KMTT - the Torah Podcast
KMTT - The Weekly Mitzva Parshat Pinchas
KMTT - The Weekly Mitzva Parshat Pinchas, by Rav Binyamin Tabory - The Laws of Inheritance
KMTT, kineetzion, teetzeitora, udvarashami, ushalayam, www.kineetzion.org. Having a new week, today is Monday. Today's week is on every Monday, today's shoe will be the shoe in and it is a week in its world, hara viniaminta voi. In Parashat, in Chas, we have the story of the daughters of Slafrad, who asked for their share of an inheritance. Due to that request, teetzeitora veer told us the laws of inheritance and the shear today will deal with the general outlook on the idea of Yerusha inheritance in general. The Seferachinok, mitzvah #tav says there is a mitzvah, it's not just laws of the Torah of Nakhala of Yerusha, but as well, there is a mitzvah. The opinion is that the mitzvah is to adjudicate the cases of Nakhala and it's specifically a mitzvah on the Bezden. Be that as it may, the mitzvah is counted in the Minyanha mitzvahs and the Hinoq explains that I don't want anybody to think that a person is commanded by God to give away all his estate as Yerusha, because God did not want to remove or usurp, take away the property of someone as long as he's alive and somehow restricts him from doing with his property as he wishes. But the Torah simply said, when the person in question dies, then automatically his estate is transferred to his Yerusha. But a person certainly is allowed to give away his estate prior to his death and he could indeed write a, what we call today at Sa'vah, a will, the last will and testament in which he gives his estate, he would have to do it, of course, halachically in the correct way, but he would be able to give away his estate. He would not be allowed to say that somebody else inherits. That in the Torah would be considered matna mashi kato ba torah, a person who constitutes the abrogate's stipulation against the Torah, that would be considered wrong and a person could not do that. But I'm not talking about a person who is changing the laws of Yerusha, he's somehow obviating those laws by saying that I'm going to give my property to someone else. Now it seems fairly obvious that a person can do with his estate whatever he wishes. But there's a Mishnah that we will deal with today, when Babasra dafkutamat give me a little bit of base. The Mishnah there says hakose ikon nahasav lakhayim. If someone writes a document in which he gives away his entire estate to someone else, someone else means not his inheritors, not his Yershin. Vriniyya kazbanath and he left his children, assumedly, penniless. Mashi also, also, it's certainly legally valid. Ela Enuachah hakaraim nakhayimando. That phrase, rah hakaraim nakhayimando seems to be, that hakaraim did not see this with a good approach, some of them are not happy with what they did. In fact, the Rajban says they're angry at him, because he is removing the law, or somehow skirting the law of Yerushah. Now the Ramban in Morin the Volkim, interestingly enough, in the third section, Heligimo, Perik Mambes, the Ramban says that the Torah obviously is interested in the Yerushah, which means that a person should give or not give, but he should allow the laws of the Torah of Yerushah to take place. A person should not refrain from giving the nakhla or from the nakhla being given to the one who Zakhaylo, to the one who has a right to it. Since he's going to die, he should not be jealous of his inheritors, and he should not give away his money, but he should leave it to the person who is the rightful heir to receive it, and whoever that would be, the son, the daughter, the brother, as we know of the laws of Yerushah. And he says the person should not follow his own desires, his own whims, his own loves, and he should follow the list of the Torah. The Ramban then goes on to say, "A person in general should prefer his own relatives over anyone else," and he quotes certain sources for it, and he says Khachamim praised very much, "a person who is close to his family, in fact there is a suggestion that prays worthy that a person should marry his niece." And the Torah said that a person should give stalker to your relatives before anybody give, before anyone else. Now according to this, it seems problematic for a person to have a will in which he unlocks his property, not accordance with the law of the Torah. As I said before, we have to be careful. If a person gives away the property and calls it Yerushah, he says, "So and so will inherit, as opposed to the legal inheritor, that is Massna Amashikasabatara," that's certainly wrong. We're talking in a case where he gives away the property as a matana, as a gift. And we saw that the Mishnah said, "You could for eoretically do it, but in rachacham no hai manu." I'd like to delve into the issue. What is exactly the problem with that? So one could be that his sons should inherit him, and somehow the Torah sees it as proper that the sons should inherit more than anyone else. In the Mishnah, when the Mishnah talked about the case, it says, "Acosaev Le Acherim vinyakazbanav," his own children. And it seems that the problem may be only related to his own children, because maybe there's something special about your child, the Mihiri in his commentary on Bovabastra, says that a person has somehow rights to his father's estate. When he says, "Habbaniim et salniksai aviyim k'aim muhlakimim miyabimiktasam," the sons of the father are somehow in a semi-quasistite state of possession of their father's estate. We have discussed in other Shiyurim that a son is not just an inheritor, like any other inheritor, but a son actually takes the place of his father. The phrase in Aramaic, "Brahkara da'vua," means that the son somehow is almost an extension of the father, whereas if there would be no son, an uncle, or someone else would inherit, we would look for relatives until we say that there's no Jew in the world that doesn't have relatives, because if not for second cousins, third cousins, twenty times removed, we're all somehow going to find out whether they're somewhat related. The Ninevehusha is just who is the closest relative, but everyone in the world could be a possible inheritor of someone else. But a child, a son, is not just an inheritor. A son is an extension of the father, and perhaps we would use this idea of the Mihiri to say that only the only problem is that you took away from your son, but to take away from other relatives might not be the same issue. The Ramban, when he dealt with this, the Ramban that I quoted, said not just children, but all relatives. Why would that be true? So the Hina in that same Mitzvah says if a parent had merited, massing a certain estate, a certain fortune, so that Brakhah was given to him for all eternity. If not for the fact of original sin, he would have kept that estate forever. Since he passes away, it would not be fitting that that gift of God should stop, but it should continue. And then he uses the phrase, "be gufamistal shalmi manu," in the personage, who somehow emanates from him, "shazobinobito." So there I could use what the Mihiri said as well. Somehow this law might only apply to a father and a son, or perhaps a daughter. But then the Hina it goes on to say, "Him buhu ba'avonog yamus buanim loyu yalou." But what happens if a person ba'avonog never, in his sins, does not have children when he dies. So "ru'u ya bhir kazaa sham shaatosh uvala kara vilat," that same Brakhah should extend to any relative. And the Hinaq goes on to say, "Because the merit for which he deserved that Brakhah comes through his family, through his ancestors, and therefore it should continue with them." So it is possible to argue that this law would only apply to father and son, but we have seen that both the Ramba and the Hinaq say it also applies not only to father and son, but to all relatives. Furthermore, we could raise an issue, does this law apply because a person has left the children indigent? Or is it because he interferes with the laws that the Torah meant? The Mishnah again said, "Hakosib es nuhasavlachayim," he wrote, he gave away his estate, he wrote away his estate, he gave it to someone else. The Niyakasbana, he left his children, apparently he left them indigent. Well, indigent may be that they have no money at all. Or it could be that even if they have money, but they don't have money from him, so there are three possibilities, either it's referring to any case or referring to a case where he left them no money at all and they're poor, or in a case where he left them no money at all, even if they're rich. But the Mishnah says, Hinaqasbana, what would happen if he gave away partial? Some of the estate. Now, Benugirsham on that Mishnah says clearly, "The concept is shalom, El Anastham lahime matana," that he left over nothing. If he had left over something, one could then question how much of something is something. But what Benugirsham has said, as long as he left over something, this is not included in the Mishnah. A person somehow would, it would be proper for a person to give away some of his estate, but he can't give away all his estate. In El Anas point of view, I would explain that as long as he gave away some part of his estate to his son, then he did not deviate from the concept of the Torah that the son is a Yuresh. The son has a right to inherit, how much he has to inherit, that it would depend upon different circumstances. But if there is a son and he says he gives away everything and leaves no Yuresh, then he's actually interfering with laws of the Torah. Perhaps that's the reason that the Benugirsham would say, this law may only apply if the father gives away his entire estate, but he gives away a partial estate, perhaps that would be legitimate. On the other hand, the Rejban, in a case later in the Gomera, seems to think, "Ahfidul al-Hairbas le'echadul al-Amayt le'echad." That's the way the Reshash and others understood the Rejban, that even to give away partial estate is wrong. The Torah somehow wanted the estate to go to one person, to the Yuresh, or to the group of Yarshim, but did not want that to be taken away from them at all. So again, we could posit there is a Mahlokas we've shown, and there might be a controversy here if a person gives away a partial estate and not give away his entire estate. The third point that I could raise in this issue is what would happen if a person gave away his money, I'm sorry, did not give away his money, but did not leave it for the children. Part of the problem in our particular case might be that the father or the person about to pass away has favored one person over another. That might lead to all kinds of jealousy and galactic problems which are moral in nature, as people might really argue with each other about this. We know, in Krimish, we found the stories of Yosef, his father seemed to favor him over the other brothers and look what the ramifications of such a story are. So the reason that it might be problematic in our Mishma to give away your estate to someone else is the act of preference for someone else over the children. And if that might be true, then there might be a halakhic distinction. So what happened if the father gave away the money but he did not give it away to his friend, but instead he gave the money to Staka. Now, it would be difficult for a son to become jealous. He might become upset that he wants the money, but the issue of jealousy or favoritism probably would not occur in such a case. He would understand that his father just wanted to give it to Staka. Now, the Ramban in Hilchasnaklos, Parek Vav Halakhalif, explains that all the halakhos of giving away property. And there he says, of course, that a person has the right, as we've pointed out, a person has the right to do so. But the Ramban, summarizing our Mishna, but of course, expressing his own view, he says, if someone gave away his estate, the Niyahayoshim, the Mishna said, as we pointed out, he left his sons. The Ramban said he left all the inheritors. Obviously, the Ramban was the opinion that the problem is not just from sons, the problem is from anyone. The Ramban says, even though he did it for reasons which we'll discuss in a minute, it's not a good idea. Kachamim did not find favor with this idea. And then the Ramban says, mida shasidosi, it would be a proper thing. It's that a person should not deviate from the halakhic concept of Yerushah. And the Ramban then ends the parach by saying that Kachamim had managed us not to choose one son over another, even with a small gesture in order to eliminate jealousy and competition as we found with the brothers of Yersaf. So the Ramban seems to feel that the problem is one of jealousy, a favoritism. If that would be true, maybe a person could give Staka. Maybe he could give away his entire estate to Staka. The Mishna, as I said, said, to give the Niyahseem to someone else. The Ramban also said, hanos in the Hasablachim, what about Staka? On the story of the Ghemera, which we're not going to go into right now, there in Bhagavasthav, Kufalim and Bhagim on my base, it seems this halakha would apply to Staka as well. If we would assume that the problem is we want the laws of the Torah to be followed, then I understand why Staka would be involved as well. If we would assume that the reason for this is not to show favoritism or not to create jealousy, then I don't know why Staka necessarily is involved. Nevertheless, the Shoshanara rules that a person should not give away his estate even to Staka. In the Mishna, there is one more point that I'd like to mention. The Mishna says, if the sons were not behaving accordingly, not behaving properly, so then it's a good idea to avoid the estate. The Ghemera then raised an issue, is this the source of controversy between Tanakama and Mishima Gamaliel? Perhaps Tanakama thinks that in all cases, a person should give away his estate. He does not give away his estate even if the son is not religious, he is not behaving well. But your Mishma Gamaliel disagreed, or perhaps your Mishma Gamaliel is just clarifying what Kramim meant. The Rambam and Shoshanara are both passing, that even if a person is not behaving well, the father should not take away his estate. The Rambam says in Morinavuhim, that, "Athilu Ha'ya also a carer of Bithaklesa Shritus." I'd like to emphasize that phrase, "Athilu Ha'ya also a carer of Bithaklesa Shritus." Then if that relative is the epitome of Shritut, of corruption, it's still necessary that a person should have some sort of pity and mercy on his family. And then the Rambam goes on to a side discussion to show that no matter who they are, a person should treat his relatives with respect. And as it says, "Lotita eva adomiy kiyahihuhu." "Don't despise the Edomite who is your brother." And he goes on to almost go off his main topic of Yerushah to talk about leaving your relatives and abandoning them to their fate. So the Rambam, both in Mishna Tara, and we see his words in Morinavuhim, think they believe that this halacha applies to a person even if he's not religious. A person, the father, the person who has the estate, should allow the laws of the Torah to take place, even the case where Banda of Lonohagim Keshura, where his children are not following his path and not behaving well. But a person could then raise the issue, what does it mean, not no Ha'ya Keshura? And why really should I leave my estate to someone who is not behaving properly? We all remember the Psukiim in Cohelis, those very, very poignant Psukiim, in Parek Bays of Cohelis, where Shlomo Hamalah lamented, "Sanitya niyyat kalamali, I despise my efforts, Shania Melta khattachamich, which I work in this world under the sun, Shania Henuladam shiyaha'i, that I should leave it for a person who comes after me. Mi'yataya hecha hamiyyat o sakhal, do I know who will get this estate eventually? Will he be wise, will he be the opposite of wise? Ula'dam shilomo amalbohit nannu hakha khaoko, I worked so hard, a person who worked so hard with all his intelligence, with all his effort, and a person shilomo amalboh, a person who did not have the same effort. He did not invest any effort into this endeavor, yet nannu hakha khaoko, come to me this is a type of foolishness that a person should inherit. The Ramam and the Hinoq tried to explain why it's true, because they felt what a person has, perhaps goes to his children, not just to his children as we saw in the Mi'yi, but to his family, it's a mere merit that he received it. And even if they're not religious, well if we were to say that the reason for this is because the Torah insisted upon laws of nahhala, the laws of inheritance, okay, I can understand that this would be true, even the case where the child does not follow the father's footsteps. But, we find something interesting in the Rajbam, and others we show him as well. They say the reason that you should not ignore your relative, even if he's holekh Baderik Lotova, is because it's true that he is not going in a proper way. But let's say a person has a son who doesn't act properly, but maybe his grandson will be properly. We know of many cases where people do chuva, so in the future, why should you take away the nahhala from the family when indeed they might do chuva? This is much different than what I said in the Ramam. According to the Ramam in Morin the Vohim, it seems that you should not take away your nahhala from anyone, because the Torah told you to give it to your relatives. Whereas according to the Hrinoch, really to the Ramam, to the Rajbam, really you could take away your nahhala from people who are not deserving of receiving the nahhala. But the question is who is not deserving? This particular person might not be deserving, but his child will be deserving. Amasha Feinstein followed the opinion of the Hrinoch, of the Rajbam, but he went to a greater degree than seems to be implied by the Rajbam in what seems to be his own hiddish. The question was, in general, people who wanted to write wills where they would change the laws of, now you said before, not change the laws of the Torah, but somehow not be within the borders of the Torah, he would give away his estate. So the question that Ramash, one of the questions that what is discussed, what happens if a son does not know he kashura, not behave properly. Now he says, what does that mean? That's referring to someone who believes in God, who educates his children to keep mitzvahs. So therefore, in such a case, we say, well, maybe he behaved poorly toward his father, toward the person who is allotting the estate, and maybe that person has an claim against him. But in that particular case, it very well could be that he could have wonderful children. Even if he's a very great sinner, bin adamla havero, or, but he is careful of mitzvahs bin adamla maqam, a person might be, well, we would consider a really despicable type of person, but you can see that in certain areas he tries to observe Torah mitzvahs. He says, maybe, you know, he'll educate his children properly, and they'll follow the ways of Torah mitzvahs. But then Ramash says, a person who is mahal shabbis paphrasya, a person who totally disregards shabbis, a person who disregards laws of the Torah, who does not send his children for Jewish education. So that much of this is in such a case, we do not have to anticipate the fact that maybe his children will become religious. Although it is true that there's always a possibility, lo yidah, menonidah, we're not going to give up hope on anybody, but nevertheless, the probability is that his children will not be religious. And Masha says, in such a case, you can follow the majority, the rule of majority, you can follow the oath, and you do not have to leave your estate to a person who is a muma. And therefore, he says, in such a case, everybody would agree with you. Shammugam lea said, the person is allowed to give away his estate to, in a case where the person does not behave properly, maybe hakhamim disagree, maybe we pass in like hakhamim. Nevertheless, Ramash argued in a case where the person certainly does not follow the ways of Torah. And there's no hope, at least in a logical sense, to think that his children will become better people, will become more imbued with this spirit of Torah and mitzvahs, in such a case where Masha thought it would be a mitzvah to give away the money, and not give the money to inherit to the people who inherit who do not follow the ways of the Torah at all. This issue, of course, has probably been dealt with in many, many cases of Jewish law. The issue is that I think it's very common for people today to write in their will, and what we call it saver, a person would write that he wants to give some of his money for it's stalker. I think that many institutions even try to work toward that structure, they speak to a person about giving their money in their will. Now, how would this fit in with our mishna? Is it permissible, or is this really against our mishna, and it would be a case of Enuachacham Nachimmanu? Of course, this question that I've suggested depends completely upon all the hakiros, all the questions that we raised in the beginning of the shi'ur. Is it only in the case of children, is in the case of other relatives as well? Is it a case where I give away everything to, and ignore my children or my family completely? And the third question, does this apply to the stalker as well? Although we answered all those questions that at least according to some opinions in the affirmative, namely it applies to all Yarshim, as the random said, secondly, it's even if you give away part of the estate, like the Reishbaum said, and thirdly, it's even if you give stalker, as we saw is the sense of the gimara, we, I didn't quote the gimara, but it does seem to be from the gimara on that page, and the shi'ur, nevertheless, this was the prevailing custom, and it seems to be the prevailing custom. The Khasamsau Farin, in his Chuvas of Roshan Mishpat, has a serious discussion of this issue, and this Khasamsau Farin is quoted very carefully in the Pisschit Shuvah, in Chuchanar, Hoshan Mishpat, Sim and Reishpay Base. In Sim and Reishpay Base is the sim and way he talks about this law of not giving away the nahasim, and the Khasamsau Farin basically says, although the Sugya is problematic and our issues therefore seem problematic, the meaning somehow is to give away stalker, and he adds one more point that I'd like to, with which I'd like to conclude. He said, when the person gives stalker, he's actually doing it for himself. A lot depends, perhaps upon the motivation of the person, when he takes away the nakhala, who was part of the nakhala, or the entire nakhala, from the laws of Yayusha. In some cases, it's done to favor one person over another. In some, it's some sort of an expression of what we saw that Shlomo explained in Kurela as a person who has entered the fact that the Torah told him that his inheritor, that who will inherit his money, but the motive might be something completely different. The motive might not be out of hate, out of spite, out of creating some sort of conflict, but it might be simply an altruistic purpose of giving stalker, and even that altruism might not be completely altruistic. A person gives stalker because he's worried. He wants to make sure that he's Vohala Olamaba. He wants to make sure he merits the world to come. We know that stalker taught Sonimavas. We know that stalker is some sort of protection against death. Stalker is a protection for people who are afraid of their fate in the afterlife as well. And therefore, when a person gives stalker, it seems that he's actually keeping the money for himself after death. The American expression, the English expression, you can't take it with you is certainly true, but the idea of attaining a zhuz for yourself, that some zhuz you'll have by giving stalker may be true by giving stalker, even though it's after your death. Therefore, the Khasam's self-air uses this as well as other arguments to explain that the custom that we have today of writing a zhava in which we allot our estate and suggest certain stalker or note that certain stalker should be given is within parameters. That's why, in the context of Jewish law, although in general, we saw Enu Akhacham-Nohaymanu. The Torah wants the Ywushah to be given exactly the way it is, but nevertheless, to give away partial stalker, the Khasam's self-air says it's certainly permitted, and Ramosha's chuva, that same chuva that we quoted before in Hoshamishbud, Helik-Bai-Samanun, discusses that question if a person is allowed to give away the money to stalker, and Ramosha also explains that as long as you're not giving the entire estate to stalker, there's certainly no problem with Valve, Pukhazimamad-Dvar, this is the custom of the Jewish people. [BLANK_AUDIO]