Siman 288

Brothers who come to divide [the estate] appraise the clothes upon them which they bought from the collective household property and have not yet worn out, and they appraise them according to their value now at the time of division. And if they wore out completely or were lost, they do not deduct from their portion, for from the beginning they waived to one another so as not to be fastidious with each other regarding these matters. In what case does this apply? When they bought them without specification; but at the outset, they may protest against one another so that no one among them shall buy from the collective household property unless he accounts for it from his portion. However, the clothes upon their sons and daughters which they made from the collective household property are not appraised, for we are witnesses that they waived to one another because they are ashamed to bring them to beit din and to appraise the clothes upon them. Therefore, specifically weekday clothes are not appraised, but Sabbath and festival clothes are appraised, for they can bring the clothes to beit din since they do not wear the clothes on weekdays. But regarding what is upon themselves, even weekday clothes are appraised, for it is their way to come to beit din. And some say that the eldest of the brothers, they do not appraise what is upon him at all, for it is pleasing to them that he should wear fine clothes so that his words will be heard; and since they did not protest against him, presumably their intention was such, that they would not appraise what is upon him. But Sabbath and festival clothes, it appears to me that they appraise his as well.

All that has been explained is according to the first opinion in siman 286, section 2, that ordinarily, as long as they did not protest, they are all supported from the estate of the house. However, according to the latter opinion there, there is no place for these matters. Nevertheless, according to what we explained there, that when they relied upon his table during the father's lifetime even this opinion admits, these laws are well-settled in a case where they relied upon his table during the father's lifetime. And some say that specifically regarding the adults and minors mentioned there, where the minors require more sustenance and the adults require more clothing, in such a case even ordinarily there is meticulousness; but here, where they are all adults, as long as they did not protest, their intention was presumably not to be meticulous unless they protested explicitly. Therefore, ordinarily they shall act at the time of the division as has been explained [Sma ibid.].

Do not err by saying, according to what has been explained—that ordinarily brothers are not meticulous with one another as long as they have not divided—that if one of the brothers purchased for himself or for his wife and children expensive items, or silver and gold and jewelry, and the brothers did not protest against him, that this should be considered part of the estate, and if they were stolen or lost or ruined at the time of the division, they would not deduct it from his portion. For the matter is not so; for what was explained is only regarding eating and drinking and necessary clothing. But what one desires to indulge himself and his wife and his offspring with expensive things, this, even ordinarily, shall be deducted from his portion. And so it is implied from the language of the Tur, see there. And it is a simple matter that all these things apply when the father or the decedent did not make a will regarding how they should conduct themselves; but if he made a will, they shall act according to his will.

One who commanded at the time of his death that they should give to his daughter or to another a palm tree or a field from his property, and the brothers divided the estate and did not give them anything, the division is void. They must first give what their testator commanded to give, and afterward they return and divide anew. And if one wishes to uphold the division and give from his own to the one whom the testator commanded, and his fellow shall give him money, the authority is in his hand, and he can compel them all and say to them: "Either you give a palm tree and I will give my portion in money, or I will give and you give me your portions in money." And this is specifically regarding an unspecified palm tree, but if he said to give a specific palm tree, they cannot remove him except with that palm tree. However, if the recipient is appeased with another palm tree, one of them can give it to him and receive money from them, as has been written [150, end of Ketubot]. And the same law applies to anything similar to this. And it is not similar to what was written in siman 174, section 12, regarding two brothers who divided and a third brother came, where the division is void even if the third is willing to take without a lottery, for each of the two can void the division; for it is different there, as the essence of the division was in error, for they needed to divide into three portions and they divided into two portions. And so too a creditor who took the portion of one of them, as was explained there, for it turns out that this one took no portion at all. But here there was no error in the division, rather only that they did not fulfill the command; and since they fulfill it now, or the recipient is appeased with something else, there is no reason to void the division. And for this reason, it is also not similar to what was written at the end of siman 227 regarding an error of the judges. And it appears to me that such is the law when he commanded to give money or movable property to so-and-so, its law is like with lands [as mentioned above; and all that they questioned regarding this is well-settled, see the commentators, and examine closely].