Siman 276

What is the order of inheritance? It is written: "If a man dies and has no son, then you shall transfer his inheritance to his daughter. And if he has no daughter, then you shall give his inheritance to his brothers. And if he has no brothers, then you shall give his inheritance to his father's brothers. And if his father has no brothers, then you shall give his inheritance to his kinsman who is closest to him of his family, and he shall inherit it." And all the descendants of a prior heir precede a later heir; for just as a son precedes a daughter, so too the descendants of the son—when he is not alive and left a son or a daughter, or a son's daughter, or a daughter's son, or a son of a daughter's son, or a daughter of a son's son, or a daughter of a daughter's son, until the end of all generations—precede the daughter of the deceased. Similarly, the descendants of the son's daughter, whoever they may be, even a daughter of a daughter's daughter, precede the daughter of the deceased. Similarly, the descendants of the daughter of the deceased precede the brothers of the deceased, and the descendants of the brothers precede the father's brothers. However, the father of the deceased precedes the brothers of the deceased, who are his sons, for he is closer to the deceased than his sons. And the Torah hinted at this in what it wrote, "to his kinsman who is closest to him," for the closer relative precedes. And that which it did not write explicitly is because the ways of the Torah are ways of pleasantness, and it did not wish to explicitly mention a matter of sorrow, that a son should die in his father's lifetime and his father should inherit him. And you should know that this is so, for it is obvious that the father precedes his sons, who are the "father's brothers" mentioned in the verse, and nevertheless, it did not mention him there either; rather, it wished to mention the way of blessing, as it is written: "In place of your fathers shall be your sons."

Therefore, this is the order of inheritance: when one dies, his son inherits him. If no living son is found for him, we see if the son has any offspring or offspring of his offspring, whether male or female, until the end of all generations; they stand in his place and inherit everything. If no offspring is found for him, if the decedent has a daughter, she inherits him. If no daughter is found alive for him, if she has offspring or offspring of her offspring, whether male or female, until the end of all generations, they inherit everything. If no offspring is found for her, the inheritance returns to the father of the deceased decedent. If his father is not living, it returns to the offspring of the father, who are the brothers of the deceased. If he has a brother, he inherits everything. If no brother is found alive for him, if he left offspring or offspring of his offspring, whether male or female, until the end of all generations, they inherit everything. If no offspring is found for him, the inheritance returns to the sister of the deceased decedent or to her offspring and the offspring of her offspring until the end of all generations; for just as the brothers of the deceased inherit by power of their father, who is the father of the decedent, so too the sister of the deceased when the father has no son. If no sister and no offspring from her are found for him, the inheritance returns to the father of the father of the deceased. For that which is written, "and you shall give his inheritance to the brothers of his father," this is when the father of the father is not living, as I wrote regarding the father of the deceased. For it is a great principle that children do not inherit when their father is living when they are not the children of the deceased himself; since their kinship is by power of their father who is living, therefore the father precedes all the issue of his loins, except against the offspring of the deceased himself. And if the father of his father is not living, it returns to his offspring, who are the brothers of the father of the deceased, or to their offspring until the end of all generations. And if there are no brothers for the father of the deceased and no offspring from them, it returns to the sister of the father of the deceased or to her offspring until the end of all generations. And if there is also no sister for the father of the deceased and no offspring from her, it returns to the father of the father of the father of the deceased. And if he is not living, he bequeaths it to his offspring, who are the brothers of the father of the father of the deceased, or to their offspring until the end of all generations. If no brothers of the father of the father of the deceased and no offspring from them are found, it returns to the sister of the father of the father of the deceased or to her offspring until the end of all generations. And in this manner, inheritance feels its way upwards and upwards until the tribes of Israel.

One who died and left a daughter and a son's daughter, even a daughter of a daughter of a daughter of a son, unto any number of generations, she precedes and inherits everything, and the daughter has nothing; for the daughter of the daughter of the daughter of the son comes from the power of the son of the deceased. And the same law applies to a brother's daughter with the sister, and to the daughter of the daughter of his father's brother with his father's sister, and so too anything similar to this.

One who had two sons and both died in his lifetime, and one left three sons and the second left only one daughter, and afterwards the grandfather died, the daughter of the son inherits half of the assets and the three inherit the other half. For we view it as if the sons were alive and inherit equally, and each one bequeaths his portion to his descendants. In this manner, the children of brothers and the children of the father's brothers divide until the first of the generations. And if the father of the daughter was a firstborn, the daughter takes two portions from the assets of the grandfather, for she stands in the place of the father, as I wrote at the end of siman 277.

It is written, "from his family and he shall inherit her," from which we learned that the father's family is called "family," and not the mother's family, for every person is identified by the name of the father, as it is written, "their generations by their families, by their fathers' houses." Therefore, the mother does not inherit from her son or her daughter, but the relatives from the father's family inherit from them. Likewise, two brothers from the mother and not from the father do not inherit from one another, and the family of each one's father inherits from him. Our teacher, the Rema, wrote that even a shetuki who has no heirs from the father, his mother's family does not inherit from him; rather, he is like a convert and his property is ownerless. Thus far his words. And it appears to me that this is specifically when they did not investigate his mother to say from whom she bore him, but when she says, "I became pregnant from so-and-so," she is believed, and the family of that so-and-so inherits his property, for even for the priesthood they permit based on her word when she gives birth to a daughter, as is written in Even HaEzer siman 6. And if that so-and-so denied her, certainly he does not inherit from him, for the admission of a litigant is like a hundred witnesses. Furthermore, it appears to me that if ten men were standing and one of them separated and had relations with his mother, and they did not investigate her as to from whom she became pregnant, since in any event she became pregnant from one of these, no other person can take his property, and these ten shall divide it among themselves. And even though for the priesthood he does not have the status of priesthood even when the ten are kohanim, as is written there in siman 3, this is because for the priesthood we require "his seed after him" to be of lineage, and even this is only rabbinic [Yevamot 100b]. Therefore, even though we derive from the verse "to be a God to you and to your seed after you" that we require "his seed after him" to be of lineage [ibid. 42a], it is only a mere asmachta [Beit Shmuel siman 13, subsection 1]. And one who comes from afar and dies and leaves an inheritance, and his father's family is not known, the money shall be placed in the hand of a trustee until they become known, and it is not handed over to his mother's family even if they are known.

Even though a mother does not inherit from her son, nevertheless, a son inherits from his mother. Similarly, a daughter inherits from her mother when she has no son or offspring of a son. The law regarding the mother's property is like the law regarding the father's property: that the son and his offspring take precedence over the daughter, and if she has no son or offspring of a son, her daughter or her offspring shall inherit from her. If she has no daughter or offspring from her, her father shall inherit from her. If she has no father, the sons of the father—who are her brothers—inherit from her. If the brothers have offspring, they stand in their place when the brothers are not alive. If the father has no sons and no offspring from them, the daughters of the father—who are her sisters—or their offspring inherit from her. Everything is according to the inheritance of the father. All this applies to a woman who has no husband, for the husband inherits from his wife, as will be explained. The inheritance of a son from his mother is explicit in the Torah, which warned the generation of the wilderness that every daughter who inherits a portion shall be married to one from the tribe of her father, and not to another tribe, so that a portion shall not be transferred from tribe to tribe. For if she were married to another tribe and her sons were to inherit from her, the portion would be transferred to another tribe; it follows that a son inherits from his mother. And even though the transfer of a portion also occurs through a husband, nevertheless, two verses are written: one for the transfer of the husband and one for the transfer of the son, as is explained in the Gemara [Bava Batra 112b].

When the son inherits his mother and dies without offspring, his father or his brothers from the father inherit him, even though he is not his brother from the mother and is a stranger to her; nevertheless, he inherits the property, for he inherits through the power of the brother and not through her power. And this is when her son is alive at the time of her death. But if the son died before his mother and did not leave offspring, we do not say that his brother from the father shall inherit her based on his power, since he is not alive. And thus the sages said: A son does not inherit his mother in the grave to transmit to brothers from the father. And even though other heirs inherit based on the right of the deceased, as has been written, this is when the living heir is also a relative of the testator; but here, where they are strangers to her, they do not inherit her. And also the father does not inherit her when he must inherit from the side of his son's right, such as if he divorced her; but if he did not divorce her, he inherits her, for the husband inherits his wife, and it was explained in Even HaEzer siman 96.

This is the wording of our teachers, the authors of the Shulchan Aruch, in section 5: A son does not inherit from his mother in the grave to transmit the inheritance to his brothers from his father; for if he died during her lifetime and afterwards she died, we do not say that had he still been alive he would have inherited from her, and now too, if he has no offspring, his brothers from his father shall stand in his place to inherit from her. Rather, her inheritance returns to the family of her father's house, since her son has no offspring. But if the mother died during his lifetime and afterwards he died, even if he was a minor one day old, since he lived after her even one hour, he inherits from her and transmits the inheritance to his heirs from his father's family. And specifically when the minor was born, but a fetus does not inherit from his mother if she died while she was pregnant to transmit to his heirs from his father. Thus far his words. And the Rambam, of blessed memory, in chapter 1 of Nahalot, wrote that even if he was a minor one day old and his months were not completed, since he lived one hour, he inherits and transmits. And many disagree with him, for if we knew that his months were not completed, he is like a stillborn and does not bequeath to his brothers from the father. And there is one who says that we must know clearly that his months were completed [Ra'avad]. And regarding the opinion of the Rambam, it can be said that he also holds like the opinion of those who disagree, and his intention was that it is not necessary to know if his months were completed, for the majority of births have completed their months; but if we knew that his months were not completed, he is like a stillborn [see there in Lechem Mishneh].

Even though we have said that the law is the same regarding the inheritance of the father and the inheritance of the mother, nevertheless, regarding the matter of the firstborn there is a difference, for the firstborn does not take a double portion in the assets of the mother as he does in the assets of the father, and it will be explained in siman 278.

Regarding the matter of inheritance, there is no distinction between a fit heir and an unfit heir, and all relatives, even if their kinship is through a transgression, inherit like fit heirs. How so? If one had a brother or a son who is a mamzer, he inherits like a fit heir, and so too the rest of the heirs. However, the son of a maidservant or a gentile woman is not considered a son for any matter and is not genealogically related after him, for the offspring of a maidservant or a gentile woman is genealogically related after the mother, as is written in Even HaEzer siman 4.

Our teacher, the Rema, wrote in section 6: Heirs do not inherit things that lack substance or a mere benefit that is not monetary. Thus far his words. According to this, if one bequeathed a courtyard to one son and the airspace of the courtyard to the second, it is nothing, for airspace lacks substance, as was written in siman 212. Similarly, if he bequeathed a house to one of his sons and to the second he bequeathed that he should dwell in it for such and such years, it is nothing, for dwelling lacks substance, unless he says "my house for dwelling in it," as was written there. Similarly, if he bequeathed a palm tree to one of the sons and to the second he bequeathed the eating of its fruits, it is nothing, for eating lacks substance, unless he says "the palm tree for eating the fruits," as was written there. Similarly, he cannot now bequeath a thing that has not yet come into the world [Tosafot Bava Batra 148a]. However, a thing that is not in his possession, it is obvious that he can bequeath. And one should not say that since he cannot bequeath a thing that has not yet come into the world, why do we say that a firstborn does not take a portion of the birthright in prospective assets (ra'ui), for all prospective assets are things that have not yet come into the world, and if so, even an ordinary son should not inherit; for this is not a difficulty at all, because the prospective assets that the ordinary son inherits are not by virtue of him bequeathing them now, but rather that he inherits later when the prospective assets reach the status of inheritance and exist in the world. Also, the improvement (shevach) that he inherits is not because of the power of his benefactor, but because his properties have improved, as was written in siman 278 [it appears to me].

Some say that the fact that a father cannot bequeath to his son a tovat hana'ah is only when it is in the possession of others, such as if he left money to be distributed to the poor to whomever the distributor wishes, where the distributor has a tovat hana'ah in this; if he deposited them in the hand of another and bequeathed the tovat hana'ah to his son to give to whomever he wishes, it is nothing, for tovat hana'ah is not property that he should have the power to bequeath to his sons. But if the money is in the possession of the son and he bequeathed the tovat hana'ah to him, he can bequeath it [Shach]. And there are those who disagree on this [Ketzot HaChoshen in the name of the Shelah]. And also his courtyard does not acquire tovat hana'ah, for it is not like property that his courtyard should acquire for him [ibid.]. Therefore, according to the first opinion, even in a matter that has no substance, such as one who dwells in the courtyard where he gave him the airspace, or one who dwells in the house where he gave him the residence, he inherits them. And the primary view is like the first opinion [Netivot HaMishpat]. And just as the heir cannot inherit the tovat hana'ah when it is in the possession of others, so too he himself cannot extract it from their hand, and also he cannot give the tovat hana'ah to another if it is not in his possession [Shach]. And it appears to me that all this is according to those who hold that tovat hana'ah is not property, but according to those who hold that it is property, as will be explained in siman 350, he can bequeath it, and all the more so that he himself can extract it from the hand of others and deliver it to whomever he wishes. And it is possible that regarding bequeathing, everyone agrees because there is no substance in it, similar to an oath at the end of siman 87, and it requires further study [the source of the law is from the Maharik and from the Mordechai in the name of the Maharam, and they rule that tovat hana'ah is not property, as the Shach wrote in siman 350].