Siman 280

All heirs inherit based on their established status. How so? Witnesses who testified that this person is established for us as the son of so-and-so, or his brother, or other types of kinship—even though they are not witnesses of lineage and do not know the truth of the lineages—these inherit based on this testimony. For we stone and burn based on an established status, and certainly regarding monetary matters, for this status is like a certainty, and we extract money based on it. See Even HaEzer siman 3 and siman 19.

Yaakov who died and left two sons known to us, Reuven and Shimon, and it was not established for us that he has another son, and it was also not established that he does not have another son, and Levi came and Reuven said of him, "He is our brother," and Shimon says, "I do not know"—behold Shimon takes half the money and Reuven takes a third, for he has admitted that they are three brothers. Levi takes a sixth, half of the third that Reuven admitted to him. And if Levi dies, what he took shall be returned to Reuven, and he shall not give Shimon a portion of this, for he gave him nothing. However, if other assets fell to Levi, Reuven and Shimon shall divide them between them, for Reuven admits to Shimon that this Levi is their brother, and why should Shimon not take a portion of his inheritance? Only, first Reuven shall receive what Levi took from him, as has been written.

Our teacher, the Rema, wrote that this requirement for Reuven to first take what he gave him applies as long as the properties Levi took from Reuven are extant, or other properties that came from their proceeds; for then Reuven takes first what he gave him. But if these properties are not extant, nor that which came from their proceeds, Reuven takes nothing, but rather divides equally with Shimon. Thus far his words. And Reuven cannot say, "In any event, if you now receive a portion of his estate, give me half of what I previously gave him," for we say the law is established [the Gra], as previously you were obligated to give and not us, and now we must take a portion based on your admission, and each law stands on its own. Had these properties that you gave him been extant, or others in their place—such as if he sold these and bought those—you would rightly take them back. But since they are not extant, you have no claim against us. And some say that even if there is a doubt whether they came from their proceeds or not, he takes what he gave unless it is known that they did not come from their proceeds [Sma].

Our teacher, the Rema, follows his reasoning at the end of siman 268, but according to what we brought there from the opinions of the Acharonim, we do not clearly establish that the judgment stands; rather, it can be said that the judgment returns, for we combine the two acts as one, and Reuven must always receive his portion first. Also the Tur in Even HaEzer siman 163 ruled that it is a legal doubt, and here as well, if Reuven seized it, we do not remove it from his hand.

And even regarding this very portion that Levi took from Reuven, if these properties improved on their own and Levi subsequently died, if it is an improvement that "reaches the shoulders"—meaning that the improvement is completely finished such that it has reached the point where it is fit to be carried on the shoulder, such as grapes that have reached the point of being harvested—behold, this improvement is like property that fell to him from elsewhere, and they shall divide it. But if it has not yet reached the point of being harvested, behold, they belong to Reuven alone. And all the more so if they improved through the exertion of Levi, for it is like property from elsewhere and they shall divide it even if it did not "reach the shoulders" [Netivot HaMishpat]. And there is one who says that specifically regarding improvement through exertion is it like other property, but when they improved on their own, the improvement belongs to Reuven alone [Tur in the name of Rashbam].

And if at the time that Reuven said regarding Levi, "he is our brother," Shimon said clearly, "he is not our brother," and Levi took from the portion of Reuven, and afterwards Levi died, Shimon shall not inherit anything from him, even from assets that fell to him from another place; rather, Reuven shall inherit everything. And it appears that when Shimon denies or says "I do not know," if Reuven and Levi claim that he does know, they can administer an oath to Shimon. And this law that we have explained regarding brothers is the same for all heirs, when some of the heirs admit regarding additional people that they are heirs, and some of the heirs deny or say "we do not know."

Behold, if Reuven is settled in his estate which he inherited from his father, and one comes and says to him, "I am your brother, divide with me," and Reuven says to him, "I do not recognize you," he is believed. This is so even if a rumor had already spread that he has another brother in the provinces overseas, for he speaks to him with a legal claim. For we find regarding the brothers of Yosef that they did not recognize Yosef because they left him without the mark of a beard, and when they went down to Egypt, he had the mark of a beard. Therefore, this person must bring proof that he is his brother. And if he claims that Reuven recognizes him, he can administer an oath to Reuven [it appears to me]. And if he says, "I have witnesses that I am his brother, but they are afraid to testify because Reuven is a violent man and they fear him," if it is true that Reuven is a violent man, the beit din says to Reuven that he should bring those witnesses and they shall testify that he is not his brother. We are not concerned that they will testify falsely because of his violence, for certainly because of violence it is possible that they would not testify at all, but when they do testify, they will not testify falsely [Bava Metzia 39b]. And this has already been explained in siman 28.

There is a great principle regarding inheritance: anyone who is a certain heir while there is another who is a doubtful heir, the doubt does not remove from the certainty, and the certain heir takes everything. If both were doubtful, they divide. Therefore, one who died and left a son and a tumtum or an androgynos, the son inherits everything, for they are a doubt whether male or doubt whether female. However, if he left daughters and a tumtum and an androgynos, they inherit equally, for all of them are a doubt. And even though the tumtum and the androgynos inherit in any case, whether they are males or whether they are females, and the daughters do not inherit unless the doubts are females—and why do we not say that they are certain and the daughters are doubtful? For this is not called certain, since the doubt himself does not know the power of his inheritance, whether as a son or as a daughter. And even though he certainly has half, nevertheless he is not called certain because of this regarding his second half, for because he has a right to a portion of the assets, he is not called the possessor of all the assets [Rosh, Perek HaCholetz, siman 9]. Nevertheless, the opinion of the Tur is that the tumtum takes three parts and the daughter a fourth part, because he certainly has half, and in the other half it is a doubt and they divide [and see Tosafot at the beginning of Bava Metzia, d.h. Vezeh, at the end of the passage].

In Even HaEzer siman 112, the enactment of the sages was explained: that when a father dies, his daughters are sustained from his property until they reach maturity. Therefore, if the father left behind substantial property, the sons inherit and the daughters are sustained until their maturity. If the property is meager, such that there is only enough for the sustenance of the daughters, the sons do not inherit at all. Therefore, what we explained in the previous section is only regarding the law of inheritance, but regarding the law of the daughters' sustenance, what is the law in cases of doubt? It is as follows: one who died and left behind sons, daughters, and a tumtum or an androgynos—when the property is substantial, such that there is enough for inheritance and sustenance, the sons inherit and push the doubt toward the daughters, and he is sustained like them but does not take an inheritance. When the property is meager, such that there is only enough for sustenance, the daughters push the doubt toward the sons and say to him: "You are a male and have no sustenance with us." And if he left a son and a tumtum and the property is meager, it appears to me that according to the previous opinion, which is the opinion of the Rambam, the son inherits everything because the tumtum is a doubt, as it is not known if he comes by way of inheritance or by way of sustenance, and the son is a certain heir. According to the Tur, the tumtum takes three parts and the son a fourth part, because the tumtum has half regardless—whether from the side of inheritance or from the side of sustenance—and regarding the other half, it is a doubt and they divide. But with substantial property, when he left a son and a tumtum, according to everyone the son inherits and the tumtum is sustained like a daughter. And a daughter and a tumtum with meager property, the tumtum has nothing [it appears to me].

According to what has been explained, the tumtum and the androgynos are equal since both are a doubt whether male or a doubt whether female. However, according to the opinion of the Tur, an androgynos is inferior to a tumtum, for the tumtum is a doubt whether male or a doubt whether female, but the androgynos is a distinct creation. Therefore, the Tur holds that if one left a son and an androgynos, the son inherits everything, whether in many assets or in few assets, because he is not included in the enactment of maintenance. And if one left a daughter and an androgynos in few assets, it is certain that he has nothing, like a tumtum; but even in many assets they only divide equally. And even though in a case like this a tumtum takes three parts according to the opinion of the Tur as I have written, nevertheless, regarding an androgynos, since he is a distinct creation, he divides with her. And if there remained from him only a tumtum and an androgynos in many assets, according to everyone they divide, for in inheritance the hand of both of them is equal. And in few assets, according to the opinion of the Rambam, they are also equal; but according to the opinion of the Tur, it appears to me that the tumtum takes three parts, because he certainly has half, and the other half is a doubt, for if the tumtum is a male, the androgynos takes a half-portion of his inheritance, but if she is a female, she takes everything for maintenance, and therefore they divide the other half. And the doubt of the tumtum is only when he has not yet been torn open, but when he is torn open, it will be clarified whether he is a male or a female [so it appears to me].

According to what has been written, that in every case of a certainty and a doubt, a doubt does not remove a certainty; therefore, if Reuven's son went to a distant land and Reuven died, and it is not known if his son is alive or dead, Reuven's brothers do not descend to the estate of Reuven's property. For we establish his son in the status of being alive, and since he is a certain heir by virtue of the status of being alive that he possesses, the brothers—who are doubtful heirs—do not enter into the inheritance. But if Reuven and his wife went to a distant land and died, and did not leave offspring here, but there is a doubt that perhaps they gave birth there, Reuven's brothers descend to the inheritance. This is because they are in the status of certain heirs, and the child is a doubt as to whether he exists in the world or not; a doubt does not remove a certainty. And this is when it has been clarified that Reuven's wife died first and Reuven inherited her, for if she died after her husband, Reuven's heirs do not inherit her, and her heirs inherit her ketubah [Sma].

A woman who possessed property and had a son, and both were killed suddenly, such as when a house fell upon him and upon his mother, and it is not known who died first; and the heirs of the son, such as his brothers from his father, say the mother died first and the son inherited from her and we inherit from him; and the heirs of the woman, such as her brothers, say the son died first and he does not inherit in the grave from his mother to transmit to brothers from the father, as has been explained in siman 276, and we inherit from our sister; we establish the property in her possession, since until now it stood in her possession, and her heirs inherit from her. For regarding the son, it is a doubt whether he died after her and inherited from her or not, and therefore his heirs who come through his power do not inherit the property, for her heirs are considered as certain and his heirs as a doubt. And even the ketubah and the addition that she collected from her husband are also in her possession, since until her death they were in her possession. And such is the law if a house fell upon him and upon his only daughter who was married, where the husband says the father died first and his daughter inherited from him and I inherit from my wife, and the relatives of the father say the daughter died first; we establish the property in the possession of the heirs of the father, because until now they were held in the hand of the father, and the husband is considered in relation to the heirs of the father as a doubt in relation to a certainty.

If a house fell upon him and upon his daughter’s son who was fit to inherit him—such as if he had only an only daughter and she died and left a son—and there is a doubt whether the grandfather died first and his daughter’s son inherited him and afterwards died and his paternal relatives inherit him, or if he died first and afterwards the grandfather, and the grandfather’s relatives from his family inherit; the Rambam, of blessed memory, ruled that the heirs of the father shall divide with the heirs of the daughter’s son from his father’s side. And even though here too the properties are in the presumptive possession of the grandfather just as they are in the presumptive possession of the mother in the previous section, however, since here even if they are in the possession of the father and his relatives inherit him, they also inherit by way of the "sliding of the inheritance" of the daughter, as it is written: "And if he has no daughter, then you shall give his inheritance to his brothers," and it is as if the daughter bequeaths to them in the grave. And specifically a son does not inherit in the grave the properties of his mother to bequeath them to his family, but all other relatives from the family of the deceased, the distant ones who inherit, it is as if the close heirs who are in the grave bequeath to them. Therefore, ultimately we arrive at the daughter in the grave, that she shall bequeath either to her offspring or to her father’s relatives; they are equal and shall divide. But regarding a son and his mother, when we say the son died first, perforce the inheritance does not go to her relatives by way of the son, for if it went by way of the son it would reach his paternal relatives; rather, it goes from the mother herself to her relatives, and the properties are in her presumptive possession. Nevertheless, there are those who disagree with the Rambam and hold that the properties are in the presumptive possession of the grandfather’s heirs, just as with a son and his mother. [And according to the Rambam there is a difficulty from his married daughter in the previous section, which is similar to this, and perhaps the husband’s inheritance is different or he does not hold of this law].

And such is the law regarding a father and his daughter's son who inherits him, when the father was taken captive and died in captivity and his daughter's son died here, or his daughter's son was taken captive and died in captivity and he died here, and it is not known who died first; for according to the Rambam they divide, and according to those who disagree with him, the relatives of the grandfather inherit the property.

A debtor who has nothing with which to pay his creditors, and a house fell upon the debtor and upon one of his testators, and it is not known if the testator died first and the debtor inherited from him and the creditors shall collect from this, or if the debtor died first and the testator after him and the relatives of the testator inherited—the properties remain in the possession of the heirs and the creditors have nothing. And likewise, if there was a ketubah of his wife upon him, she does not collect her ketubah from this, and we have already explained it at the end of siman 104; see there.

An incident occurred regarding Reuven, his wife, and their four daughters who were in a house, and the house fell upon all of them and they died. The heirs of the wife claimed that since there is a doubt whether perhaps the wife died last, and they would inherit her ketubah, they should divide the ketubah according to the law of doubt and doubt. The heirs of Reuven claim that since if even one of the five souls died after the wife, the heirs of the wife have nothing—for her daughters inherit from her and they inherit from the daughters—and if so, we should follow the majority, for presumably one of the five remained after the death of the wife. And they ruled that they divide and we do not follow the majority, for since all of them were fixed in the house, "everyone who is fixed is considered as half and half," and even regarding monetary matters there is a law of "fixed" as written in siman 292 regarding a deposit. And even if they were not fixed at the time of their death but died upon their exit to the outside, we say "whatever separates, separates from the majority," and four souls from Reuven and his daughters were killed first, and one of the five and the wife remained, who are half and half, and it is a doubt and a doubt and they divide. And if the daughters were married and had money not from their father, and the husbands of the daughters came and requested their portion as they inherit from their wives, they divide the money of the doubt into six parts: four parts for the husbands of the daughters, one part for the heirs of the wife, and one part for the heirs of Reuven [and the difficulty of the Netivot HaMishpat is answered]. And even though the wife of Reuven did not swear regarding her ketubah, nevertheless the ketubah is in her possession, for the reason for the oath is because of bundles of money, and in a sudden death we are not concerned for this [Sma].

There are additional doubts, such as "a doubt and an elder" regarding the property of a yavam and the like, and they have been explained in Even HaEzer siman 163.