The commandment of the laws of inheritance: That we were commanded with the laws of inheritances; that is, that it is a commandment upon us to act and rule in the matter of inheritance, as the Torah ruled about it, as it is stated (Numbers 27:8-9), “If a man dies and has no son, you shall pass his inheritance to his daughter. And if he has no daughter, etc.” And the end of the section [is], “and this shall be for the Children of Israel as an eternal statute, as the Lord commanded Moshe.” But do not think that its stating in this that in the matter of inheritance we act as the Torah ruled about it, means to say that a man is commanded by God to give what he has to his heirs in all cases; as God, blessed be He, did not wish to extract the properties of a person from his control, for the sake of his heir, that he should not do all of his desire [with them], so long as his soul is in him, as [is the view] of the wise men of the nations. Rather, it informs us that the right of the heirs is entwined with the property of their [progenitor]. And [so] when the [ownership] of the bequeather elapses with his death, the right of the heirs immediately rests upon them; like the matter of procreation that the Creator, blessed be He, wanted without interruption. Our Rabbis, may their memory be blessed, designated this right of assertion of the heir in the properties of his bequeather, with the expression, “touching,” as in the expression in their statement in many places (e.g. Bava Batra 115b), “Inheritance touches and continues.” [This] means that the right of the heir upon the bequeather is like two bodies clinging to each other, such that what comes out from one, rests upon the other.
And because of this, they, may their memory be blessed, said (Bava Batra 126b) that if the bequeather commanded and said, “My son shall not inherit me,” or “My son x shall not inherit with his brothers” or “My daughter x shall inherit me,” when he has a son, or similar to these words; his words have no force, as he does not have the power to uproot the word of God, Who said that the heir inherits the bequeather. And even though we said that his properties are in his hands for all of his desires, the matter is to say that he may give them to whom he wants and to do whatever is his desire — and even to destroy his property — with any expression, except for that of inheritance; as this statement is against the statement of the Omnipresent and His decree. As He stated that the heir inherits, and hence a person has no power to say [that] he shall not inherit. And this is [the meaning] of our teaching in our Mishnah in [the chapter entitled] Yesh Nochalin (Bava Batra 130a), “One who says, ‘X shall not inherit with his brothers,’ has said nothing, for he has stipulated against what is written in the Torah. And so [too,] one who says, ‘Y (stranger) shall inherit me,’ when he has a daughter, or ‘My daughter shall inherit me,’ when he has a son, has said nothing, for he has stipulated against what is written in the Torah. Rabbi Yochanan ben Beroka says, ‘If he said [it] about one who is qualified to inherit from him, his words are valid, but about one who is not qualified to inherit from him, his words are not valid.’” The explanation is if he said about one son among his sons, or one daughter among his daughters that only [that] one among them inherit him, his words are valid. And it is expounded in the Gemara from that which is written (Deuteronomy 21:16), “And it shall be on the day that he gives his inheritance to his sons” — that the Torah gave the father permission to bequeath to whom he wants from those qualified to inherit. And the law about this is decided like Rabbi Yochanan regarding common [children], but not regarding the firstborn; about which the father does not have the power to uproot the inheritance from the firstborn in this matter.
They also said there (Bava Batra 126b), “The one who divides his properties, gives a large portion to one and a small portion to another, or gives a standard portion to the firstborn, his words are valid. But if he said it as ‘inheritance’ he has said nothing. If he wrote it — whether at the beginning of his words, or in the middle of his words or at the end — as a gift, his words are valid.” And it seems that even though there is no validity to the words of the one who [employs] an expression of inheritance and his actions [in this regard] are nothing — as is explicit in the Mishnah — through his commanding this, he has violated this positive commandment of inheritance, for he has transgressed against the decree of the King. And so [too,] if maybe after he dies, the court affirms these words of his, they also have the iniquity of violating this positive commandment, besides the punishment for the negative commandment of “Do not pervert justice.” And according to what appears from the words of Rambam, may his memory be blessed, the entire thrust of this warning is only upon the court that judged about the matter of inheritance like this. And this is his language that he wrote: “It is a commandment to judge the laws of inheritance.” And it is as he elucidated the matter about the commandment of annulling vows, before it.
It is from the root of the commandment [that it is] so that a person should reflect that the world is in the hand of the Master that oversees all of His creatures, and it is in His desire and His goodly will, that each and every person acquires the portion of possessions that he attains in this world. And His gift is blessed, that it stays forever with the one He gave it to, were it not that the world was penalized with death because of the original sin. Yet it is not correct that the removal of his body should end the blessed gift of God. Rather it should extend on its own [to] the body that descends from this one, i.e. his son or his daughter. And if he dies in his iniquity and he has no children, it is proper for the blessing of God to revert to the closest relative to him; as this blessing that this one acquired was either due to his merit or the merit of his forebears. Or perhaps his closest relatives taught him some skill that caused him to amass his possessions; therefore when he and his seed are removed from them, it is fitting for his relatives who assisted him in this merit to precede all other people.
From the laws of the commandment is that which they, may their memory be blessed, said in our Mishnah from [the chapter entitled] Yesh Nochalin (Bava Batra 115a), “The order of inheritance is thus: ‘If a man dies, etc.’ — a son precedes a daughter, and all offspring of a son precede a daughter; a daughter precedes brothers, and all offspring of a daughter precede brothers; the brothers, or the sisters where there are no brothers, precede brothers of the father (uncles); and brothers of the father, or sisters of the father (aunts) if there are no brothers of the father, precede other relatives. This is the general rule: the offspring of any heir precedes the next relation, and the father always precedes his offspring.” And in this way that we said, we go and climb up to the beginning of [the lineage]. Therefore, there is not anyone in Israel who has no heir.
And [also] that which they said there (Bava Batra 108a) that a mother does not inherit [the property of] her children — and this thing is a tradition. And brothers from the mother (but from different fathers) do not inherit each other, as maternal family is not called family. And so, a mamzer (a son from Jewish parents forbidden to marry) — or a mamzer brother — behold, he inherits like other sons (Mishneh Torah, Laws of Inheritances 1:6-7); and even a mamzer son that became an apostate inherits. But a child of a maidservant or non-Jewess does not inherit, and he is not the father’s son for any [purpose]. But the Sages established that a man inherits from his wife, if they are fully married, and they gave the matter support from Scripture.
And Rambam (Sefer HaMitzvot, Positive Commandments 248), may his memory be blessed, wrote that included in these laws of inheritance without a doubt, is that the firstborn receives double — as this is included in the commandment of inheritance. And the explanation of double is two portions, meaning that if there are two brothers, we [divide] the money into three parts and the firstborn takes two. And if there are three, we [divide] it into four parts and he takes two, and so forth forever. But the firstborn only takes double in properties that are held by the father (Mishneh Torah, Laws of Inheritances 3:1), meaning to say that came into the domain of his father in his lifetime, but not that which is fitting to come to his father, as it is stated (Deuteronomy 21:17), “of all that is found to him.” How is this? [If] one of the individuals from whom the father could inherit dies after the father, the firstborn does not take double from that inheritance. And so [too,] if the father had a debt that was owed to him (Bava Batra 125b) — even [if it was recorded] in a contract — or if he has a merchant ship [raising revenue] in the sea, the firstborn does not have double of this; as this is not “found to the father.” And so [too,] for this reason, the firstborn does not take double of the appreciation of the properties after the death of his father, such as a field yielding grain, or trees bearing their fruit, as these were not extant to his father in his days. If, however, a small tree grew larger not due to an expense — but rather grew on its own — after his father’s death before the division [of the property], the firstborn does take double of this; as this is considered extant to his father, as it is unchanged in its form.
And the father is believed [when] he says, “This is my son, my firstborn” (Kiddushin 74a), or to say, “This is my son” or “This is not my son.” As it is written (Deuteronomy 21:17), “But the firstborn etc. shall he recognize” — and they, may their memory be blessed, expounded (Bava Batra 127b), “shall make him recognized by others.” And even if someone was presumed to be Reuven’s son, if Reuven says that he is not his son, he is believed, and he does not bequeath to him. And Rambam (Mishneh Torah, Laws of Inheritances 4:2), may his memory be blessed, wrote, “It seems to me that even if the son had sons, [such that] even though [the father] is not believed about him to say he is not his son, for the purposes of family relationships, and he is not presumed to be a mamzer on his word, he is believed for the purposes of inheritance and he will not inherit him.
And also that which they said (Bava Batra 129b) about this matter, that [if] one says to [someone else], “My properties are yours; and after you, for x” — if the first is eligible to inherit, the latter has nothing in place of the first. As since [the first] acquired the properties and he is eligible to inherit them, there is no further interruption of the inheritance because of the stipulation of the bequeather. And with the best commentaries, and proper logic, we learned in the chapter [entitled] Yesh Nochalin (Bava Batra 125b) that even if he says it with an expression of “from now,” as for example [if] he said to him, “My properties are yours; and from now, after you for x” — nonetheless, the latter has nothing in place of the first, as the first is eligible to inherit (and there is nothing left after the inheritance). But if the first is not eligible to inherit and he said to him, “from now, after you, will be for x,” the latter acquires the properties themselves, and the first one [only] receives the income all of his lifetime. And if he did not say, “from now,” but rather [just], “My properties are yours; and after you, for x,” the latter only receives what is left from the first (Bava Batra 137a, Mishneh Torah, Laws of Ownerless Property and Gifts 12:9). And if the first sells them, the latter never has the power to extract them from the purchaser, as they stay in the possession of the first all the days of his entire life for all of his desires — whether to sell them or give them as a gift to anyone he wants. They are so fully in the possession of the first that if the giver said, “My properties are yours; and after you, for x; and after him, for y,” if the second one dies in the lifetime of the first, they, may their memory be blessed, said in the Gemara (Bava Batra 129b), that the properties go back to the heirs of the first. As the [original ceder of the properties] did not leave anything over in his gift to the first, except for [the stipulation] that they would be given after [the life of the first] to the second, and from the second — and through his agency — to the third. And since the second died, and it is impossible for the third to acquire them through the agency of the second — as the giver had said — the properties remain in the hand of whom they are possessed and his heirs forever. And the same is true that we should rule in the way that we said, where he used the expression, “if” — for example [if] he said, “My properties are for x; and if he dies, they should be given to y.” (See Tur, Choshen Mishpat 248:4 in the name of Rabbenu Yonah.) As we are not coming to rule like this based on the expression, “after you.” Rather, the reason of the thing is because we say that the first acquired the properties themselves and its income; and they are possessed in his hand, [unless] we can extract them from him with a strong proof [otherwise]. But where the giver wrote, “My properties are yours; and after you, mine or my heirs”; even though he did not mention the expression, “from now,” in this retention, we should rule that if the recipient of the gift dies, the properties return to the giver or his heirs. And even if the recipient of the gift sells [them], the giver may extract them from the hand of the buyer when the recipient of the gift dies. As so did the sages say about this (Bava Batra 137b) — that anyone who retains [the rights to his properties] for himself or his heirs is always as if he stipulates, “This present will be for you to enjoy the profits [only] during all the days of your life.”
The general rule of the things that has come up in our hands in this matter after much toil is that so long as the first is eligible to inherit, once the bequeather said, “My properties are yours,” it is no longer in his hand to give them to another, even to his heir; since the properties immediately enter the possession of the [first] heir. And afterwards, he is only like one who makes stipulations about the properties of another person. And it is like the matter that is said about this topic in the Gemara (Bava Batra 133a), “He held it has interruption” — it, meaning inheritance — “and the [Torah] stated that it does not have interruption.”
And our teachers, may God protect them, taught us what is even greater than this with strong and clear proofs: That even one who says to someone who is eligible to inherit him, “My properties are yours; and after you, to be consecrated property (hekdesh),” or even if he said, “and from now, after you, to be consecrated,” the heir acquires the properties and he may sell them or do with them as he desires; and [the one in charge of] consecrated property does not have the power to extract them from the hand of the purchaser or the recipient of the gift for the reason that we wrote. And once the bequeather said to his heir, “My properties are yours,” [the heir] acquires the properties, and it is no longer in his hand to consecrate them. Rather, it is like he consecrates the property of others. And regarding what there is to analyze in this matter that at the beginning of the analysis seems difficult — such as that which they, may their memory be blessed, said (Kiddushin 28b), “his statement for consecrated property is like delivery for regular property,” and other things — we have already discussed them back and forth, and have come to precise understandings about all of them, such that the matter has come up clarified as we have written. The matter would be too long if I came to write it all and it is not the work of my book. But if you will merit, my son, and cast your net upon the sea of the Gemara, all of it will come up to you. [These] and the rest of the details of the commandment are elucidated in Bava Batra in the chapter [entitled] Yesh Nochalin. (See Tur, Choshen Mishpat 276.).
And it is practiced in every place and at all times by males and females. And one who transgresses it and commanded — whether he was healthy or on his deathbed — that the one eligible to inherit him, not inherit him, has nullified this positive commandment, provided that he commanded so, with an expression of “inheritance,” as we have said. And [this is true] even though his words have no substance, as we have written above at the beginning of the topic. And Ramban, may his memory be blessed, wrote that Rambam, may his memory be blessed, skipped two commandments, one positive commandment and one negative — and both of them are about the firstborn. As a man is commanded to recognize the firstborn by giving him double, and that is a positive commandment on the father that Rambam skipped. And so too, it warns him about transferring the rights of the firstborn from him. And about this it states (Deuteronomy 21:16), “he may not make into a firstborn the son of the beloved, etc.” And the teacher mentioned also did not itemize this warning [as a negative commandment], but rather grouped it all into the commandment of the law of inheritances.
מִצְוַת דִּינֵי נְחָלוֹת – שֶׁנִּצְטַוִּינוּ בְּדִינֵי נְחָלוֹת, כְּלוֹמַר שֶׁמִּצְוָה עָלֵינוּ לַעֲשׂוֹת וְלָדוּן בְּעִנְיַן הַנַּחֲלָה כַּאֲשֶׁר דָּנָה הַתּוֹרָה עָלֶיהָ, שֶׁנֶּאֱמַר (במדבר כז ח ט) אִישׁ כִּי יָמוּת וּבֵן אֵין לוֹ וְהַעֲבַרְתֶּם אֶת נַחֲלָתוֹ לְבִתּוֹ וְאִם אֵין לוֹ בַּת וְגוֹ'. וְסוֹף הַפָּרָשָׁה (שם יא) וְהָיְתָה לִבְנֵי יִשְׂרָאֵל לְחֻקַּת עוֹלָם כַּאֲשֶׁר צִוָּה יְיָ אֶת מֹשֶׁה. וְאַל תַּחְשֹׁב שֶׁאָמְרִי בָּזֶה שֶׁהַמִּצְוָה הִיא שֶׁנַּעֲשֶׂה בְּעִנְיַן הַנַּחֲלָה כַּאֲשֶׁר דָּנָה הַתּוֹרָה עָלֶיהָ, שֶׁיִּרְצֶה לוֹמַר שֶׁיִּהְיֶה הָאָדָם מְצֻוֶּה מֵהָאֵל לָתֵת מָה שֶׁיֵּשׁ לוֹ לְיוֹרְשׁוֹ עַל כָּל פָּנִים, כִּי הָאֵל בָּרוּךְ הוּא לֹא רָצָה לְהוֹצִיא נִכְסֵי הָאָדָם מֵרְשׁוּתוֹ שֶׁלֹּא לַעֲשׂוֹת מֵהֶם כָּל חֶפְצוֹ בִּשְׁבִיל יוֹרְשׁוֹ כָּל עוֹד נִשְׁמָתוֹ בּוֹ, כְּמוֹ שֶׁיַּחְשְׁבוּ חַכְמֵי הָאֻמּוֹת, אֲבָל הוֹדִיעָנוּ שֶׁזְּכוּת הַיּוֹרֵשׁ קְשׁוּרָה בְּנִכְסֵי מוֹרִישׁוֹ, וּבְהִסְתַּלֵּק כֹּחַ הַמּוֹרִישׁ מִן הַנְּכָסִים בְּמוֹתוֹ מִיָּד נוֹפֶלֶת עֲלֵיהֶם זְכוּת הַיּוֹרֵשׁ, כְּעִנְיַן הִשְׁתַּלְשְׁלוּת הַיְּצִירוֹת שֶׁרָצָה הַיּוֹצֵר בָּרוּךְ הוּא זֶה אַחַר זֶה מִבְּלִי הֶפְסֵק. וְרַבּוֹתֵנוּ זִכְרוֹנָם לִבְרָכָה יִקְרְאוּ לִזְכוּת הַחֲזָקָה שֶׁיֵּשׁ לַיּוֹרֵשׁ בְּנִכְסֵי מוֹרִישׁוֹ בִּלְשׁוֹן מִשְׁמוּשׁ, כִּלְשׁוֹן אָמְרָם בְּהַרְבֵּה מְקוֹמוֹת (ב"ב קטו ב) נַחֲלָה מְמַשְׁמֶשֶׁת וְהוֹלֶכֶת, כְּלוֹמַר, שֶׁזְּכוּת הַיּוֹרֵשׁ בַּמּוֹרִישׁ כְּאִלּוּ הַגּוּפִים דְּבוּקִים זֶה בָּזֶה, שֶׁכָּל הַיּוֹצֵא מִן הָאֶחָד נוֹפֵל עַל הַשֵּׁנִי.
The commandment of the laws of inheritance: That we were commanded with the laws of inheritances; that is, that it is a commandment upon us to act and rule in the matter of inheritance, as the Torah ruled about it, as it is stated (Numbers 27:8-9), “If a man dies and has no son, you shall pass his inheritance to his daughter. And if he has no daughter, etc.” And the end of the section [is], “and this shall be for the Children of Israel as an eternal statute, as the Lord commanded Moshe.” But do not think that its stating in this that in the matter of inheritance we act as the Torah ruled about it, means to say that a man is commanded by God to give what he has to his heirs in all cases; as God, blessed be He, did not wish to extract the properties of a person from his control, for the sake of his heir, that he should not do all of his desire [with them], so long as his soul is in him, as [is the view] of the wise men of the nations. Rather, it informs us that the right of the heirs is entwined with the property of their [progenitor]. And [so] when the [ownership] of the bequeather elapses with his death, the right of the heirs immediately rests upon them; like the matter of procreation that the Creator, blessed be He, wanted without interruption. Our Rabbis, may their memory be blessed, designated this right of assertion of the heir in the properties of his bequeather, with the expression, “touching,” as in the expression in their statement in many places (e.g. Bava Batra 115b), “Inheritance touches and continues.” [This] means that the right of the heir upon the bequeather is like two bodies clinging to each other, such that what comes out from one, rests upon the other.
וּמִפְּנֵי כֵן אָמְרוּ זִכְרוֹנָם לִבְרָכָה (שם קכו, ב) שֶׁאִם צִוָּה וְאָמַר הַמּוֹרִישׁ אַל יִירָשֵׁנִי בְּנִי, אוֹ בְּנִי פְּלוֹנִי לֹא יִירַשׁ עִם אֶחָיו, אוֹ בִּתִּי תִּירָשֵׁנִי בְּמָקוֹם שֶׁיֵּשׁ בֵּן, וְכַיּוֹצֵא בַּדְּבָרִים הָאֵלֶּה אֵין בִּדְבָרָיו מַמָּשׁ, שֶׁאֵין בְּיָדוֹ לַעֲקֹר דְּבַר הָאֵל שֶׁאָמַר שֶׁיִּירַשׁ הַיּוֹרֵשׁ מוֹרִישׁוֹ. וְאַף עַל פִּי שֶׁאָמַרְנוּ שֶׁנְּכָסָיו בְּיָדָיו לְכָל חֲפָצָיו, הָעִנְיָן הוּא לוֹמַר שֶׁיָּכֹל לִתְּנָם לְכָל מִי שֶׁיִּרְצֶה וְלַעֲשׂוֹת בָּהֶם כָּל חֶפְצַת נַפְשׁוֹ וַאֲפִילּוּ לְאַבְּדָם, בְּכָל לָשׁוֹן, חוּץ מִזֶּה שֶׁל יְרֻשָּׁה, לְפִי שֶׁזֶּה הַדִּבּוּר הוּא כְּנֶגֶד דִּבּוּרוֹ שֶׁל מָקוֹם וּגְזֵרָתוֹ, כִּי הוּא אָמַר יִירַשׁ הַיּוֹרֵשׁ, וְעַל כֵּן אֵין כֹּחַ בְּיַד אָדָם לוֹמַר לֹא יִירַשׁ, וְהַיְנוּ מַתְנִיתִין דְּיֵשׁ נוֹחֲלִין (שם קל א) הָאוֹמֵר אִישׁ פְּלוֹנִי לֹא יִירַשׁ עִם אֶחָיו לֹא אָמַר כְּלוּם, שֶׁהִתְנָה עַל מַה שֶׁכָּתוּב בַּתּוֹרָה, וְכֵן הָאוֹמֵר פְּלוֹנִי יִירָשֵׁנִי בְּמָקוֹם שֶׁיֵּשׁ בַּת, בִּתִּי תִּירָשֵׁנִי בְּמָקוֹם שֶׁיֵּשׁ בֵּן, לֹא אָמַר כְּלוּם, שֶׁהִתְנָה עַל מַה שֶׁכָּתוּב בַּתּוֹרָה, רַבִּי יוֹחָנָן בֶּן בְּרוֹקָה אוֹמֵר אִם אָמַר עַל מִי שֶׁרָאוּי לְיָרְשׁוֹ דְּבָרָיו קַיָּמִים, וְעַל מִי שֶׁאֵינוֹ רָאוּי לְיָרְשׁוֹ אֵין דְּבָרָיו קַיָּמִים, פֵּרוּשׁ אִם אָמַר עַל בֵּן בֵּין הַבָּנִים אוֹ עַל בַּת בֵּין הַבָּנוֹת שֶׁיִּירָשֶׁנּוּ אֶחָד מֵהֶם לְבַדּוֹ דְּבָרָיו קַיָּמִים, וְדָרֵשׁ לֵהּ בַּגְּמָרָא (שם) מִדִּכְתִיב (דברים כא טז) וְהָיָה בְּיוֹם הַנְחִילוֹ אֶת בָּנָיו, שֶׁהַתּוֹרָה נָתְנָה רְשׁוּת לָאָב לְהַנְחִיל מִי שֶׁיִּרְצֶה מִן הָרְאוּיִין לִירַשׁ, וְנִפְסְקָה שָׁם הֲלָכָה בָּזֶה כְּרַבִּי יוֹחָנָן לְגַבֵּי פְּשׁוּטִין, אֲבָל לֹא לְגַבֵּי בְּכוֹר, שֶׁאֵין כֹּחַ בָּאָב לַעֲקֹר יְרֻשָּׁה מִן הַבְּכוֹר בְּעִנְיָן זֶה.
And because of this, they, may their memory be blessed, said (Bava Batra 126b) that if the bequeather commanded and said, “My son shall not inherit me,” or “My son x shall not inherit with his brothers” or “My daughter x shall inherit me,” when he has a son, or similar to these words; his words have no force, as he does not have the power to uproot the word of God, Who said that the heir inherits the bequeather. And even though we said that his properties are in his hands for all of his desires, the matter is to say that he may give them to whom he wants and to do whatever is his desire — and even to destroy his property — with any expression, except for that of inheritance; as this statement is against the statement of the Omnipresent and His decree. As He stated that the heir inherits, and hence a person has no power to say [that] he shall not inherit. And this is [the meaning] of our teaching in our Mishnah in [the chapter entitled] Yesh Nochalin (Bava Batra 130a), “One who says, ‘X shall not inherit with his brothers,’ has said nothing, for he has stipulated against what is written in the Torah. And so [too,] one who says, ‘Y (stranger) shall inherit me,’ when he has a daughter, or ‘My daughter shall inherit me,’ when he has a son, has said nothing, for he has stipulated against what is written in the Torah. Rabbi Yochanan ben Beroka says, ‘If he said [it] about one who is qualified to inherit from him, his words are valid, but about one who is not qualified to inherit from him, his words are not valid.’” The explanation is if he said about one son among his sons, or one daughter among his daughters that only [that] one among them inherit him, his words are valid. And it is expounded in the Gemara from that which is written (Deuteronomy 21:16), “And it shall be on the day that he gives his inheritance to his sons” — that the Torah gave the father permission to bequeath to whom he wants from those qualified to inherit. And the law about this is decided like Rabbi Yochanan regarding common [children], but not regarding the firstborn; about which the father does not have the power to uproot the inheritance from the firstborn in this matter.
וְעוֹד אָמְרוּ שָׁם (קכו, ב) הַמְּחַלֵּק נְכָסָיו רִבָּה לְאֶחָד וּמִעֵט לְאֶחָד, וְהִשְׁוָה לָהֶם אֶת הַבְּכוֹר דְּבָרָיו קַיָּמִין, וְאִם אָמַר מִשּׁוּם יְרֻשָּׁה לֹא אָמַר כְּלוּם. כָּתַב בֵּין בִּתְחִלַּת דְּבָרָיו בֵּין בְּאֶמְצַע דְּבָרָיו בֵּין בַּסּוֹף מִשּׁוּם מַתָּנָה, דְּבָרָיו קַיָּמִין. וּלְפִי הַדּוֹמֶה, אַף עַל פִּי שֶׁאֵין מַמָּשׁ בְּדִבְרֵי הָאוֹמֵר לָשׁוֹן יְרֻשָּׁה, וּמַעֲשָׂיו אֵינָם כְּלוּם, כְּדִמְפָרֵשׁ בְּמַתְנִיתִין, בְּצַוּוֹתוֹ כֵּן הוּא מְבַטֵּל מִצְוַת עֲשֵׂה זֶה שֶׁל יְרֻשָּׁה, מִשּׁוּם דְּעָבַר אַהַרְמָנָא דְּמַלְכָּא. וְכֵן אִם שֶׁמָּא אַחַר מוֹתוֹ קִיְּמוּ בֵּית דִּין אֶת דְּבָרָיו אֵלֶּה, יֵשׁ עֲלֵיהֶם גַּם כֵּן עֲוֹן בִּטּוּל מִצְוַת עֲשֵׂה זֶה, מִלְּבַד עֹנֶשׁ לָאו דְּלֹא תַטֶּה מִשְׁפָּט, וּלְפִי הַנִּרְאֶה מִדִּבְרֵי הָרַמְבַּ"ם זִכְרוֹנוֹ לִבְרָכָה, שֶׁכָּל עִקַּר הָאַזְהָרָה אֵינֶנָּה רַק עַל הַבֵּית דִּין שֶׁדָּנוּ בְּעִנְיַן הַנַּחֲלָה כֵּן, וְזֶהוּ לְשׁוֹנוֹ שֶׁכָּתַב הוּא, מִצְוָה לָדוּן בְּדִין הַנַּחֲלָה, וּכְמוֹ שֶׁבֵּאֵר הָעִנְיָן בְּמִצְוַת הֲפָרַת נְדָרִים שֶׁלְּפָנָיו.
They also said there (Bava Batra 126b), “The one who divides his properties, gives a large portion to one and a small portion to another, or gives a standard portion to the firstborn, his words are valid. But if he said it as ‘inheritance’ he has said nothing. If he wrote it — whether at the beginning of his words, or in the middle of his words or at the end — as a gift, his words are valid.” And it seems that even though there is no validity to the words of the one who [employs] an expression of inheritance and his actions [in this regard] are nothing — as is explicit in the Mishnah — through his commanding this, he has violated this positive commandment of inheritance, for he has transgressed against the decree of the King. And so [too,] if maybe after he dies, the court affirms these words of his, they also have the iniquity of violating this positive commandment, besides the punishment for the negative commandment of “Do not pervert justice.” And according to what appears from the words of Rambam, may his memory be blessed, the entire thrust of this warning is only upon the court that judged about the matter of inheritance like this. And this is his language that he wrote: “It is a commandment to judge the laws of inheritance.” And it is as he elucidated the matter about the commandment of annulling vows, before it.
מִשָּׁרְשֵׁי הַמִּצְוָה. כְּדֵי שֶׁיֵּדַע הָאָדָם וְיִתְבּוֹנֵן, כִּי הָעוֹלָם בְּיַד אָדוֹן מַשְׁגִּיחַ עַל כָּל בְּרִיּוֹתָיו, וּבִרְצוֹנוֹ וְחֶפְצוֹ הַטּוֹב, זוֹכֶה כָּל אֶחָד וְאֶחָד מִבְּנֵי הָעוֹלָם בְּחֵלֶק הַנְּכָסִים שֶׁהוּא מַשִּׂיג בְּעוֹלָמוֹ, וּמַתְּנָתוֹ בָּרוּךְ הוּא מְבֹרֶכֶת, שֶׁתִּמָּשֵׁךְ לְעוֹלָם לַאֲשֶׁר יִתְּנֶנָּה לוֹ, אִם לֹא כִּי מֵחֵטְא הַקַּדְמוֹנִי נִקְנְסָה מִיתָה בָּעוֹלָם, וּמִפְּנֵי סִלּוּק גּוּפוֹ אֵינוֹ בְּדִין לִהְיוֹת הֶפְסֵק לְמַתְּנַת הָאֵל הַמְּבֹרֶכֶת, אֲבָל תִּתְפַּשֵּׁט מֵאֵלֶיהָ בַּגּוּף הַמִּשְׁתַּלְשֵׁל מִמֶּנּוּ שֶׁזֶּהוּ בְּנוֹ אוֹ בִּתּוֹ, וְאִם הוּא בַּעֲוֹנוֹ יָמוּת וּבָנִים לֹא יִהְיוּ לוֹ רְאוּיָה בִּרְכַּת הַשֵּׁם שֶׁתָּשׁוּב אֶל הַקָּרוֹב אֵלָיו, כִּי זֹאת הַבְּרָכָה שֶׁזָּכָה בָּהּ זֶה אוֹ זְכוּתוֹ גָּרְמָה לוֹ, אוֹ זְכוּת אֲבוֹתָיו, אוֹ עִם הַקְּרוֹבִים לוֹ יוֹתֵר לָמַד כִּשְׁרוֹן הַמַּעֲשֶׂה שֶׁזָּכָה עִמּוֹ לַנְּכָסִים, וְלָכֵן בְּהִסְתַּלֵּק הוּא וְזַרְעוֹ מֵהֶן בְּחֶטְאוֹ רְאוּיִים הַקְּרוֹבִים שֶׁסִּיְּעוּ אוֹתוֹ לִזְכּוֹת, לִהְיוֹת קוֹדְמִין בָּהֶם לְכָל אָדָם.
It is from the root of the commandment [that it is] so that a person should reflect that the world is in the hand of the Master that oversees all of His creatures, and it is in His desire and His goodly will, that each and every person acquires the portion of possessions that he attains in this world. And His gift is blessed, that it stays forever with the one He gave it to, were it not that the world was penalized with death because of the original sin. Yet it is not correct that the removal of his body should end the blessed gift of God. Rather it should extend on its own [to] the body that descends from this one, i.e. his son or his daughter. And if he dies in his iniquity and he has no children, it is proper for the blessing of God to revert to the closest relative to him; as this blessing that this one acquired was either due to his merit or the merit of his forebears. Or perhaps his closest relatives taught him some skill that caused him to amass his possessions; therefore when he and his seed are removed from them, it is fitting for his relatives who assisted him in this merit to precede all other people.
מִדִּינֵי הַמִּצְוָה. מָה שֶׁאָמְרוּ זִכְרוֹנָם לִבְרָכָה בְּמַתְנִיתִין דְּיֵשׁ נוֹחֲלִין (שם קטו א) סֵדֶר נְחָלוֹת כָּךְ הוּא אִישׁ כִּי יָמוּת וְגוֹ' הַבֵּן קוֹדֵם לַבַּת, וְכָל יוֹצְאֵי יְרֵכוֹ שֶׁל בֵּן קוֹדְמִין לַבַּת, הַבַּת קוֹדֶמֶת לָאַחִין, וְכָל יוֹצְאֵי יְרֵכָהּ שֶׁל בַּת קוֹדְמִין לָאַחִים. הָאַחִים אוֹ הָאֲחָיוֹת בְּמָקוֹם שֶׁאֵין אַחִים קוֹדְמִין לַאֲחֵי הָאָב, וְאַחֵי אָבִיו, אוֹ אַחֲיוֹת אָבִיו בְּמָקוֹם שֶׁאֵין אַחִים לָאָב קוֹדְמִין לִשְׁאָר קְרוֹבִים. זֶה הַכְּלָל, כָּל הַקּוֹדֵם בַּנַּחֲלָה יוֹצְאֵי יְרֵכוֹ קוֹדְמִין, וְהָאָב קוֹדֵם לְכָל יוֹצְאֵי יְרֵכוֹ, וְעַל הַדֶּרֶךְ הַזֶּה שֶׁאָמַרְנוּ הוֹלֵךְ וְעוֹלֶה עַד רֹאשׁ הַדּוֹרוֹת, לְפִיכָךְ אֵין לְךָ אֶחָד מִיִּשְׂרָאֵל שֶׁאֵין לוֹ יוֹרֵשׁ.
From the laws of the commandment is that which they, may their memory be blessed, said in our Mishnah from [the chapter entitled] Yesh Nochalin (Bava Batra 115a), “The order of inheritance is thus: ‘If a man dies, etc.’ — a son precedes a daughter, and all offspring of a son precede a daughter; a daughter precedes brothers, and all offspring of a daughter precede brothers; the brothers, or the sisters where there are no brothers, precede brothers of the father (uncles); and brothers of the father, or sisters of the father (aunts) if there are no brothers of the father, precede other relatives. This is the general rule: the offspring of any heir precedes the next relation, and the father always precedes his offspring.” And in this way that we said, we go and climb up to the beginning of [the lineage]. Therefore, there is not anyone in Israel who has no heir.
וּמָה שֶׁאָמְרוּ שָׁם (קח א), שֶׁאֵין הָאֵם יוֹרֶשֶׁת בָּנֶיהָ, וְדָבָר זֶה קַבָּלָה, וְהָאַחִים מִן הָאֵם אֵינָם יוֹרְשִׁין זֶה אֶת זֶה, דְּמִשְׁפַּחַת אֵם אֵינָהּ קְרוּיָה מִשְׁפָּחָה, וְכֵן מַמְזֵר אוֹ אָח מַמְזֵר הֲרֵי זֶה יוֹרֵשׁ כִּשְׁאָר הַבָּנִים (רמב"ם נחלות א ו ז), וַאֲפִילּוּ בֵּן מַמְזֵר שֶׁהֵמִיר דָּת יוֹרֵשׁ הוּא, אֲבָל בֶּן שִׁפְחָה וְנָכְרִית אֵינוֹ יוֹרֵשׁ וְאֵינוֹ כְּבֵן לְשׁוּם דָּבָר, וַחֲכָמִים תִּקְּנוּ (שסא ח) שֶׁיְּהֵא הָאָדָם יוֹרֵשׁ אֶת אִשְׁתּוֹ מִן הַנִּשּׂוּאִין וְסָמְכוּ הַדָּבָר מִן הַכָּתוּב.
And [also] that which they said there (Bava Batra 108a) that a mother does not inherit [the property of] her children — and this thing is a tradition. And brothers from the mother (but from different fathers) do not inherit each other, as maternal family is not called family. And so, a mamzer (a son from Jewish parents forbidden to marry) — or a mamzer brother — behold, he inherits like other sons (Mishneh Torah, Laws of Inheritances 1:6-7); and even a mamzer son that became an apostate inherits. But a child of a maidservant or non-Jewess does not inherit, and he is not the father’s son for any [purpose]. But the Sages established that a man inherits from his wife, if they are fully married, and they gave the matter support from Scripture.
וְכָתַב הָרַמְבַּ"ם זִכְרוֹנוֹ לִבְרָכָה (בסהמ"צ עשה רמח) וּמִכְּלַל זֶה הַדִּין שֶׁל נְחָלוֹת בְּלִי סָפֵק, הֱיוֹת הַבְּכוֹר נוֹטֵל פִּי שְׁנַיִם, שֶׁזּוֹ הִיא מִכְּלַל מִצְוַת הַנְּחָלוֹת. וּפִי שְׁנַיִם פֵּרוּשׁוֹ, שְׁנֵי חֲלָקִים, כְּלוֹמַר, שֶׁאִם הָיוּ שְׁנֵי אַחִין עוֹשִׂין מִן הַמָּמוֹן שְׁלֹשָׁה חֲלָקִים, וְהַבְּכוֹר נוֹטֵל הַשְּׁנַיִם, וְאִם הָיוּ שְׁלֹשָׁה עוֹשִׂין מִמֶּנּוּ אַרְבָּעָה חֲלָקִים וְנוֹטֵל הַשְּׁנַיִם, וְעַל הַדֶּרֶךְ הַזֶּה לְעוֹלָם. וְאֵין הַבְּכוֹר נוֹטֵל פִּי שְׁנַיִם אֶלָּא בַּנְּכָסִים הַמֻּחְזָקִים לְאָבִיו (רמב"ם שם ג א), כְּלוֹמַר, שֶׁבָּאוּ בִּרְשׁוּת אָבִיו בְּחַיָּיו, אֲבָל לֹא בָּרְאוּיִים לָבוֹא אֶל אָבִיו, שֶׁנֶּאֱמַר (דברים כא יז) בְּכֹל אֲשֶׁר יִמָּצֵא לוֹ. כֵּיצַד? אֶחָד מִמּוֹרִישֵׁי אָבִיו שֶׁמֵּת לְאַחַר מִיתַת אָבִיו אֵין הַבְּכוֹר נוֹטֵל בְּאוֹתָהּ יְרֻשָּׁה פִּי שְׁנַיִם, וְכֵן (שם קכה, ב) אִם הָיָה לַאֲבִיהֶם חוֹב שֶׁחַיָּבִים לוֹ, וַאֲפִלּוּ בִּשְׁטָר, אוֹ אֲפִלּוּ הָיְתָה לוֹ סְפִינָה בַּיָּם אֵין לַבְּכוֹר בָּזֶה פִּי שְׁנַיִם, (שֶׁאֵין זֶה פִּי שְׁנַיִם), שֶׁאֵין זֶה מָצוּי לְאָבִיו. וְכֵן מִטַּעַם זֶה, אֵין הַבְּכוֹר נוֹטֵל בַּשֶּׁבַח שֶׁשָּׁבְחוּ נְכָסִים אַחַר מִיתַת אָבִיו, כְּגוֹן שַׁחַת שֶׁנַּעֲשָׂה דָּגָן, וְהָאִילָנוֹת שֶׁהוֹצִיאוּ פֵּרוֹתֵיהֶן, שֶׁכָּל זֶה לֹא הָיָה מָצוּי לְאָבִיו בְּיָמָיו, אֲבָל אִילָן קָטָן שֶׁנַּעֲשָׂה גָּדוֹל שֶׁלֹּא מֵחֲמַת הוֹצָאָה, אֶלָּא מֵעַצְמוֹ גָּדַל אַחַר מִיתַת אָבִיו קֹדֶם חֲלֻקָּה הַבְּכוֹר נוֹטֵל בָּזֶה פִּי שְׁנַיִם, דְּמָצוּי לְאָבִיו נִקְרָא מִכֵּיוָן שֶׁלֹּא נִשְׁתַּנָּה עִנְיָנוֹ.
And Rambam (Sefer HaMitzvot, Positive Commandments 248), may his memory be blessed, wrote that included in these laws of inheritance without a doubt, is that the firstborn receives double — as this is included in the commandment of inheritance. And the explanation of double is two portions, meaning that if there are two brothers, we [divide] the money into three parts and the firstborn takes two. And if there are three, we [divide] it into four parts and he takes two, and so forth forever. But the firstborn only takes double in properties that are held by the father (Mishneh Torah, Laws of Inheritances 3:1), meaning to say that came into the domain of his father in his lifetime, but not that which is fitting to come to his father, as it is stated (Deuteronomy 21:17), “of all that is found to him.” How is this? [If] one of the individuals from whom the father could inherit dies after the father, the firstborn does not take double from that inheritance. And so [too,] if the father had a debt that was owed to him (Bava Batra 125b) — even [if it was recorded] in a contract — or if he has a merchant ship [raising revenue] in the sea, the firstborn does not have double of this; as this is not “found to the father.” And so [too,] for this reason, the firstborn does not take double of the appreciation of the properties after the death of his father, such as a field yielding grain, or trees bearing their fruit, as these were not extant to his father in his days. If, however, a small tree grew larger not due to an expense — but rather grew on its own — after his father’s death before the division [of the property], the firstborn does take double of this; as this is considered extant to his father, as it is unchanged in its form.
וְהָאָב נֶאֱמָן לוֹמַר (קדושין עד, א) זֶה בְּנִי בְּכוֹרִי, וְנֶאֱמָן לוֹמַר זֶהוּ בְּנִי אוֹ זֶה אֵינוֹ בְּנִי, שֶׁהַתּוֹרָה הֶאֱמִינַתּוּ בָּזֶה, דִּכְתִיב (שם) כִּי אֶת הַבְּכוֹר וְגוֹ' יַכִּיר, וְדָרְשׁוּ זִכְרוֹנָם לִבְרָכָה (ב"ב קכז ב) יַכִּירֶנּוּ לַאֲחֵרִים, וַאֲפִלּוּ הָיָה אֶחָד מֻחְזָק שֶׁהוּא בֶּן רְאוּבֵן וְאָמַר רְאוּבֵן שֶׁאֵינוֹ בְּנוֹ נֶאֱמָן עָלָיו וְלֹא יִירָשֶׁנּוּ. וְכָתַב הָרַמְבַּ"ם זִכְרוֹנוֹ לִבְרָכָה (נחלות ד, ב) וְיֵרָאֶה לִי שֶׁאֲפִלּוּ הָיוּ לַבֵּן בָּנִים, אַף עַל פִּי שֶׁאֵינוֹ נֶאֱמָן עָלָיו לוֹמַר אֵינוֹ בְּנוֹ לְעִנְיַן יִחוּס וְאֵין מַחְזִיקִין אוֹתוֹ מַמְזֵר עַל פִּיו, נֶאֱמָן הוּא לְעִנְיַן יְרֻשָּׁה וְלֹא יִירָשֶׁנּוּ.
And the father is believed [when] he says, “This is my son, my firstborn” (Kiddushin 74a), or to say, “This is my son” or “This is not my son.” As it is written (Deuteronomy 21:17), “But the firstborn etc. shall he recognize” — and they, may their memory be blessed, expounded (Bava Batra 127b), “shall make him recognized by others.” And even if someone was presumed to be Reuven’s son, if Reuven says that he is not his son, he is believed, and he does not bequeath to him. And Rambam (Mishneh Torah, Laws of Inheritances 4:2), may his memory be blessed, wrote, “It seems to me that even if the son had sons, [such that] even though [the father] is not believed about him to say he is not his son, for the purposes of family relationships, and he is not presumed to be a mamzer on his word, he is believed for the purposes of inheritance and he will not inherit him.
וּמָה שֶׁאָמְרוּ זִכְרוֹנָם לִבְרָכָה (ב"ב קכט, ב) גַּם כֵּן בְּעִנְיָן זֶה שֶׁהָאוֹמֵר לְאָדָם נְכָסַי לְךָ וְאַחֲרֶיךָ לִפְלוֹנִי, אִם הָרִאשׁוֹן רָאוּי לְיָרְשׁוֹ אֵין לַשֵּׁנִי בִּמְקוֹם רִאשׁוֹן כְּלוּם, דְּמִכֵּיוָן שֶׁזָּכָה בַּנְּכָסִים וְהוּא הָרָאוּי לִירַשׁ אוֹתָם, אֵין לַיְּרֻשָּׁה הֶפְסֵק עוֹד מִפְּנֵי תְּנָאוֹ שֶׁל מוֹרִישׁ. וְעִם הַפֵּרוּשִׁים הַטּוֹבִים וְהַסְּבָרָא הַהוֹגֶנֶת לָמַדְנוּ בְּפֶרֶק יֵשׁ נוֹחֲלִין (בבא בתרא קכה, ב), שֶׁאֲפִלּוּ אָמַר לוֹ בִּלְשׁוֹן מֵעַכְשָׁו, וּכְגוֹן שֶׁאָמַר לוֹ נְכָסַי לְךָ, וּמֵעַכְשָׁו אַחֲרֶיךָ לִפְלוֹנִי, אַף עַל פִּי כֵן אֵין לַשֵּׁנִי בִּמְקוֹם רִאשׁוֹן כְּלוּם, מִכֵּיוָן שֶׁהָרִאשׁוֹן רָאוּי לְיָרְשׁוֹ, אֲבָל אִם אֵין רִאשׁוֹן רָאוּי לְיָרְשׁוֹ וְאָמַר לוֹ מֵעַכְשָׁו אַחֲרֶיךָ לִפְלוֹנִי זָכָה הַשֵּׁנִי בְּגוּף הַנְּכָסִים, וְהָרִאשׁוֹן יֹאכַל הַפֵּרוֹת לְבַד כָּל יְמֵי חַיָּיו, וְאִם לֹא אָמַר לוֹ מֵעַכְשָׁו (שם קלז, א) אֶלָּא נְכָסַי לְךָ וְאַחֲרֶיךָ לִפְלוֹנִי לֹא קָנָה שֵׁנִי אֶלָּא מָה שֶׁיִּשָּׁאֵר לָרִאשׁוֹן (רמב"ם זכיה ומתנות יב ט), וְאִם מְכָרָן רִאשׁוֹן אֵין כֹּחַ בַּשֵּׁנִי לְהוֹצִיאָם מִיַּד לוֹקֵחַ לְעוֹלָם, שֶׁבְּחֶזְקַת הָרִאשׁוֹן עוֹמְדִין כָּל יְמֵי חַיָּיו לְכָל חֲפָצָיו בֵּין לְמָכְרָם בֵּין לְתִתָּם בְּמַתָּנָה לְכָל מִי שֶׁיִּרְצֶה, וְכָל כָּךְ הֵם נְכָסִים אֵלּוּ בְּחֶזְקָתוֹ שֶׁל רִאשׁוֹן, שֶׁאִם אָמַר הַנּוֹתֵן נְכָסַי לְךָ וְאַחֲרֶיךָ לִפְלוֹנִי וְאַחֲרָיו לִפְלוֹנִי, אִם מֵת שֵׁנִי בְּחַיֵּי רִאשׁוֹן אָמְרוּ זִכְרוֹנָם לִבְרָכָה בַּגְּמָרָא (שם קכט ב) שֶׁיַּחְזְרוּ הַנְּכָסִים לְיוֹרְשֵׁי רִאשׁוֹן, לְפִי שֶׁהַנּוֹתֵן לֹא שִׁיֵּר כְּלוּם בְּמַתְּנָתוֹ שֶׁל רִאשׁוֹן אֶלָּא שֶׁיִּנָּתְנוּ הַנְּכָסִים אַחֲרָיו לַשֵּׁנִי, וּמִיַּד הַשֵּׁנִי וּמִכֹּחוֹ יָבוֹאוּ לַשְּׁלִישִׁי, וּמִכֵּיוָן שֶׁהַשֵּׁנִי מֵת וְאִי אֶפְשָׁר לַשְּׁלִישִׁי עוֹד שֶׁיִּזְכֶּה בָּהֶן מִכֹּחַ הַשֵּׁנִי כְּמוֹ שֶׁאָמַר הַנּוֹתֵן, יִשָּׁאֲרוּ הַנְּכָסִים בְּיַד מִי שֶׁהֵן בִּרְשׁוּתוֹ לוֹ וּלְיוֹרְשָׁיו לְעוֹלָם. וְהוּא הַדִּין שֶׁיֵּשׁ לָנוּ לָדוּן עַל הַדֶּרֶךְ שֶׁאָמַרְנוּ הֵיכָא שֶׁאָמַר הַנּוֹתֵן מַתְּנָתוֹ בִּלְשׁוֹן אִם (עי' טור חו"מ סי' רמח אות ד' בשם רבינו יונה), כְּגוֹן שֶׁאָמַר נְכָסַי לִפְלוֹנִי וְאִם מֵת יִנָּתְנוּ לִפְלוֹנִי, שֶׁאֵין אָנוּ בָּאִים לָדוּן כֵּן מִטַּעַם לְשׁוֹן אַחֲרֶיךָ, אֶלָּא טַעַם הַדָּבָר מִפְּנֵי שֶׁאָנוּ אוֹמְרִים כִּי הָרִאשׁוֹן זוֹכֶה בְּגוּפָן שֶׁל נְכָסִים וּבְפֵרוֹתֵיהֶן, וּלְעוֹלָם מֻחְזָקִין בְּיָדוֹ עַד שֶׁנּוּכַל לְהוֹצִיאָן מִמֶּנּוּ בִּרְאָיָה חֲזָקָה. אֲבָל הֵיכָא שֶׁכָּתַב נוֹתֵן נְכָסַי לְךָ, וְאַחֲרֶיךָ לִי אוֹ לְיוֹרְשַׁי, אַף עַל פִּי שֶׁלֹּא הִזְכִּיר לְשׁוֹן מֵעַכְשָׁו בְּשִׁיּוּר זֶה, יֵשׁ לָנוּ לָדוּן שֶׁאִם מֵת מְקַבֵּל מַתָּנָה שֶׁיַּחְזְרוּ הַנְּכָסִים לַנּוֹתֵן אוֹ לְיוֹרְשָׁיו, וַאֲפִלּוּ יָרַד וּמָכַר הַמְקַבֵּל מַתָּנָה הַנּוֹתֵן מוֹצִיאָם מִיַּד לוֹקֵחַ לִכְשֶׁיָּמוּת מְקַבֵּל מַתָּנָה, שֶׁכֵּן אָמְרוּ חֲכָמִים בָּזֶה (שם קלז, ב) שֶׁכָּל הַמְּשַׁיֵּר לְעַצְמוֹ אוֹ לְיוֹרְשָׁיו אֵינוֹ אֶלָּא כִּמְפָרֵשׁ מַתָּנָה זוֹ תִּהְיֶה לְךָ לַאֲכִילַת פֵּרוֹת כָּל יְמֵי חַיֶּיךָ.
And also that which they said (Bava Batra 129b) about this matter, that [if] one says to [someone else], “My properties are yours; and after you, for x” — if the first is eligible to inherit, the latter has nothing in place of the first. As since [the first] acquired the properties and he is eligible to inherit them, there is no further interruption of the inheritance because of the stipulation of the bequeather. And with the best commentaries, and proper logic, we learned in the chapter [entitled] Yesh Nochalin (Bava Batra 125b) that even if he says it with an expression of “from now,” as for example [if] he said to him, “My properties are yours; and from now, after you for x” — nonetheless, the latter has nothing in place of the first, as the first is eligible to inherit (and there is nothing left after the inheritance). But if the first is not eligible to inherit and he said to him, “from now, after you, will be for x,” the latter acquires the properties themselves, and the first one [only] receives the income all of his lifetime. And if he did not say, “from now,” but rather [just], “My properties are yours; and after you, for x,” the latter only receives what is left from the first (Bava Batra 137a, Mishneh Torah, Laws of Ownerless Property and Gifts 12:9). And if the first sells them, the latter never has the power to extract them from the purchaser, as they stay in the possession of the first all the days of his entire life for all of his desires — whether to sell them or give them as a gift to anyone he wants. They are so fully in the possession of the first that if the giver said, “My properties are yours; and after you, for x; and after him, for y,” if the second one dies in the lifetime of the first, they, may their memory be blessed, said in the Gemara (Bava Batra 129b), that the properties go back to the heirs of the first. As the [original ceder of the properties] did not leave anything over in his gift to the first, except for [the stipulation] that they would be given after [the life of the first] to the second, and from the second — and through his agency — to the third. And since the second died, and it is impossible for the third to acquire them through the agency of the second — as the giver had said — the properties remain in the hand of whom they are possessed and his heirs forever. And the same is true that we should rule in the way that we said, where he used the expression, “if” — for example [if] he said, “My properties are for x; and if he dies, they should be given to y.” (See Tur, Choshen Mishpat 248:4 in the name of Rabbenu Yonah.) As we are not coming to rule like this based on the expression, “after you.” Rather, the reason of the thing is because we say that the first acquired the properties themselves and its income; and they are possessed in his hand, [unless] we can extract them from him with a strong proof [otherwise]. But where the giver wrote, “My properties are yours; and after you, mine or my heirs”; even though he did not mention the expression, “from now,” in this retention, we should rule that if the recipient of the gift dies, the properties return to the giver or his heirs. And even if the recipient of the gift sells [them], the giver may extract them from the hand of the buyer when the recipient of the gift dies. As so did the sages say about this (Bava Batra 137b) — that anyone who retains [the rights to his properties] for himself or his heirs is always as if he stipulates, “This present will be for you to enjoy the profits [only] during all the days of your life.”
וּכְלַל הַדְּבָרִים שֶׁעָלוּ בְּיָדֵינוּ בְּעִנְיָן זֶה אַחַר יְגִיעָה רַבָּה, שֶׁכָּל זְמַן שֶׁהָרִאשׁוֹן רָאוּי לִירַשׁ, מִכֵּיוָן שֶׁאָמַר לוֹ הַמּוֹרִישׁ נְכָסַי לְךָ אֵין בְּיָדוֹ עוֹד לְתִתָּם לְאַחֵר וַאֲפִילּוּ לְיוֹרְשׁוֹ, אַחַר שֶׁמִּיָּד נִכְנְסוּ הַנְּכָסִים בְּחֶזְקַת יוֹרֵשׁ וְאֵינוֹ אַחַר כֵּן אֶלָּא כְּמַתְנֶה תְּנָאִים בְּנִכְסֵי אָדָם אַחֵר, וְכָעִנְיָן הַנֶּאֱמָר בְּעִנְיָן זֶה בַּגְּמָרָא (שם קלג, א) הוּא סָבַר יֵשׁ לָהּ הֶפְסֵק, כְּלוֹמַר לַיְּרֻשָּׁה וְרַחֲמָנָא אָמַר אֵין לָהּ הֶפְסֵק.
The general rule of the things that has come up in our hands in this matter after much toil is that so long as the first is eligible to inherit, once the bequeather said, “My properties are yours,” it is no longer in his hand to give them to another, even to his heir; since the properties immediately enter the possession of the [first] heir. And afterwards, he is only like one who makes stipulations about the properties of another person. And it is like the matter that is said about this topic in the Gemara (Bava Batra 133a), “He held it has interruption” — it, meaning inheritance — “and the [Torah] stated that it does not have interruption.”
וּגְדוֹלָה מִזֹּאת לִמְּדוּנוּ מוֹרֵינוּ יִשְׁמְרֵם אֵל בִּרְאָיוֹת חֲזָקוֹת וּבְרוּרוֹת, שֶׁאֲפִלּוּ הָאוֹמֵר לְמִי שֶׁרָאוּי לְיָרְשׁוֹ נְכָסַי לְךָ וְאַחֲרֶיךָ לַהֶקְדֵּשׁ, אוֹ אֲפִלּוּ אָמַר וּמֵעַכְשָׁו אַחֲרֶיךָ לַהֶקְדֵּשׁ, שֶׁהַיּוֹרֵשׁ זוֹכֶה בַּנְּכָסִים וְיֵשׁ לוֹ לְמָכְרָן וְלַעֲשׂוֹת בָּהֶן כָּל חֶפְצַת נַפְשׁוֹ, וְאֵין כֹּחַ בַּהֶקְדֵּשׁ לְעוֹלָם לְהוֹצִיאָן מִיַּד לוֹקֵחַ אוֹ מְקַבֵּל מַתָּנָה מִן הַטַּעַם שֶׁכָּתַבְנוּ, וּמִכֵּיוָן שֶׁאָמַר הַמּוֹרִישׁ לְיָרְשׁוֹ נְכָסַי לְךָ זָכָה בַּנְּכָסִים, וְאֵין בְּיָדוֹ לְהַקְדִּישׁ אוֹתָן עוֹד, אֶלָּא הֲרֵי הוּא כְּמַקְדִּישׁ נִכְסֵי אֲחֵרִים. וּמָה שֶׁיֵּשׁ לְעַיֵּן בְּעִנְיָן זֶה, שֶׁנִּרְאֶה בִּתְחִלַּת הָעִיּוּן קֻשְׁיָא, כְּגוֹן מַה שֶׁאָמְרוּ זִכְרוֹנָם לִבְרָכָה (קידושין כח, ב) אֲמִירָתוֹ לַגָּבוֹהַּ כִּמְסִירָתוֹ לַהֶדְיוֹט, וְעוֹד דְּבָרִים אֲחֵרִים, כְּבָר נָשָׂאנוּ וְנָתַנּוּ בָּהֶן וְדִקְדַּקְנוּ אֶת כֻּלָּן יָפֶה, וְעָלָה הָעִנְיָן מְבֹרָר כְּמוֹ שֶׁכָּתַבְנוּ, יֶאֱרַךְ הָעִנְיָן אִם בָּאתִי לִכְתֹּב הַכֹּל, וְלֹא מִמְּלֶאכֶת סִפְרִי הוּא, וְאִם תִּזְכֶּה בְּנִי וְתִפְרֹשׂ מִכְמֹרֶת בְּיָם הַגְּמָרָא הִיא תַּעֲלֶה לְךָ הַכֹּל. וְיֶתֶר פְּרָטֵי הַמִּצְוָה, מְבֹאָרִים בְּבָבָא בָּתְרָא פֶּרֶק יֵשׁ נוֹחֲלִין [ח"מ סי' רעו].
And our teachers, may God protect them, taught us what is even greater than this with strong and clear proofs: That even one who says to someone who is eligible to inherit him, “My properties are yours; and after you, to be consecrated property (hekdesh),” or even if he said, “and from now, after you, to be consecrated,” the heir acquires the properties and he may sell them or do with them as he desires; and [the one in charge of] consecrated property does not have the power to extract them from the hand of the purchaser or the recipient of the gift for the reason that we wrote. And once the bequeather said to his heir, “My properties are yours,” [the heir] acquires the properties, and it is no longer in his hand to consecrate them. Rather, it is like he consecrates the property of others. And regarding what there is to analyze in this matter that at the beginning of the analysis seems difficult — such as that which they, may their memory be blessed, said (Kiddushin 28b), “his statement for consecrated property is like delivery for regular property,” and other things — we have already discussed them back and forth, and have come to precise understandings about all of them, such that the matter has come up clarified as we have written. The matter would be too long if I came to write it all and it is not the work of my book. But if you will merit, my son, and cast your net upon the sea of the Gemara, all of it will come up to you. [These] and the rest of the details of the commandment are elucidated in Bava Batra in the chapter [entitled] Yesh Nochalin. (See Tur, Choshen Mishpat 276.).
וְנוֹהֶגֶת בְּכָל מָקוֹם וּבְכָל זְמַן בִּזְכָרִים וּנְקֵבוֹת, וְהָעוֹבֵר עַל זֶה וְצִוָּה בֵּין בָּרִיא בֵּין שְׁכִיב מְרַע, שֶׁלֹּא יִירָשֶׁנּוּ הָרָאוּי לְיָרְשׁוֹ בִּטֵּל עֲשֵׂה זֶה, וְהוּא שֶׁצִּוָּה כֵּן בִּלְשׁוֹן יְרֻשָּׁה, כְּמוֹ שֶׁאָמַרְנוּ, וְאַף עַל פִּי שֶׁאֵין בִּדְבָרָיו מַמָּשׁ כְּמוֹ שֶׁכָּתַבְנוּ לְמַעְלָה בִּתְחִלַּת הָעִנְיָן. וְהָרַמְבַּ"ן זִכְרוֹנוֹ לִבְרָכָה כָּתַב, כִּי הָרַמְבַּ"ם זִכְרוֹנוֹ לִבְרָכָה חִסֵּר בְּמָקוֹם זֶה שְׁתֵּי מִצְוֹת אַחַת מִצְוַת עֲשֵׂה, וְאַחַת לֹא תַעֲשֶׂה, וּשְׁתֵּיהֶן בַּבְּכוֹר, שֶׁהָאָדָם מְצֻוֶּה לְהַכִּיר הַבְּכוֹר בְּמַתַּת פִּי שְׁנַיִם לוֹ, וְזֹאת הִיא מִצְוַת עֲשֵׂה עַל הָאָב, שֶׁלֹּא חָשַׁב אוֹתָהּ הָרַמְבַּ"ם זִכְרוֹנוֹ לִבְרָכָה בְּמִנְיָנוֹ, וּכְמוֹ כֵן מֻזְהָר עָלָיו לְהַעֲבִיר הַבְּכוֹרָה מִמֶּנּוּ, וְעַל זֶה נֶאֱמַר (דברים כא טז) לֹא יוּכַל לְבַכֵּר אֶת בֶּן הָאֲהוּבָה וְגוֹ', וְזֹאת הָאַזְהָרָה גַּם כֵּן לֹא חָשַׁב אוֹתָהּ הָרַב הַנִּזְכָּר, אֶלָּא שֶׁכָּלַל הַכֹּל בְּמִצְוַת דִּין הַנְּחָלוֹת.
And it is practiced in every place and at all times by males and females. And one who transgresses it and commanded — whether he was healthy or on his deathbed — that the one eligible to inherit him, not inherit him, has nullified this positive commandment, provided that he commanded so, with an expression of “inheritance,” as we have said. And [this is true] even though his words have no substance, as we have written above at the beginning of the topic. And Ramban, may his memory be blessed, wrote that Rambam, may his memory be blessed, skipped two commandments, one positive commandment and one negative — and both of them are about the firstborn. As a man is commanded to recognize the firstborn by giving him double, and that is a positive commandment on the father that Rambam skipped. And so too, it warns him about transferring the rights of the firstborn from him. And about this it states (Deuteronomy 21:16), “he may not make into a firstborn the son of the beloved, etc.” And the teacher mentioned also did not itemize this warning [as a negative commandment], but rather grouped it all into the commandment of the law of inheritances.