive the debt to the borrower, nevertheless, if he gave it as a gift of a shechiv mera, the heir cannot forgive it, so that the mind of the sick person is not distressed if he knows they can nullify his words. Furthermore, since the Sages established the recipient of a gift of a shechiv mera as an heir, this heir cannot forgive what is in the hand of the other heir [Levush]. And that which we say, that he acquired this debt, this is specifically in a gift of everything without leaving anything over, or in a command due to death; for if not so, it would be a partial gift of a shechiv mera, which is not acquired unless he performed a kinyan, and regarding a loan a kinyan is not effective. Also regarding a deposit of money, a kinyan sudar is not effective, for currency is not acquired through exchange [and the difficulty of the Gra, subsection 42, is resolved]. And some say that this matter, that a shechiv mera can transfer his loan that is in the hand of others, applies to a loan he has in the hand of an Israelite, but not to a loan in the hand of a gentile, for the giver himself does not rely on the fact that he will be repaid and did not intend it as a complete gift. And even if he has a note or a collateral, there is reason to doubt if he can transfer it, for an Israelite does not acquire collateral from a gentile [Pesachim 31a]. And our teacher, the Rema, ruled accordingly. But if he transferred the body of the collateral to him as a gift of a shechiv mera, he has acquired it just as with a healthy person [Netivot HaMishpat], for in any case the collateral is in his hand. And if he made the recipient of the gift of a shechiv mera an heir to a portion of his property, he takes a portion also in the debt of the gentile, for the issue of reliance is not relevant since he included it within the general inheritance [ibid.].

And so, even though a shechiv mera does not transfer ownership of something that has not yet come into the world, and even if he transferred ownership to a fetus, the fetus does not acquire it, nevertheless, a shechiv mera who commanded to give a gift to the fetus in his wife's womb, the fetus acquires it, because a person's mind is close to his son, as was written in siman 210. And specifically when she is already pregnant, as was written there. And even for a healthy person through a kinyan, the law is such if he transferred ownership of movables or land to his fetus [Shach].

A shekhiv mera who commanded that they give a palm tree to so-and-so, and he had many palm trees, and he had two palm trees that were half-palms in which he had a partner—the heirs can push off the recipient to the two halves, even though there is greater burden in two halves than in one whole palm tree, and they can say that he called the two halves a "palm tree." And some say that since he also has a whole palm tree of his own, certainly such was his intention according to his language when he said "a palm tree," and he takes the whole one, unless he has no whole palm tree, in which case his intention was necessarily for the two halves. Our teacher, the Rema, ruled according to the first opinion. And it appears to me that even according to the first opinion, if he said "give him a field of one hundred cubits," and he had fields of one hundred cubits and fields of fifty cubits, they do not have the power to give him two fields of fifty, for he said "one field" and not "two fields"; for regarding a palm tree, a person calls two halves a "palm tree," whereas regarding a field, there is no set measure for a field, and similarly regarding other things.

A shechiv mera who said, "Give a maneh to the poor," or "a sefer Torah," or "books to the synagogue," they must give to the poor of that city in which the shechiv mera lived, and the sefer Torah and the books they shall give to the synagogue in which he was accustomed to pray, for presumably such was his intention when he did not specify. And if he was accustomed to two, they shall give to both of them and divide between them; and a sefer Torah, which is impossible to divide, they give to the place where he was more accustomed. And in Yoreh Deah siman 258 it has been explained that even if the shechiv mera died in another place and left for tzedakah or for a synagogue without specification, they deliver it to his city where he lived. And if he left a large sum, such that it is evident that it is not for one city, they divide it among several cities according to experts.

A shekhiv mera who said, "My property is to Ploni and Ploni," they divide equally, even if they are a hundred. If he said, "My property is to Ploni and to my children," Ploni takes half and the children half. If he said, "To Ploni and Ploni and to the children of Ploni," the children of Ploni take half and the first two take half. And so too if he said, "Ploni shall share in my property," he takes half. But if he said, "Give a portion to Ploni in my property," the intention is not a division into halves, but rather a mere portion. And the Rambam wrote in the eleventh chapter of Zekhiyah that he takes one-fifteenth, for there is no portion less than this. And he wrote that there is one who instructed that he should take a quarter of the property, for an unspecified portion is a quarter. And so he wrote that a shekhiv mera who said, "Give a portion to Ploni in the wine pit that I have," he takes a quarter of the pit. If he said, "Give him a portion in it for a barrel," he has minimized it and he takes an eighth. If he said, "Give him in it for a pot," he takes a portion of one-twelfth of the wine. If he said, "Give him in it for a cup" — and it is a small vessel to drink from — he takes a portion of one-sixteenth of the wine in the pit, for he has revealed his mind that he intended a small portion, and one does not learn from these measures for another law. Thus far his words, for to them these measures were known. And there are some of our teachers who hold that even in all of these he has only the smallest portion, for these measures stated in the Gemara [Bava Batra 63a] are not according to the law, for this is according to Sumkhos who holds that money of doubtful ownership is divided; but we, who establish the law like the Rabbis, hold that the burden of proof is on the claimant. And all of this is regarding a gift, but regarding a sale we say "the money informs," for in this everyone agrees that we follow the money.

A shekhiv mera who divides his property among his sons and said, "Let so-and-so take a portion of my property," he takes a portion like one of the sons. Similarly, one who gave his property to his sons and to his daughter, she takes a portion like one of them, for we hang it on the fact that such was his intention. And if he stipulated in addition to this that if the brothers marry her off or she marries of her own accord, she shall take her dowry and depart—and his intention was that even if she does not bring into her dowry the entire portion that she has, she shall not take any more—his words stand. And this is specifically when all the brothers married her off or she herself, but if one of the brothers married her off and allotted her less than the portion due to her, it is not within his power, and she takes the remainder, for he only stipulated when all of them marry her off or she herself. Similarly, if one allotted her more than her portion, it is not within his power [Sma], unless all of them allotted it to her. And it appears to me that regarding this one who allotted, they take from his portion according to the value of the addition.

One who says, "If my wife gives birth to a male, he shall take a maneh, and if she gives birth to a female, she shall take two hundred," if she gave birth to a male, he takes a maneh, and if she gave birth to a female, she takes two hundred. And if she gave birth to a male and a female, the male takes a maneh and the female two hundred. And even though he did not say this explicitly, nevertheless, we estimate his intent that such was his intention, that when she gives birth to a male and a female, both should take, because a person's mind is close to his offspring. And the same law applies if she gave birth to two males, each takes one hundred, and if she gave birth to two females, each takes two hundred [it appears to me]. And all this is regarding his offspring, but if he said to a certain woman, "If you give birth to a male, he shall have a maneh, and if you give birth to a female, she shall have two hundred," and she gave birth to a male and a female, she takes only two hundred [the Rosh, chapter 9 of Bava Batra]. And there are those who disagree even regarding his offspring [Rashbam 140b]. And the Rambam and the Shulchan Aruch ruled according to the first opinion. And if she gave birth to a tumtum or an androgynos, it takes like the lesser of the two of them, and we do not say that it is not a child at all, for he intended only for a definite male or female, because presumably he intended for whatever child it may be. And if she gave birth to two such as these, each takes like the lesser of the two of them according to the first opinion [it appears to me]. And if afterwards the tumtum was torn and found to be a male or a female, it takes according to the condition. And this law applies only to a shekhiv mera and not to a healthy person, for regarding a healthy person, an act of kinyan is required, and currency is not acquired through chalifin, and furthermore, it is an asmakhta, for anything involving "if" is an asmakhta and he does not acquire. And some say that even regarding a healthy person the law is so, and he takes objects worth a maneh or two hundred, and this is not an asmakhta, as it is like any gift that is given on a condition, and such is the primary view [the Shach].

A case occurred involving a person facing death who said, "If my wife gives birth to a male, let two-thirds of my property be given to him and one-third to my brother; and if she gives birth to a female, let one-third be given to her and two-thirds to my brother." She gave birth to a male and a female. The Rosh, of blessed memory, ruled that the gift he gave to his brother is void and the matter returns to Torah law, and everything belongs to the son. The reason is that even though it has been explained that his intention was also for both of them, this is only when the condition does not affect another person. However, in this case where the condition affects his brother and he made the gift dependent on the condition, he certainly spoke precisely. Since the condition was not fulfilled, the entire gift is void. And it is not specifically another person; rather, even if this recipient were his son or his daughter, the gift would also be void and return to Torah law, for regarding a condition that affects another matter, he certainly spoke precisely [Shach].

In Ketubot [85b], a case was brought regarding a shekhiv mera who said, "My property to Tuvia," and died and did not specify who he was, but rather just "Tuvia." And one came whose name was Tuvia and said, "He commanded to give to me." The sages said that they give to him, and even if it is known to us that there is another in the city whose name is Tuvia and was also close with the shekhiv mera, nevertheless, they do not wait for him; for this one who came, since he preceded himself to come, presumably he knows that he intended for him. And we do not fear in this for a deceiver, since he was not afraid that perhaps another would come and the deception would be revealed. And nevertheless, the beit din must investigate and inquire if he had closeness with him and that it could be, according to the estimation, that he wrote all his property to him [it seems to me]. And our sages, of blessed memory, said that if this man Tuvia is a talmid chakham and is called by everyone "Rabbi Tuvia," they do not give to him, for the shekhiv mera did not say "to Rabbi Tuvia." However, if the shekhiv mera was accustomed to him from his childhood and always did not call him "our teacher," they give to him, for it is not a flaw that he did not say "Rabbi Tuvia." And if two came to request and their name is Tuvia, and with both of them the shekhiv mera was close, if one of them was a talmid chakham, he precedes, for presumably he commanded to give to him, unless it is known that to the second he was closer. And Rashi, of blessed memory, who explained the reason is because presumably every person justifies his deeds before his death, and presumably there is more of a mitzvah to leave to a talmid chakham; and according to this, even if he was closer to the second, the talmid chakham precedes. And if there is no talmid chakham among them, and one of them was a neighbor to him in his business, even if he was not his neighbor in residence but was accustomed to him in business dealings, he precedes, for presumably he intended for him. And some say that he must also be a neighbor in residence [Taz]. And if one was a relative fit to inherit him by law, he precedes even a talmid chakham [Shach]. And if they were both relatives or neighbors or both talmidim chakhamim, our sages, of blessed memory, ruled in this "shuda de-dayyani," that the judges shall do according to their estimation of the mind to whom the shekhiv mera intended, and they give to this one. And so too if there are many whom it is possible to think that the shekhiv mera spoke of them, they shall judge in this "shuda de-dayyani." And one should not ask that even without "shuda" they must see according to the estimation of the mind to whom he said to give, such as if one is a talmid chakham or a neighbor and the like; for it can be said that in truth "shuda de-dayyani" is not a complete determination like when one of them is a talmid chakham or a neighbor where we hang it that certainly he intended for this one, but rather a slight estimation of the mind. And therefore, as it appears to them in the first estimation, so they shall do, even if afterwards the estimation will be reversed for them. And only a judge who is an expert for the public can judge "shuda" and not another, even if he is a talmid chakham, for this is not a fixed law that cannot be reversed in opinions, but rather this is only like a casting of the intellect in the first glance, for the term "shuda" is a term of casting [according to what I wrote, all that our teachers asked on the explanation of Rashi and the Rambam is well, for this is almost dependent on the will of the judge; and the Tosefta at the end of Bava Batra holds like the one who says "they shall divide" at the end of the first chapter of Gittin, and the halacha is not so; see Tosafot and the Rosh and the Ran, Ketubot 85b and Bava Batra 35a and the end of the first chapter of Gittin].

Our teacher, the Rema, wrote that this matter of estimating the intent of the giver applies specifically to one giving them a gift, but if he said that he is indebted to Tuvia and two equal individuals came, they shall divide it together, for there is no estimation of intent since he is indebted to them. Thus far his words. For regarding a loan or a deposit, there is no estimation of intent at all regarding from whom he borrowed or who deposited with him, for sometimes a person borrows even from one he does not know and accepts a deposit from him. And since two came whose names are identical and it is possible that he borrowed from them or they deposited with him and it is impossible to clarify, they divide in any case. And some say that this is specifically when both came equally, but if one of them preceded, we give to him because he preceded himself [Sma]. And some disagree, for granted that regarding a gift it is relevant to say that the second one who did not precede himself should have thought that the first would precede him, and since he was not concerned for this, it proves that in truth the intention of the person facing death was not regarding him; but regarding a debt and a deposit, why should it enter his mind that a liar would come and say that he is the lender or the depositor? Therefore, even if the second came afterward, they divide [Taz]. And so it appears primary. And some disagree with all of this and hold that regarding a debt and a deposit we also say shuda de-dayyani. However, regarding a debt, the heirs can rebuff both of them as in siman 49 regarding two named Yosef ben Shimon, and to each one they can say, "Bring proof that you are the lender." Therefore, they must necessarily write a power of attorney to one another and deduct the debt [Shach]. And so regarding a gift and a deposit, they can rebuff each one without a power of attorney when both are equal [ibid.]. And some disagree regarding a gift and a deposit and hold that they cannot rebuff [Netivot HaMishpat].

A shekhiv mera who commanded that they should not eulogize him, they listen to him, for a eulogy is only for the sake of the honor of the deceased, and this person has waived his honor, and it is a mitzvah to fulfill the words of the deceased. However, if he said that they should not bury him from his assets, they do not listen to him, and they compel the heirs to bury him from his assets, for burial is an obligation, and they extract from them all the expenses, as is written in Yoreh Deah siman 348. And the burial expenses are upon the heirs; even if he gave many gifts and left little for his heirs, the heirs are obligated to bury him. But if they did not inherit at all, it is not incumbent upon them. Nevertheless, a poor person who died and has a son of means, they compel him to provide the burial expenses [Be'er Heiteiv]. And even regarding a eulogy, there was an incident involving one leader of the generation who commanded not to eulogize him, and another leader of the generation eulogized him and said that there is no issue here of the mitzvah to fulfill the words of the deceased, for the eulogy is over the loss of his Torah from the world, like Rava who struck his flesh until blood descended from his flesh when Rabbi Eliezer died, and he was not concerned with the prohibition of gashed flesh, for he did it for the sake of Torah [end of chapter 7 of Sanhedrin].

Wills that are processed in secular courts are valid, for all evidentiary documents are valid in secular courts, as I wrote in siman 68. And according to what I wrote there regarding the opinion of the Rambam, it is only valid in the case of a command due to death, or a gift of one's entire estate, or a gift of a portion with a kinyan sudar; however, with a kinyan shetar it is not effective [see Sma subsection 72]. And see there that in a place where there is dina d'malkhuta, it is valid in all circumstances:

A shekhiv mera who said, "A maneh to so-and-so my son and he shall not inherit more," and "A maneh to so-and-so my son and he shall inherit," and he had many assets and has only these two sons, the second inherits everything, and the first has only the maneh that he gave him. And we do not say that if so, why did he say regarding the second, "and a maneh to so-and-so my son," for behold he inherits everything, but rather he certainly retracted what he said and his will now is that the second should not exceed the first except by a maneh and they both should inherit the remainder—we do not say so, for if so, he should have said in the plural "and they shall inherit." Rather, he certainly gave everything to the second, and as for why he needed to say the maneh regarding the second, perhaps he had two hundred zuz in his possession that were not included in his property and he divided them between his two sons [Tur]. And there was an incident involving a shekhiv mera who said, "My assets shall be for the male sons of Shimon if he shall have any, and if he shall not have any, they shall be for the male sons of Naftali." And Naftali had male sons at the time of the will, and Shimon did not have male sons. Immediately after his death, the sons of Naftali descended to the assets, and after some time, male sons were born to Shimon. The Rashba, of blessed memory, ruled that neither the sons of Shimon nor the sons of Naftali acquired this gift. The sons of Shimon did not acquire because a person cannot transfer ownership to something that has not yet come into the world, and even if the wife of Shimon were pregnant, one only transfers ownership in such a case to his own son and not to another, even to his grandson. And the sons of Naftali did not acquire, for even though a person cannot transfer ownership to something that has not yet come into the world, nevertheless he can make a condition regarding this, as written in siman 209, and behold the condition was not fulfilled regarding the sons of Naftali. Therefore, the gift is void and the inheritance returns to the law of the Torah.

One who gave his fellow to dwell in one of his houses and wrote for him in a testament, "Give to so-and-so one of my houses to dwell in," and wrote that the recipient of the gift has the ability to choose whichever house he desires, whether from the lower houses or from the upper ones, he has the ability to choose even from the middle ones. Since he initially wrote that he may choose whichever house he desires, and that which he wrote, "whether from the upper ones or from the lower ones," he only wrote to strengthen his hand to expand his words. And so it is in all matters of testaments of a shekhiv mera, that a matter which is sustainable according to the language of the general rule, even if according to the language of the detail it does not appear so, we say that this is only to strengthen the hand and not to detract from the general rule. And specifically when he listed the details, he spoke with the language of "whether... whether..." which implies strengthening the hand, as in the case of the house that has been explained; but without this language, the general rule includes only what is in the detail [as is implied from the language of the Rashba, see there].

Witnesses who wrote the entire testament of a shekhiv mera together, all the things he commanded, and one of the recipients of the gifts came and requested from the witnesses that they write for him his portion of the testament alone so that it would be in his hand as evidence, if the witnesses wish, they may do so. We do not say they have already fulfilled their mission, for since this is not for collection but merely for evidence regarding his portion, why should they not be able to do so, as this is only a record of matters. And if the heirs say "we have paid," they would be believed, and the benefit is only that they will not be able to deny his gift; for regarding any deed of testament, the witnesses may write what they heard from the mouth of the shekhiv mera even if he did not say to them "write," as this does not have the law of a deed, and the heirs would be believed to say "we have paid." However, the admission of a shekhiv mera regarding a debt that he owes is a complete deed and they cannot say "we have paid," and he may collect even from encumbered properties, and even for this he does not need to say "write," and it will be explained in siman 255 [Sma]. And some say there is no difference between a deed of testament and a deed of admission, for if the witnesses wrote on their own for a record during his lifetime or after his death, even if they gave the deed into the hand of the recipient, it does not have the law of a complete deed and they are believed to say "we have paid." But if he commanded them to write, whether regarding a gift or regarding an admission of debt, this has the law of a complete deed and they are not believed to say "we have paid," for since the deed of testament reached the hand of the recipient during the lifetime, they should not have paid without the return of the deed to their hand [Bach], and so appears to be the primary view [Shach].