Siman 287

One who died without a will and left adult and minor sons, and the adults improved the property, all the improvement belongs to everyone, and they do not even take the wage for their labor. And even though regarding other partners, when one is occupied with the work he takes his wage as one who descends with permission, as has been explained in siman 178, nevertheless, brothers normally waive their exertion to one another, and we say that this one who now sues is retracting his initial intent. And the law is the same when they are all adults, and it is an a fortiori argument from minors; for regarding adults they certainly waive to one another because today he worked and tomorrow the other will work, which is not the case with minors. And since he waives to minors, all the more so regarding adults [the Rosh, chapter 9 of Bava Batra, siman 9]. And although there is one who says that when they are all adults the one occupied with the work always takes as a sharecropper [Nimukei Yosef, chapter 3 of Bava Metzia in the name of the Ra'avad], nevertheless, most of the poskim agreed with the first opinion.

And this, that the improvement belongs to everyone, in what case is it said? When the assets improved by virtue of the assets, meaning they did not spend anything from their pockets and also did not work with their bodies, but rather they hired workers from the money of the estate or they traded in merchandise from the estate. And even though they exerted effort in hiring the workers and in selling the merchandise, nevertheless, since there is no loss of pocket here and also no actual work with his body but merely exertion, and for their own share they would also have needed to exert themselves in this, brothers forgive one another. But if they improved the assets by spending expenses from their pockets or by exerting themselves with their bodies to dig and to build and the like, the improvement is for themselves. And if it was money of inheritance and he spent from his own, he takes from the share of the others like a sharecropper [Netivot HaMishpat]. And to sit in the shop all day, it appears that it is like improvement by virtue of exertion, for this is like actual work [Beit Yosef]. And if the minors were also able to sit in the shop and sell, it is like by virtue of the assets [ibid.]. And everything is according to the matter, for if they improved it in a thing that if they had informed the minors, they also would have been able to do, such as to guard and the like, the improvement is for everyone, even though they exerted themselves with their bodies, since they did not inform them first. And all the more so when everyone is an adult. And some say further that even if the minors are infants and sucklings who are unable to do anything, nevertheless, since it is light work that minors in general are able to do, it is not considered work and they forgive one another, and the improvement is for everyone [Nimukei Yosef].

And all this is when they were silent and said nothing; but if they said before a beit din or before witnesses, "See what our father left us; behold, we are working and consuming the improvement for ourselves," all the improvement that they improved in all the properties—even in the portion of the brothers, and even improvement resulting from the properties—behold, it belongs to themselves. And even though a typical partner only has a share in the improvement like a sharecropper, nevertheless here, where they themselves did not create the partnership and did not partner initially with the intent to profit, since they said "we shall work for ourselves" and these brothers remained silent, they certainly waive it to them, and they shall take all the improvement [Tur]. And even if they did not say it in their presence, "your friend has a friend" [Sma]. Our teacher, the Rema, wrote that if the brothers are all adults, he does not need to say it before a beit din, only before witnesses; but if there are minor orphans among them, he must say it specifically before a beit din, for the beit din is the father of minor orphans, and perhaps they will be concerned for their benefit and appoint a sharecropper over their portion to improve it. However, if they were not concerned for this, they shall take all the improvement as has been written.

And so too, if the wife of the deceased himself was also an heir to his property, such as Reuven who married the daughter of Shimon his brother, and Shimon had only daughters, and Reuven has no offspring, and the daughters of Shimon inherit him, and it turns out his wife inherits among her sisters; if she improved the property, she also has all the laws that have been explained. For if she said, "See what my husband left me; I will improve it and take it for myself," all the improvement is hers. And if she did not say so, then the improvement that comes from the property belongs to all of them, and the improvement that comes from physical exertion or expenditure from her own money belongs to her alone. And we do not say that since it is not the way of a woman to exert herself, even though she did not say "I will do it for myself," it is as if she said it; rather, since she did not say it, she waived it. And there is no difference between a son among the sons, or a daughter among the daughters, or a granddaughter among the sons, or the wife of the deceased when he commanded that she should take like one of the sons; in all of them the law is as we have written. See there in Even HaEzer siman 95.

The opinion of the Rambam, of blessed memory, in all of this is that even if he said, "See what our father left us; behold, I am working and consuming," the improvement of the one who improves is only regarding improvement that results from expenditure from his pocket or that he labored with his body. However, the improvement of assets that results from the assets themselves, the improvement belongs to all of them, even when he spoke. And without speaking, even regarding improvement that results from labor with his body or from expenditure from his pocket, it belongs to all of them, and he shall take his expenditures, but the profit he waived to all of them. The Rambam had a different version of the text in the Gemara and he is a lone opinion in this, and all the poskim wrote as I wrote previously [Beit Yosef]. He further wrote that when brothers have not yet divided the inheritance and they all use together what their father left them, they are like partners in every matter. And so too other heirs are partners in the assets of their benefactor, and whenever one of them transacted with this money, the profit belongs to all of them. There is no distinction whether the heirs were males or females, or males and females, whether adults or minors, or adults and minors.

Even though we have said that if one of the brothers engaged in trade, the profit belongs to all of them, nevertheless, the Rambam, the Tur, and the Shulchan Aruch wrote that if one of the brothers took money from the estate and engaged in commerce with it, if he was a great Talmid Chacham who does not leave his Torah for a single moment for matters of vanity, the profit is his, for such a person does not leave his Torah and involve himself for the sake of his brothers, and we are witnesses that he acted for himself; therefore, what he profited belongs to him alone. And some say that in this time the law of a Talmid Chacham does not apply to this, and there are those who disagree, and so it appears, and everything is according to the assessment of the beit din. And the same applies to any labor he performs with the property, it is for himself [Sma]:

All the matters that have been explained apply only to brothers who are sustained together from the collective inheritance, but if they are not sustained together, even if he improved it through expenditures from his own pocket and the toil of his body, he only takes as any other who descends without permission, which will be explained in siman 375. For it was already explained in siman 285 that one does not place a relative in the property of a minor, and even when they are all adults, their law is not like partners unless they are sustained together. But when they are not sustained together, their law is not like partners, but rather like one who descends into the field of his fellow without permission. However, from the language of the Rambam that we brought in section 5, it appears to me that as long as they have not divided, their law is always like partners, and therefore this law applies only to adults and minors [and it requires further study as a matter of law, for the source of the law is from the Ra'avad brought by the Tur, and he holds that these laws apply only to minors, as the Nimukei Yosef wrote in his name in the third chapter of Bava Metzia; but the Tur and the Rema, who wrote without qualification, imply that they spoke regarding every case, and from the Gra, subsection 10, it also implies that there is no distinction; see the Netivot HaMishpat].

Our teacher, the Rema, wrote: If one of the brothers had many sons and the properties increased in value, he cannot say, "Give me what my sons earned," for since he placed them there without specification, presumably he placed them in his stead, and whatever they increased is as if he increased it without specification and he waived it to everyone [Sma]. And likewise, the others cannot say, "Give us what your sons consumed," but rather everything is from the middle. Thus far his words. And this is according to the first opinion in the previous siman, section 2, that as long as they did not protest, they are all sustained from the common estate [and according to what I wrote there, this law is well-settled in every case]. And see what I wrote in section 11.

One of the brothers who gave a gift to others from the estate, and the brothers saw or knew of this and were silent and did not protest, it is considered a waiver. And regarding anything that one of the brothers did with the estate and the others knew and were silent and did not protest, they have no claim in this matter; for if it were not pleasing to them, they should have protested against him immediately, and since they were silent at the time of the act, they have no claim afterwards. And if something was stolen from the brothers from one of them, or was lost, or was taken by force from his hand, he is exempt, for it is "safekeeping with the owners," as all the brothers are with him in his work, and "safekeeping with the owners" is exempt, as written in siman 291 and 346 [Sma]:

One who inherited from his father and improved the properties, and planted and built, and afterwards it became known that he has brothers in another country—if they are minors, the improvement is split, and if they were adults, since it was not known that he had brothers, we appraise for him like a sharecropper. And the reason is that regarding adults, if he had known he had a brother and had come to beit din, they would have placed him in his properties as is written in siman 285; therefore, we consider him even now as one who descended with permission and he takes like a sharecropper from the portion of the second brother. And even though there, when they heard when he died and he came afterwards, he takes nothing, this is because he descended with that intent since he knew of this; but here, where he did not know of him at all, the law is that he should take like a sharecropper. However, regarding a minor, if he had known of him and had come to beit din, they would not have placed him, as is written there, for we do not place a relative in the properties of a minor; therefore, he takes nothing from his portion at all and it all belongs to the partnership [Sma and Taz]. And even though in section 7 it was explained that when they are not supported together his law is like one who descended without permission and his hand is at the bottom, it is different there because he knew of him and should have informed him, which is not the case here. And similarly, one who descended to the properties of a minor brother whom he knew of and improved, even from his own pocket along with the toil of his body, we do not appraise for him like a sharecropper, but rather the improvement is split, for he did not descend with permission.

It was taught in the Tosefta [Chapter 10 of Bava Batra]: Brothers whose father left them property, and one of them has children, and the children of this one arose and improved the property and brought them to the common storehouse—he may not say to them, "Give me that which my children improved the property," and likewise they may not say to him, "Give us that which your children ate." Rather, what they ate, they ate from the middle, and what they improved, they improved for the middle. Thus far his words. And this is as I wrote in section 8, and it must be said that they improved it without expenditure from their pocket and also without the exertion of their bodies in labor.

It is stated in the Yerushalmi, chapter 9 of Bava Batra [halacha 3]: Ordinary brothers are partners until three generations. Thus far his words. And there are those who explained that this refers to the Tosefta that we brought, that after three generations they are considered like strangers, for their kinship has already become distant, as it is written: "If you deal falsely with me, or with my son, or with my grandson," and these may claim their improvement and those may claim their sustenance from them; and specifically when their grandfather is alive, but when the fathers have died and the properties remained shared among the sons, even for however many generations, everything is divided equally [Ra'avad in Temim De'im siman 58]. And some say that even when the fathers are not living, for the ordinary matter is such, that until three generations everything is divided equally, and after this they are like strangers and shall make an accounting [Ramban in his Novellae to Bava Batra]. And if they made a partnership explicitly, even for many generations, it is divided equally as long as all the partners have not nullified the partnership.