Siman 284

It has already been explained in siman 280 that all heirs inherit based on a presumption where witnesses testified that he was presumed to be that specific person who is fit to inherit this deceased, even if they do not know the truth of his lineage. And whoever is presumed to be a relative of the deceased, and we do not know of a closer relative than him, behold, he inherits him. We do not fear that perhaps there is a closer relative than him as long as it is not known, for if we were to fear this, there would be no end to the matter. If Reuven says that he is a closer relative and Shimon says that he is a closer relative and it is impossible to clarify, we say "whoever is stronger prevails" [Rashbam 33a]. If afterwards the one who prevailed and seized the property admitted that the second is a closer relative, or if witnesses came and testified so, we remove it from the one who seized it and hand it over to the second, and all the fruits he consumed until now he returns to him [ibid.]. Even if there are no witnesses regarding the consumption of the fruits but he admitted it himself, he is obligated to pay and is not exempt by a migo that had he wanted he could have said "I did not eat," for ultimately he admitted that the second is a closer relative, and all the more so when there are witnesses [as is understood from Tosafot ibid.]. Furthermore, even if this one brought witnesses that he is a relative and the second did not bring witnesses and claims that he is a closer relative, we remove it from this one and hand it over to the one who brought witnesses. Even if the witnesses did not testify that he is a closer relative than the second, but rather that they do not know if the second is a relative or not, since in any case this one has witnesses and this one has no witnesses, we establish it in the hand of the one who brings witnesses [ibid.]. And also the fruits we remove from his hand, even if his consumption is not known except by his own word, we do not say a migo that had he wanted he could have said "I did not eat," since the field must necessarily leave his possession, for the field has no migo, necessarily the fruits follow the field [ibid.]. And if afterwards other witnesses come and testify that the second is a closer relative, they then remove it from this one and give it to the second.

The heirs do not descend to the estate of the deceased until they bring proof that their benefactor died, and the proof is that two witnesses testify that he died. However, based on one witness, we do not allow a relative to descend to the inheritance. And similarly, if they heard a report that he died and there is no clear testimony in the matter, or if gentiles came speaking in their innocence that so-and-so died, we do not allow the relatives to descend to the estate based on them. And all the more so that based on relatives or those disqualified from testifying who testified that he died, we do not allow the relatives to descend to the estate based on them until two valid witnesses testify.

And how shall they testify? It is not only necessary if they testify that they saw that he died and was buried, but even if they testify regarding matters where the majority lead to death and are closer to death than to life—for example, if they testified that he drowned in water that has no end and his memory was lost—behold, the heirs descend to the estate based on their words. And likewise, if they testified that he fell into a pit of lions and leopards, or that he saw him crucified, even if crucified by his hands, provided that a bird is eating from him; or that he was stabbed in war and died, or was killed and they did not recognize his face but he had intermediate signs, as was explained in siman 267, for regarding monetary matters they are considered definitive signs as I wrote there, and the signs were on his body; or they recognized his garments through signs of a lost object; or they left him in a state of goses—in all these matters and their like, if his memory was subsequently lost, the relatives descend to his estate based on such testimony.

And do not wonder at this which we have said, that regarding testimony such as this where the majority of cases lead to death, we settle the relatives into the inheritance, yet regarding the essence of the testimony we require two kosher witnesses, while regarding the release of an agunah it is the exact opposite of this, for we rely on one witness, and even a relative, and even the woman herself, and even a gentile speaking peripherally; but regarding the matter of his death, we require that they say he died and was buried, and if even two kosher witnesses testified that he fell into water that has no end, or they saw him crucified, or in the throes of death, or killed in war, or they identified all his garments with distinct signs, we do not permit his wife to marry, as is written in Even HaEzer siman 17. For such is the essence of the matter: regarding the prohibition of a married woman, the Sages were stringent in every type of testimony until there is a certain death, but regarding the matter of money, they established it according to the law, that as soon as they testified to matters whose presumption is death and his memory is lost, the money then stands in the presumption of the heirs, and two kosher witnesses are required by law. And this that they were lenient regarding agunah in the quantity and quality of the witnesses, the Sages said it is because the woman herself will be precise in investigating whether he died or not and will not rely on the witness, for the Sages were stringent upon her that if it is found that he is not dead and she marries another, she must leave this one and that one without a ketubah and without sustenance, and the children are mamzerim. Therefore, out of the stringency that they were stringent upon her at her end, they were lenient with her at her beginning, for a woman is precise and then marries, as as long as she does not know clearly that he died, she will not marry another and will not rely on the witness or the relative or the gentile speaking peripherally. But regarding the death itself she will not be precise, for she reasons to herself that since he fell into water or into a pit of lions or was hung by his hand, he certainly died; but regarding the witness she will be precise, lest he is speaking a lie. And so the Sages said [Bekhorot 46b] that regarding the end of the testimony—meaning, that it was clarified through this testimony that he certainly died, only through whom is the testimony—the Rabbis were lenient; but regarding the beginning of the testimony, where the death was not clarified as absolutely certain, the Rabbis were stringent. And why were they lenient at the end of the testimony and relied on her precision? Because of the concern of agunah, for if we were to require two kosher witnesses, perhaps there were no kosher witnesses at the time of his death and burial, and she would remain an agunah forever. [And see what I wrote in Even HaEzer siman 17, section 27].

And even though regarding a married woman there is also a law of monetary matters, for when we permit her to marry she takes her ketubah, and how can we extract money not based on two witnesses? There, this is the reason: that the husband himself obligated himself to this when he married her, for so it is written in the document of her ketubah, "when you marry another, you shall take what is written for you," and similar formulations to these. Consequently, since she was permitted to marry, she takes her ketubah. Therefore, even when the woman herself testifies that her husband died, she takes her ketubah if she did not request the ketubah but rather permission to marry, as is explained in Even HaEzer there. And likewise, if she said her husband died and she underwent yibbum, behold, her yavam enters into the inheritance of his brother based on her word, as it is said, "he shall succeed in the name of his dead brother," and behold, he has succeeded. And it is a decree of the Torah that when he performs yibbum with his wife, he inherits the portion of his dead brother. And since she is permitted to undergo yibbum, consequently the yavam takes his money. But in other types of inheritances, two valid witnesses are required. And likewise, there is also the reverse: that even when the heirs descend to the estate, his wife does not take her ketubah since she was not permitted to marry. And it is all for the reason that has been explained, for so it was stipulated between them at the time of the marriage.

This is the wording of the Rambam in chapter 7 of Nahalot: In all these matters and their like, if his memory was subsequently lost, they descend to the inheritance based on this testimony even though they do not permit his wife to marry, for I say that they were only stringent in these matters because of the prohibition of karet; but regarding matters of money, if the witnesses testified to matters whose presumption is for death, and they testified that they saw those things and his memory was lost, and afterwards it was heard that he died, behold these inherit based on their word, and like this act they do today in all beit dins, and we have not heard anyone who disagrees with this. Thus far his words. And it is implied from his words that in all these matters they do not descend to the inheritance unless his memory was lost and also afterwards it was heard that he died, and without it being heard that he died they do not descend to the inheritance [Bach]. But our teacher, the Beit Yosef, wrote that it is not exactly so, and some have written that this is the explanation: that if they testify about matters whose presumption is for death and they also say that afterwards his memory was lost, or they testify that it was heard afterwards that he died, it is effective, and we do not require that we ourselves know of this [Taz]. And some have written that he mentioned it as a greater novelty, that even though the rumor spread after they testified, and I would have said that because of the testimony the rumor spread, nevertheless it is effective, and all the more so if the rumor went out beforehand [Sma]. But the essence of the matter is perplexing: for why do we need the rumor at all, and why do we need them to testify that his memory was lost, since they testified to matters whose presumption is for death, like the words of our teacher, the Beit Yosef.

And it appears to me regarding his intention that certainly it is so, that when they testify about such matters, the heirs are permitted to descend to his estate; however, nevertheless, the beit din delays the matter until his memory is lost, and through his memory being lost, a rumor spreads that he died. And there is a great reason for this matter, for although most of these cases lead to death, we do not follow the majority in matters of money to remove it from the possession of the one currently holding it, and how can we remove it from the possession of this decedent for the heirs? However, the truth is that in these matters, the vast majority lead to death, and the minority is a minority that is not common at all, and with such a majority, even in matters of money, we certainly must follow it. And nevertheless, who can set a limit in this, for perhaps it is among the matters where the majority lead to death and a minority lead to life? Therefore, they were accustomed to delay slightly, such that they do not descend to the estate until his memory is lost and the rumor spreads, and they join the rumor to the majority, and then they allow them to descend to the estate. But if witnesses testified that he died a certain death, they allow the heirs to descend to the estate immediately. And so it appears primary for the law. And the measure of "until his memory is lost" appears to be twelve months, as it is written: "I am forgotten as a dead man from the heart." And regarding an agunah, all of this is of no use, even if his memory was lost and the rumor spread.