Siman 256

It has already been explained that the sages established a gift of a shekhiv mera like an inheritance. Therefore, a convert who has a son whose conception was not in sanctity, just as he does not inherit him, as I wrote in siman 283, so too he cannot give him assets as a gift of a shekhiv mera, neither all of them nor part of them, if he gives them as an explicit gift of a shekhiv mera or as a command due to death; for inheritance and a gift of a shekhiv mera have the same law. And if we were to say that he acquires through a gift of a shekhiv mera, they would also say that he is fit to inherit him. And if he gave to another, not to his son, even to another convert, his gift is valid; and they only decreed regarding his son specifically, so that no ruin regarding forbidden relations should result from this if he were considered like his son. This is the opinion of the Rambam in the ninth chapter of Zekhiya. However, many of our teachers hold that there is no distinction between a son and another, for he cannot give to any person as a gift of a shekhiv mera, because in a gift of a shekhiv mera the acquisition is after death, and there is no acquisition after death except that the sages established it like an inheritance. Therefore, this one who is not subject to inheritance such that others should inherit him—for he is considered like a newborn child—does not have the power to give as a gift of a shekhiv mera, and he must give as a gift of a healthy person with a kinyan or by way of admission. And if not, his assets remain ownerless after his death, and whoever acquires from the ownerless property acquires it. Our teacher, the Rema, decided in favor of this opinion. Therefore, some say that if he has one son whose conception was in sanctity and who inherits him, he can give even to his son whose conception was not in sanctity as a gift of a shekhiv mera; since he has someone who inherits him, and even though the recipient is not subject to inheritance, we follow the giver [Tosafot Bava Batra 149a].

Some say that even though his gift of a shekhiv mera is nothing, nevertheless we say regarding it that "it is a mitzvah to fulfill the words of the deceased" if it is in the manner explained at the end of siman 252, where he handed them over to a third party. For "it is a mitzvah to fulfill the words of the deceased" is not from the perspective of inheritance, but rather it is a mitzvah like all other mitzvot, and there are distinctions between one and the other as written there. And some disagree, since in any case, even in this, the object does not belong to the recipient until after death, its law is like a gift of a shekhiv mera.

A shetuki who was born of promiscuity and his father is unknown, who has no paternal inheritance, and who died without offspring to whom he could bequeath—some say that he also cannot give a matnat shekhiv mera. And even though his mother says that she became pregnant from a certain person, and she is believed to validate the child as is explained in Even HaEzer siman 4, nevertheless regarding inheritance she is not believed if that person does not admit it [Terumat HaDeshen]. And even though it is known that in any case she became pregnant from an Israelite and he has heirs, but it is merely not known who they are, nevertheless since in any case he does not bequeath, he is not included in matnat shekhiv mera [Netivot HaMishpat]. And some say that a shetuki is like a complete Israelite, and since there is a dispute of the authorities, we judge in this matter the law of "the burden of proof is upon the claimant," and whoever is the possessor of his property, it is not possible to extract it from him; and if two took possession as one, they divide it. And some say that certainly regarding matnat shekhiv mera he cannot give, as I wrote in section 1 according to the second opinion which is primary to the halakha, only regarding the mitzvah to fulfill the words of the deceased it is a legal doubt [Taz and Shach].

An incident occurred in ancient times regarding a female convert who gave her property as a matnat shekhiv mera to Reuven, and others were in possession of all the property while only a maneh was in the hand of Reuven. She commanded him in her will that he should give that maneh to a certain female orphan. The convert died and the property remained in the hand of those in possession, and the gift was voided as has been written according to the second opinion in section 1. Reuven wanted to withhold the maneh for himself with the claim that since the gift is void and the property is hefker, he too should acquire it from the hefker, and as for what she commanded to give to the orphan, behold there is nothing in her will. The Rosh ruled that nevertheless the orphan acquired it; and granted that she did not acquire it by power of matnat shekhiv mera, nevertheless this Reuven acquired it on behalf of the orphan. If it is not effective by power of matnat shekhiv mera, it is effective in that he acquired it from the hefker for her needs, and it is like one who lifts a lost object for his fellow, where his fellow acquires it. And even though he did not intend to acquire it for her from the hefker but rather by power of matnat shekhiv mera, nevertheless since he lent her his power and his domain to acquire it for her, if it is not effective by power of a gift, it shall be effective from the side of hefker. There are those who raise a difficulty against this ruling, for behold Reuven did not intend for the sake of an act of acquisition, but rather he was a guardian of the orphan who acquired it according to his opinion through the will of a shekhiv mera; and since the will is nothing, through what did she acquire it? This is similar to one who hoes in the property of a convert and thinks they are his own, where he does not acquire because he did not intend for any act of acquisition at all [Ktzot HaChoshen]. And it is not a difficulty at all, for certainly if he also would not have acquired it, the law would be so; but since perforce if she does not acquire it, he will acquire it by reason of hefker because his domain acquires for him, and since he is her guardian and gave her his domain, this domain itself acquires for her, for this is as if they are in her domain [Mishneh LaMelekh and Atteret Zvi and Netivot HaMishpat, and according to what I wrote it is well-settled and the law is a true law].

Even though it has been explained that a ger cannot give a gift of a shekhiv mera, nevertheless, if he admitted during his illness that so-and-so has such-and-such with him, and he admitted with a complete admission and commanded to give it to him, his admission is a valid admission. And even if he admitted to his son whose conception was not in sanctity or to a kutei, we give it to him, whether it was an admission of a loan or of a deposit. And also in a healthy state a complete admission is effective [Rashdam]. And even if it is known that that specific person never had anything with him, he acquires it through his admission. However, a shekhiv mera who commanded to give a gift to an extortionist, we do not listen to him.

A shekhiv mera who said, "My slave So-and-so, make him a freeman," or who said, "I have made him a freeman," or "He is hereby a freeman," we compel the heirs and they emancipate him. And even though one who emancipates violates a positive commandment, this is when there is no benefit to the emancipator in this; however, when he receives money or the like, it is permitted, for he acts for his own benefit, and we hang it on the assumption that some benefit reached the shekhiv mera in this. And if he said, "My slave So-and-so, provide him satisfaction," we do not compel them to emancipate him, but rather that he should not perform the labor of a slave, but only light labor that he desires to perform. And some say that if the slave's mind is not satisfied except through emancipation, we compel them to emancipate him. And see what I wrote in siman 250, section 26, and in Yoreh Deah siman 267.