Siman 285

A captive who was taken captive and left property, it is incumbent upon the beit din to strive for their improvement so that his property is not lost. They do not have permission to give them to a sharecropper, for since there is no one to supervise him, he will only intend to increase the produce and will not care about the loss to the land. Therefore, if there is someone who wants to be an apotropus over the property to exert effort in them and establish a sharecropper, and he will supervise him so that he works them properly, there is no greater improvement than this, and they should appoint him apotropus. However, this matter is not common, for a person consents to an apotropus-ship for minor orphans and not for adults. Therefore, the beit din is not commanded regarding this to establish an apotropus, because it is difficult to find [Tur]. And there is one who says that even if one consents to be an apotropus, since this obligation is not incumbent upon the beit din, the heir can protest not to appoint him as apotropus [ibid.], for since the heir can himself descend to the property as will be explained, he can say to the beit din: "I will descend to the property according to the details that will be explained." But there are those who disagree on this and hold that the heir cannot protest, for that which will be explained—that we settle a relative fit to inherit him into his property—is due to necessity. Therefore, when a trustworthy man is found whose will is to be an apotropus, why should we settle the relative, for perhaps the captive is alive and this is not his will.

And how do they act regarding the property of the captive? All the movable property shall be deposited in the hand of a trustworthy person by the authority of the beit din. And likewise, if he left standing grain to be harvested, grapes to be gathered, dates to be picked, or olives to be harvested—for all these are like movable property, since there is no great labor involved, many trustworthy people will be found who would agree to this labor. Therefore, the beit din enters into his property and appoints an apotropus for this, and he harvests, gathers, picks, and harvests, and sells the fruit, and places their proceeds with the rest of the movable property in the beit din or in the hand of a trustworthy person by the authority of the beit din. And what they shall do with the lands will be explained in section 3. And if he left promissory notes or house rentals, the beit din shall collect them and place them with the rest of the movable property. And it will further be explained regarding houses and shops what to do:

And regarding lands, they place a relative who is fit to inherit him [into the property], but not so that he should sell them, but rather that he should work the fields and the vineyards and eat their fruits. And if he improves the properties, they appraise for him like a sharecropper, and he takes of the improvement like other sharecroppers. And there is no distinction in this between whether they heard by way of rumor without clear testimony [Tosafot Bava Metzia 38b] that the captive died, and whether they did not hear that he died. Only in this is there a distinction: that when they heard that he died before they placed the relative into his properties, and afterwards the captive arrived alive, he has nothing in the improvement; rather, what he ate, he ate, and what he spent, he spent. This is not the case when they placed him when they had not heard that he died; even when he arrives from his captivity, they appraise for him in the improvement like a sharecropper. And the reason is because when they did not hear that he died, there is a concern that the relative will fear that perhaps today or tomorrow he will arrive and he will diminish the land, and he will only see to increase the fruits and eat them; therefore they said that even when he arrives, he shall take in the improvement like a sharecropper and will not ruin the land. But when they heard regarding him that he died, and he goes down into the land under the premise that it is his, even without this enactment he would not ruin them; therefore, even when it happened that the rumor was false and he arrived alive, he has nothing in the improvement. And his law is like the law of a husband who spent expenditures on the properties of his wife, that what he spent, he spent, and what he ate, he ate, as is written in Even HaEzer siman 88. And if he spent and did not eat, his law is like one who goes down without permission, for they appraise for him: if the improvement is greater than the expenditure, he takes his expenditures, and if the expenditure is greater than the improvement, he takes according to the measure of the improvement, as is written there, and he does not take except with an oath.

And the opinion of the Rambam in chapter 7 of Hilkhot Nachalot is that when they heard concerning him that he died, then even when his heirs descended to his estate and divided it among themselves absolutely, we do not remove it from their hands, whether in lands or in movable property. And even though it was explained in the previous siman that without clear testimony one does not descend to the estate, nevertheless, regarding a captive we depend on the fact that in most instances the rumor is true, for due to the troubles he died. And just as we allow descent to the estate based on matters whose presumption is for death because we follow the majority, as is written there, so too regarding a captive based on a rumor [it appears to me]. And if they did not hear concerning him that he died, we act regarding movable property as has been explained, and regarding lands we allow the one fit to inherit him to descend. And when the captive comes, they shall appraise for him like a sharecropper for all the time that he worked in it [for he explains that which is written there, "and for all of them they appraise like a sharecropper," he means entirely, and like the explanation of Rashi; and that which the Tur wrote in his name requires further study. And from that which is taught there in a baraita, "one who descends to the property of a captive, we do not remove etc.," and Shmuel said "we allow descent," learn from this that the baraita refers to his heir, and so it is explicit in Tosefta Ketubot chapter 8].

But one who went to distant places without the compulsion of captivity or danger and left his property, and it is not known where he went nor what happened to him, we do not settle a relative in his property; and if he did settle, we remove him. And the beit din is not required to attend to him and appoint a guardian for him, neither for land nor for movable property, for he left of his own will. And if he did not concern himself with his property, why should we concern ourselves for him? Nevertheless, we are obligated to remove his relatives from his property and leave them as they were at the time of his departure. And what is the law of his property? All of his movable property shall remain in the possession of the one who held them previously until he comes and claims them, or until it becomes known through complete testimony that he died and the heirs claim them. And so too his lands shall remain in the hand of the one with whom he left them at the time of his departure, and we do not take rent from him, for we are not to attend to it until he comes. And a field or vineyard that had a sharecropper in them shall remain in his hand until he comes. And a field or vineyard that he left fallow shall remain fallow, for we are not commanded to return a deliberate loss, as I wrote in siman 261. However, if property fell to him here that he did not know about, his law is like the property of a captive, for regarding this property he did not reveal his mind, and it is necessary to do with them what is proper to do.

And if they heard regarding him that he died, there are some of our teachers who say that since he left with intention, we are not to innovate anything, just as when they did not hear that he died; and when it becomes known with certainty that he died, the heirs shall descend to the inheritance. And the opinion of the Rambam regarding one who left with intention and they heard that he died is that he is like a captive of whom they did not hear that he died, and the beit din removes all the movable property and places them with a person who is trustworthy according to them, and for the lands, they cause the relative to descend to the fields and the vineyards as a sharecropper until he brings clear proof that he died or until he comes. And his reasoning appears to me to be that even though since he left with intention we do not need to be concerned for him, nevertheless, we must be concerned for the rumor that he died and that the property belongs to the heirs, and we must be concerned for their benefit; and since we do not allow them to descend to the inheritance, we are therefore obligated at least to see that the property is not ruined, and we look into their benefit [and he inferred from the baraita there that regarding a captive, when they heard that he died, we do not remove the property from them even when they descended to the inheritance as I have written, and regarding abandoned property we remove it from their hand in such a case, and it does not inform us of the novelty that we do not even cause them to descend as a sharecropper, but rather hear from it that we do cause them to descend as a sharecropper].

One who flees due to mortal danger has the status of a captive, but one who flees due to debts has the status of one who departed of his own will, for he is not so frantic to flee [Gemara] and did not give instructions upon his departure; we learn from this that it is not pleasing to him that they should innovate anything regarding his property, but rather to leave them as they were at the time of his departure. And if he went of his own will and intended to return but did not return, he is like one who departed not of his own will, for certainly his will is that they should do with his property as is proper to do, and that which he did not give instructions was because he imagined he would return, and that he did not return is presumably because some circumstance befell him, and we must be concerned for his benefit [and with this the Baraita is settled: "One who descends into the property of a captive etc. and these are they: behold, if his father etc. went to a province across the sea," and it is difficult: what kind of captive is this? Rather, this is what it means: that they went for a short time and due to a circumstance they did not return, and their status is like a captive].

A captive concerning whom it was heard that he died, and the relative is in possession of his property, and afterwards it was heard that he is coming and the rumor was false—the Sages, of blessed memory, said [ibid.] that if the relative acted first and plucked and consumed the produce, he is diligent and rewarded, and he has permission to do so, since the beit din placed him in possession of the property and he believes that everything is his since it was heard that he died. The Rambam, of blessed memory, omitted this and it requires further study; perhaps he had a different version, and so it is implied in Tosefta Ketubot chapter 8, see there.

When they seat a relative in the lands, they must seat those who are knowledgeable in agricultural labor. And if there were many who are knowledgeable, they give to each one a small amount of land. And if there were among his relatives those who are agricultural laborers and those who are not agricultural laborers, they place it in the hands of the laborers, for the others would surely ruin the lands.

Specifically regarding lands such as fields and vineyards, we place relatives in possession because they require great exertion and one will not find anyone who would agree to be an apotropus over this. However, houses, courtyards, shops, and inns that are made for rental and do not require labor or exertion, and a person does not give them over for sharecropping, their law is like movables and we do not place an heir in possession of them. Rather, what does the beit din do? They appoint a collector for them who will rent them out, and the rental money shall be placed in the beit din until he comes or until the heir brings clear proof that he died. And we never place a relative in possession except for fields, gardens, and vineyards and the like, so that he shall be in them like a sharecropper so that they do not go to waste and remain fallow. And if the one who departed from here was a minor or a deaf-mute or mentally incompetent, even if he left of his own will, they appoint an apotropus for them over all the assets, even over the lands, for even without this, we appoint an apotropus for these as I wrote in siman 290, and we do not place a relative in possession as will be explained. And that which we said, that we do not place a relative in possession of movables and houses, this means that we do not give the movables into his hand, but he can be an apotropus like another, as I wrote there.

When they seat a relative in the properties of a captive, or one who fled, or one who departed voluntarily of whom it was heard that he died, they do not seat a minor, lest he ruin the properties. And so too, if this captive was a minor, they do not seat a relative in his properties in lands to act as an aris, because there is reason to fear that he will claim and say, "This is my portion that came to me in my inheritance." And regarding another person, we do not fear that he will say, "It is mine," for the minor will say to him later, "Bring proof that it is yours," but regarding a relative, the minor will think he is telling the truth that it came to him in an inheritance [Tosafot ibid.]. And when the captive was an adult, we do not fear this because he can make a protest even from a distant place, but the minor does not have the intellect for this. Therefore, two brothers, one an adult and one a minor, and the minor was captured or fled or departed from here, they do not seat the adult brother in his properties, for perhaps he will seize them and after a time say that this is his portion that came to him in an inheritance. And even the son of the adult they do not seat in the properties of his minor uncle; even though he himself is not an heir to the properties of the minor's father, nevertheless there is reason to fear that he will say, "On account of my father I inherited this portion." But a distant relative they do seat.

One never places a relative in the property of a minor, even if he himself is not a relative to the minor but rather a relative by way of a relative. For example, if he is a relative by way of the minor's maternal brother—where the minor has a brother from his mother and not from his father, and this maternal brother has a brother from his father—one does not place this person. Even though he is distant from the minor himself and is not fit to inherit the minor's benefactor, nevertheless we are concerned lest he say that this portion came by inheritance to my paternal brother who inherited his mother, who was also the mother of the minor, and my brother died and I inherited him. And even though this is an extreme distance, nevertheless the sages were concerned for this. Furthermore, even if there is a deed of partition between them regarding the property, whether in houses or in fields, he shall not enter. And even if he said, "Write a deed of sharecropping against me now," he shall not enter, for perhaps the deeds will be lost and time will pass, and he will claim and say that this came to him as a portion of inheritance, either on his own account or on account of his benefactor. And similarly, one does not place an adult even when the captive is also an adult if there is another minor brother present, because we are concerned lest he die in captivity and the minor who is here will inherit him, and one does not place a relative in the property of a minor [Shach; and that which the Tosafot wrote in Bava Batra 143b, starting with the words "They improved etc.," that the minors are together with the adults etc., this must refer to being at one table as written in section 15, and note this].

And it happened with a certain woman who had three daughters, and the mother and one of the daughters were taken captive, and the mother had properties, and the second daughter died here and left a small son. And the sages said that we do not authorize the remaining daughter to descend into the properties, and even though we authorize a relative to descend into the properties of an adult, it is because we are concerned that perhaps the old woman died in captivity, and it turns out that a third of the properties belong to the minor, and we do not authorize a relative to descend into the properties of a minor. And besides this, we do not appoint a woman as an apotropus, as I wrote in siman 290. And likewise, we do not authorize the minor to descend into a third of the properties, for perhaps the old woman is alive, and we do not authorize a minor to descend into the properties of a captive. And how do they act? The sages said that since it is necessary to establish an apotropus over the portion of the minor according to the concern that perhaps the old woman died and a third of the properties belong to him, or perhaps the captive daughter also died and half the properties belong to the minor, and for this the beit din will find trustworthy people who will agree to be apotropusim since it is for the sake of the minor; therefore, the beit din shall exert effort and find someone who will agree to be an apotropus for all the properties.

And in this case, it occurred afterwards that it became known with certainty that the old woman died, and regarding the captive daughter it was not known whether she is alive or not. The sages said that a third of the properties are handed over to the daughter who is here, for this certainly reaches her as her portion of the inheritance from the mother, even if her sister is alive. And a third is handed over to the minor, which is certainly his portion from the properties of the old woman; and if he is not yet able to manage it himself, they shall appoint a guardian for him. And for the third of the captive daughter, they appoint a guardian because of the portion of the minor, for perhaps the daughter died as well and the minor has half of that third, and automatically they appoint a guardian over the entire third as has been written, and so too in any similar case.

All this that we have said, that one does not settle a relative in the property of a minor, this is specifically when they have already divided the inheritance, or even if they have not yet divided it but they do not rely on one table. And when they have divided it, even if they rely on one table, one does not settle him, because he will say later, "This reached my portion." And when they do not rely on one table, even if they have not divided it, he would be able to say that it is his and that he saved from his expenses. But when they have not divided it and they rely on one table, he can no longer say anything, and everyone knows that they still stand in partnership, and one may settle the relative in the property of the minor. And it appears to me that this is specifically when they are also children of one mother, for if not so, one does not settle him, because he can say later that he inherited this field from his mother. And some say further that this point, that one does not settle a relative in the property of a minor, is when he consumes the produce, for then they will err and think that it is his, and the minor will also think so; but for mere guardianship, it is permitted to settle him, for they will not err in this, and he also will not say that it is his. And likewise, if the property was not from the inheritance of the minor but rather from a gift given to him, or if they bought this field for him from the money of his inheritance, it is permitted to settle the relative even when he consumes the produce, for in this the matter is well-known that it belongs to the minor, and there is no concern lest he seize it for himself. And the consumption of the produce is when he works as a sharecropper in the land, and even though presumably they do not give him all the produce, nevertheless, since he consumes half of the produce, there is a concern [it appears to me].

And so too, that which we do not appoint a relative to the property of a minor is only regarding lands, but for the money and movable property of the minor, we appoint even a relative over them; on the contrary, a relative is even better. And the reason is that even with another person there is a concern regarding money and movable property that perhaps he will hide them or smuggle them and say "the matter never occurred," that they were never handed over to him. And of necessity, we must rely on the trustworthiness of the man and hand them over to him in beit din, and they shall write and sign for evidence. And if so, we can also do this with a relative, and the relative is better as he will exert himself for the benefit of the minor, his relative, so that they produce fruit. Therefore, if there is a relative and a stranger and both are trustworthy men, we appoint the relative; but if the stranger is more trustworthy, we appoint the stranger, and we do not rely on the document that they will make with him, for anything that we have reason to concern ourselves with for the benefit of the minor, we concern ourselves.

A minor who has assets from his mother's father or from another source and his father is alive, the assets are not given into the hand of the father, for a relative is not placed in the assets of a minor; rather, the beit din appoints an apotropus. And if the assets are money or movables and the father is fit to be an apotropus, in that he is a trustworthy man, they are given into his hand in beit din, and the beit din writes and signs that they belong to the minor and were delivered into the hand of the father so that he should be an apotropus over them. And also the father gives his writing with his signature that he received into his hand money or movables of his minor son, and whatever is possible to do to strengthen this, they do [it appears to me]. And there are those who say that minors who have a father, the beit din is not obligated to investigate their assets unless the father is established as one who does not walk in the path of the good, for then the beit din is obligated to appoint an apotropus for their assets. And a minor daughter who has money in the hand of her mother's father and she has a father, it is better that she be with the father, and if the father is a man of assets, they shall also give him her money so that he may trade with it. And all these matters depend on the sight of the eyes of the beit din according to the value of the people, their business, and their trustworthiness. And if there remained brothers who are heirs and among them is a minor, and they are famous for wickedness, the beit din shall not allow the minor to be among them so that they do not destroy him in order to inherit his portion.

A woman who was in captivity and turned away and married a gentile, and she has lands and movable property here, one conducts oneself with her assets according to the law of the assets of a captive [see Sma]. And a traveler who died and left money and movable property in the hand of one of the townspeople, and a known heir from his city is not yet known, one of the great authorities ruled that the beit din removes the money and the movable property and places them in the hand of a trustworthy person; and if the bailee himself is trustworthy, he shall provide security until his heirs arrive. And even though there is one who questioned this and holds that one does not remove them from the hand of the one in whose possession they are, nevertheless the primary ruling is as has been written [Maharam Lublin]. And all the more so regarding itinerant peddlers, when they die in some place and money is found with them, the beit din takes it into their hand and writes to publicize the matter so that heirs will come and take them. However, one who comes to take the inheritance must bring clear proof that he is the heir and to him belongs the inheritance of this one who has departed life.