Siman 286

One who died without a will [Nimukei Yosef] and left adult and minor sons, or adult and minor daughters who inherit, and the adults require greater expenditure than the minors for clothing, and the minors require greater expenditure than the adults for food and other needs, and to perform a division now is not yet possible due to certain complicated matters involving the estate, and the assets must perforce remain for some time in partnership—we do not say that they shall be sustained and clothed and take all their needs from the common estate, each according to what he needs. Rather, they shall take by account equally, and each one shall clothe and sustain himself from his own portion. And if one is frugal in his expenditure, the remainder shall remain his alone [it is simple that that which is stated in the Mishnah [Bava Batra 139a], "they divide equally," means they divide their expenditures equally, and this is the intent of the Rambam and the Tur, and so wrote the Derishah]:

Some say that this is specifically when they protested against one another, for from the time of the protest they shall take into account, but in an ordinary case they are sustained and supported with one another, for presumably they waive to one another, and it is also good for them so that dispute does not arise between them [Nimukei Yosef]. And some say that even in an ordinary case they shall do everything by account, and one can claim from the other even for the past. And it appears to me that if during their father's lifetime they were not all supported at his table, but rather after his death they conducted their expenses from the estate of the house, even the first opinion admits that everything shall be by account; for specifically when they were all supported at their father's table do we say that in an ordinary case they shall conduct themselves as in the father's lifetime until they divide, but when they were not supported at his table until now, why should we say that they waive to one another? And according to this, it is possible that they do not disagree at all in the law [and the difficulty of the Sma from siman 288 is well-settled]. And when they protested explicitly, there is no difference whether they were supported at his table or were not supported, and whether they are all adults or all minors, or minors and adults [and the proof they brought from the Tosefta chapter 8 for the first opinion requires further study, for from there it appears to be the opposite].

In what case is it said that it must be accounted for? When there is no benefit to the minors in the fact that the adults wear significant garments. Therefore, the eldest of the brothers who conducts business with the assets, and there is benefit to the minors in his being dressed well so that his words will be heard, he may dress from the household estate. Nevertheless, initially he should not squander money on this [Rashbam]. And if they protested against him, the permission is in their hands. And one should not say that according to this, according to the first opinion in section 2, there is no difference between the eldest of the brothers and all of them, for ordinarily with all of them it is considered a waiver and they can protest even against the eldest of the brothers; for nevertheless there is a difference, for with all of them, even if one of them already made a garment, the second may protest as long as the garment has not worn out, but with the eldest of the brothers they may only protest before its making [Nimukei Yosef, first chapter of Bava Kamma] and not afterward, since he acts for the benefit of all of them. Furthermore, according to what I wrote there, the difference is simple: for with all the brothers, when they were not supported at their father's table during his lifetime, even ordinarily it is not considered a waiver, but with the eldest of the brothers, even in such a case it is considered a waiver [and from the Rosh there it is explained not like the Nimukei Yosef, see there].

If the older brothers married women from the household estate after their father's death, the younger ones shall also take according to this amount from the general assets and afterwards they shall divide. And not only the expenditure of the dowry, jewelry, and clothing, but even corresponding to what they ate and drank for the weddings of the older ones, the younger ones shall take. And so it is implied in the Jerusalem Talmud, chapter 8 of Bava Batra. And this is even according to the first opinion in section 2, that ordinarily there is a waiver; nevertheless, it is simple that regarding marriage, even ordinarily there is no waiver. And so it is implied from all the poskim, and the reason is that regarding such a substantial matter, they certainly do not waive. [And according to this, the Jerusalem Talmud is simply understood, that even though regarding eating and drinking without marriage they ordinarily waive, nevertheless, regarding marriage it is not so].

Specifically when the older brothers married after the death of their father, but if they married during their father's lifetime and the father spent much money on them for the needs of the marriage, and the younger brothers said after the death of their father, "We too shall marry from the common estate in the manner that our father spent on you, and afterwards we will divide," we do not listen to them. Rather, what their father gave them, he gave; and what is it to them what the father spent during his lifetime? They only inherit what remained after his death, and in this they shall divide. However, as long as their father had not yet spent, even though he promised to give—for example, one who made a match for his son and fixed a dowry for him, and the father died before he brought him under the chuppah—he does not take the dowry except from his own portion. For he did not acquire this during the father's lifetime, as for what reason would he acquire it? For there is no gift of a shekhiv mera here, nor "it is a mitzvah to fulfill the words of the deceased," since they were not yet placed in the hand of a third party, as I wrote in siman 252. And if it is because of an assessment of the father's intent that he was to give him such and such, who can say to us that it was his father's will that he should take even when he dies from the common estate? Perhaps what he fixed for him was only because he was alive, but after his death he should take from his portion [Sma]. And according to this, if they already placed the dowry with a third party during the father's lifetime, even though he has not yet married, we do not count the dowry as part of his portion; for since he placed it in the hand of a third party, we say it is a mitzvah to fulfill the words of the deceased. And even without this reason, since he already placed it for him, it is as if it came into the hand of the son himself [it appears to me]. And if he promised a dowry to his daughter during his lifetime and died, the heirs must give everything he promised even though he had not yet placed them with a third party during his lifetime. And not only this, but even if he married off the first daughter during his lifetime and died, the heirs must marry off the second in the manner that their father married off the first; for regarding this matter, we estimate the intent of the father, as is written in Even HaEzer siman 113. And specifically when they are not heirs, but if he did not leave sons and the daughters inherit him, she shall take from her portion as long as he did not place them with a third party during his lifetime [and this is the intention of the Mahariv cited in the Sma at the end of subsection 4].

Our teacher, the Rema, wrote: One whose father redeemed him from imprisonment, they deduct it for him afterwards from his portion of the inheritance, and we do not say that his father gave it to him as a gift, but rather he lent it to him, unless there is an assessment of intent that the father gave it to him as a gift. Thus far his words. And even though it has been explained that everything the father gave during his lifetime they are not to deduct from the inheritance, that is regarding what he gave willingly in the manner of the expenses of fathers for sons; but regarding captivity, where he was forced to redeem him, we say that he redeemed him from his portion. See in siman 246 that we follow the assessment of intent, and one should not learn from this law for other matters. And it appears to me that even regarding imprisonment, it is only when he was imprisoned because of his evil deeds, but when he was imprisoned due to a false accusation, certainly it was not the intent of the father to deduct it for him from his portion of the inheritance. And know that all these matters are when he died without a will, but if he made a will, they shall do everything according to his will in all the matters that he commanded.

In the time of the Shas, the custom was that when Reuven married off his son, Shimon would send gifts through one of his sons to gladden the groom, and because of this, when the latter married a woman, Reuven would send back in return, and it was considered among them as a debt, to the point that they said that shoshvinut is collected in beit din. Therefore, if the father married off his son and made a feast for him, and the expense was from the father's property, and shoshvinut was sent to this son during the father's lifetime, when it is necessary to return the shoshvinut at the time of the wedding of the son of the other who sent it to him, it is returned from the general estate, for the debt is upon the father. But if the father did not make the feast during his lifetime from his own property, but rather the son himself spent from his own for the expenses of the feast, the shoshvinut is not returned except from the portion of this son alone, for the debt is not upon the father.

There was another custom among them regarding shoshvinut, that sometimes the father would designate one of the sons, saying to him, "Go and perform shoshvinut for so-and-so," and sometimes he would say to all of them, "One of you shall perform shoshvinut for so-and-so." The practical difference is that if he sent it through one of his sons and designated him, saying to him, "Go and perform shoshvinut for so-and-so," when it returns at the time of his wedding, it returns to him alone. But when he said, "One of you," and this one went and performed it, it returns to all of them like any other loan that their father extended [Tur]. The Rambam and the Shulchan Aruch wrote that if a father sent shoshvinut in the name of one of his sons, when the shoshvinut returns to that son, it is his. But if the father sent it in the name of his sons generally, when it returns, it returns to the middle, and the one to whom it was sent is not obligated to return it until they all rejoice with him [when they all marry wives, he shall send to each one a portion of his shoshvinut], for they are all shoshvinim since it was sent in the name of all of them. Therefore, if he rejoiced with some of them, he returns only the portion of the one with whom he rejoiced, and it goes to the middle. Thus far his words. There are those who disagree with this, for in such a case it belongs to the one who married. The reasoning of the Rambam, of blessed memory, is that perhaps the others will not marry and this person will not be obligated to return their portion to them, yet their father intended to grant merit to all of them since he sent it in the name of all of them; therefore, it goes to the middle [Maggid Mishneh chapter 9]. And in any event, regarding the marriage of the other, when he returns the portion of this one, they will all likewise benefit, and this one suffers no loss in that they all benefit now, for at their weddings he will benefit from them. And if they do not marry, then by law it goes to the middle according to the intention of the father, as has been explained.