A gift of personal property in a last will and testament. Modern English law and American law distinguish between a bequest and a devise; the former being a testamentary gift of personal property, and the latter one of real estate. This distinction, however, is based upon the feudal law, and does not exist in Jewish law. Real estate and personal estate may be the subjects of a bequest in Jewish law; and although there is some distinction recognized between these two classes of property by reason of the fact that one is movable and the other immovable, both of them may be bequeathed in the same manner. Subject to certain well-defined exceptions, modern law requires the bequest to be in writing. Jewish law has no such requirement; and an oral bequest may be entirely valid.
The maxim of the law is, "The words of a sick man are like those written and delivered" (Giṭ. 13a; B. B. 151a); that is to say, the oral bequest of a sick man is in effect equivalent to a gift of immovable property by a deed in writing, or of movable property by delivery of the object. The absence of the usual formalities required in the transfer of real and personal property does not invalidate a bequest. The Jewish law calls a bequest "the gift of one lying on a sick-bed" ("mattanat shekib mera' "), and distinguishes it in several points from the gift of a person in good health (B. B. 153a; Maimonides, "Yad," Zekiyah u-Mattanah, viii. 2; Shulḥan 'Aruk, Ḥoshen Mishpaṭ, 250, 5, 8).
Inasmuch as the validity of a bequest may depend upon the condition of the testator's health at the time when he made it, the law attempts to define the degrees of sickness. A blind, lame, or mutilated person, or one who is suffering pain in the head, eyes, hands, or feet, is for testamentary purposes the same as a person in good health; but if his entire body is weakened through sickness so that he can no longer walk about, and is obliged to take to his bed, he is technically a "sick man" (Maimonides, ib. viii. 1, 2).
The law considers a further distinction; namely, between one on his sick-bed and one on his death-bed; and this distinction also has certain important legal consequences. Some authorities are of the opinion that a person on his sick-bed is a "sick man" during the first three days of his illness; and that if the illness be prolonged beyond that period, or if he be suddenly stricken with a dangerous illness, he is to be considered as a man on his death-bed, and his bequest under such circumstances will be subject to certain special regulations (Shulḥan 'Aruk, Ḥoshen Mishpaṭ, 250, 5). The law of bequests is in fact a subdivision of the law of gifts, a bequest being to all intents and purposes a gift, distinguished, however, from an ordinary gift in that the strictness of the procedure is relaxed in favor of carrying out the intention of the testator.Bequest by Way of Gift, etc.
A distinction must be noted between a testament wherein the property is bequeathed by way of inheritance and one wherein the property is bequeathed by way of gift. By the former, only those persons may be made legatees who would naturally take the property as heirs of the deceased; under the latter, however, any person may be made a legatee.
The law of testamentary succession, as laid down in the Bible (Num. xxvii. 8-11; see Agnates), is un-alterable; and any attempt made by the owner of property to bequeath it as an inheritance to those who would not naturally inherit it is null and void. No one can be made an heir except such persons as are mentioned in this Biblical law; nor can the property be lawfully diverted from the heirs by the substitution, either orally or in writing, of some other person as heir (Mishnah B. B. viii. 5); but the owner of property has such control over it that he may dispose of it by sale or gift to any person, to the exclusion of his heirs. This important distinction, therefore, must be noted, that a bequest by way of inheritance to persons other than the legal heirs is null and void, whereas a bequest by way of gift is valid.
Although the testator can not make a stranger his heir, he may divide the inheritance among the heirs in shares different from those prescribed by the law. This right is deduced by inference from the text, "And on the day when he shall cause his sons to inherit" (Deut. xxi. 16), implying the right on his part to divide the estate among them as he pleases. The heirs may not be excluded by the use of negative phrases; for instance, if the testator says, "My first-born son shall not have a double share of my estate," or "My son shall not inherit with his brothers," such expression is null and void; but if he says, "My son A shall have half of my property and my other sons the other half," this is valid (B. B. 130a et seq.; Ḥoshen Mishpaṭ, 281, 1, 2).
This rule applies only to bequests by way of inheritance. A person in a state of health can not affect the succession unless he does so by a gift with all proper formalities (Ḥoshen Mishpaṭ, l.c. 5, 7).
If one bequeaths his property to a stranger under the belief that his son is dead, the bequest is invalid if the son afterward returns, because it is presumed that the bequest would not have been made to a stranger if the father had known that his son was living; but if the bequest is only of a portion of the property, it is valid, upon the presumption that it was intended to be a gift (B. B. 146b; Ḥoshen Mishpaṭ, 246, 1).
If a person bequeaths his entire property to one of his children, such one takes it as trustee for the benefit of all, and is entitled merely to an equal share with them; but if the father has bequeathed to him a portion only of the property, or if the instrument on its face shows that it was intended to be an absolute gift, he holds it free from all trust,as his sole and exclusive property (B. B. 131b, 150b; "Yad," Zekiyah u-Mattanah, vi. 2; Ḥoshen Mishpaṭ, 246, 4).
As above stated, by a bequest in the form of a gift the testator may practically disinherit his lawful heirs; hence, if a sick man in making a disposition of his property says distinctly, "I give this not as an inheritance, but as a gift," it is a valid bequest, even though it excludes the lawful heirs (Ḥoshen Mishpaṭ, 248, 2).Disinheriting the Heir.
Although the right of the owner of property to bequeath it to the exclusion of his heirs is recognized by the law, it is contrary to its spirit and is deemed a moral wrong. The Mishnah (B. B. viii. 5) says: "If one deeds his goods to strangers and excludes his sons, his act is lawful, but the spirit of the sages takes no delight in him." R. Simon ben Gamaliel said: "If, however, his sons were unworthy, his act is praiseworthy." Mar Samuel went so far as to say that the father can not disinherit a wicked son in favor of a good one (B. B. 133b). This, however, is not the law. The Shulḥan 'Aruk, after citing the general opinion of the Mishnah, says (ib. 282, 1): "It is the practise of the very pious not to witness a will by which the inheritance is taken from the heirs, even though it is taken from an unworthy son and given to another son who is a learned and upright man"; and R. Moses Isserles (ib. gloss) adds: "If one leaves general directions that his executors shall dispose of his property according to the best that can be done with it, they ought to give it to his heirs; for there is nothing better than this."
A bequest becomes valid only upon the death of the testator (B. B. 137a; "Yad," Zekiyah u-Mattanah, viii. 8; Ḥoshen Mishpaṭ, 252, 1); hence, if the bequest is coupled with conditions which are impossible of fulfilment after the death of the testator, it is invalid. Thus, if the testator's bequest is in writing, and the instrument contains the usual formula that symbolic seizure ("ḳinyan") has been made, but in fact this formality has not been complied with, such bequest is invalid; because it is impossible that the legatee should perform the ceremony of symbolic seizure with the testator after the latter's death (B. B. 152a; Ḥoshen Mishpaṭ, 250, 17).Death-Bed Bequests.
A distinction, alluded to above, in cases of bequests requires further amplification. The bequest may be either one in which the testator makes no mention of his death, or one in which he does expressly mention his death (B. B. 151b; "Yad," Zekiyah u-Mattanah, viii. 17-23; Ḥoshen Mishpaṭ, l.c. 7). In the latter case, the bequest, whether made orally or in writing, requires none of the formalities of a gift among living persons: all that is necessary is the simple declaration of the dying man, which is carried into effect through the maxim, "The words of a sick man are like those written and delivered" (B. B. 147b; Ḥoshen Mishpaṭ, l.c. 1; "Yad," l.c.).
Where the testator makes no mention of his death, a further distinction is to be noted; namely, whether he has bequeathed his entire property or only a portion of it. If he has bequeathed his entire property without retaining anything for himself, the presumption arises that he has given it on account of his anticipated death, and therefore it is a death-bed bequest; otherwise, it is presumed that the testator would not have given away his entire property. If, on the other hand, he has not bequeathed all of his property, but has retained a portion of it, a contrary presumption arises; namely, that he does not expect to die of this sickness. Such a bequest, therefore, is treated like a gift among living persons, and requires symbolic seizure in order to give it validity (B. B. 151b; "Yad," Zekiyah u-Mattanah, xv. 16; Ḥoshen Mishpaṭ, 250, 4-7).
If a sick man uses such expressions as "A shall have the whole of my property," or "a part thereof," or "shall acquire it," or "shall enjoy it," or "shall take possession of it," each of these expressions indicates a bequest by way of gift. If, in making the bequest to an heir, he says, "A shall be inscribed in my genealogical register," or "shall inherit from me according to law," it is valid as a bequest by way of inheritance according to the conditions above stated; but if he says, "Let A enjoy my property" or "Let him stand in it" or "rest in it," A acquires no property rights in it. If he says, "I leave my property to A," this is a gift: if he says, "My property shall fall to A," this is an inheritance (B. B. 148b et seq.; "Yad," Zekiyah u-Mattanah, ix. 3, 4; Ḥoshen Mishpaṭ, 253, 2).
A bequest of "my movable property" includes everything with the exception of wheat, barley, and other grain. A bequest of "all my movable property" includes all things except those which are fastened to the ground and not intended to be moved, such as the lower millstone. Technically these are fixtures, and go with the real estate. A bequest of "all my property that may be moved" is held to include even such fixtures (B. B. 150a; "Yad," Zekiyah u-Mattanah, xi. 12-14; Ḥoshen Mishpaṭ, 248, 10). A bequest of "my goods" includes all decedent's movable and immovable goods ("Yad," l.c. xi. 15; Ḥoshen Mishpaṭ, 248, 11). A bequest of "a piece of ground, and as incidental thereto, all my movable property, gold, silver, vessels, clothing"—in short, everything that may be denominated either money or goods—does not carry with it any other real estate, or slaves, or scrolls of the Law, because these are not acquired as an incident to other things. The use of the phrase "incidental to" ("aggab") is extremely technical. All sorts of personal property may be acquired without any special ceremony of symbolic seizure as incidental to land; but land can not be acquired as incidental to personal property (Ḥoshen Mishpaṭ, 248, 12; see Alienation).Bequest for Life, and "on Condition."
Where a bequest is made to A for life, and after his death to B, the latter is entitled to take only what is in existence at the time of A's death (B. B. 137a); but if A is a lawful heir of the testator, B receives nothing, because a gift made to an heir is presumed to be given as an inheritance, and an inheritance can not be diverted from the lawful heirand his descendants (B. B. 129b; Ḥoshen Mishpaṭ, 248, 1). If the bequest is to A, and after him to B, and after B to C, they succeed one another; but if B dies during the lifetime of A, the heirs of A inherit. If B, however, is living at the time of the death of A, he takes the property because A is entitled to its use for life only. If A has sold the property, he is guilty of a moral, but not of a legal, wrong; because, although he is only entitled to its use for life, B's right in the remainder is not a vested right, but is contingent upon the existence of the property at the time of A's death (Ḥoshen Mishpaṭ, 248, 3). If, however, the gift is specifically to A for a definite period, and after that to B, a purchaser from A takes no title to it, and at the expiration of the fixed period, B may recover the property from such purchaser (ib. gloss).
If a bequest is made "on condition," the condition must be fulfilled before the legatee is entitled to the bequest. If the testator says, "A shall marry my daughter, and he shall be given two hundred dollars," the condition is a condition precedent, and A can not receive the two hundred dollars before he marries the daughter (Ḥoshen Mishpaṭ, 253, 12).Specific and Demonstrative Bequests.
A specific bequest may be given to an heir in addition to that which he would otherwise inherit; if the sick man says, "Give my son A two hundred dollars that belongs to him," he is entitled to this sum as a specific bequest in addition to any other rights he may have in his father's estate ("Yad," Zekiyah u-Mattanah, xi. 16; Ḥoshen Mishpaṭ, 253, 8), and he may reclaim it if it has been disposed of by the heirs (Ḥoshen Mishpaṭ, 252, 2, gloss); but if the legacy was not specific and the heirs were merely charged with a moral obligation to carry out the will of the testator, their disposition of the property is valid (ib.). If the testator has given three legacies, and the estate is not sufficient to pay them all, they abate pro rata (B. B. 138a; "Yad," Zekiyah u-Mattanah, x. 13), unless he has indicated the order in which they shall abate (Ḥoshen Mishpaṭ, 253, 9).
If one bequeaths a specific sum of money, to be paid to the legatee out of a certain claim which is to be collected from a debtor to the estate, the bequest need not be paid until the debt is collected: this is a demonstrative legacy payable out of a certain fund (ib. 11). A specific bequest of two hundred dollars to the poor, or a scroll of the Law to the synagogue, is presumed to be intended for the poor of the community to which the testator belonged or for the synagogue which he was in the habit of attending (ib. 23). A specific bequest of a "share" of the testator's goods is generally taken to mean one-sixteenth, or, according to some authorities, one-fourth (ib. 24).
If one during his sickness has bequeathed his entire property to sacred or charitable uses, or has abandoned it all (see Hefḳer) and retained nothing for himself, and he afterward recovers, his acts are all voidable; but if he has retained anything for himself, his bequest is equivalent to, and subject to the laws of, an ordinary gift and can not be revoked ("Yad," Zekiyah u-Mattanah, ix. 19; Ḥoshen Mishpaṭ, 250, 3, 4).
A bequest of a claim against another person, or of an instrument of indebtedness held against another person, is valid even though none of the formalities required in cases of assignment of claims has been performed; provided, however, that the bequest was made in contemplation of death, or the testator parted with all his estate (B. B. 147b; "Yad," Zekiyah u-Mattanah, x. 2; Ḥoshen Mishpaṭ, 253, 20; see Assignment).
A bequest is revocable either by express words or by implication. Where the testator, after having bequeathed certain property to A, bequeaths the same property to B, the former bequest to A is impliedly revoked. If, however, the article bequeathed has been delivered, or symbolic seizure has been taken by the legatee, the bequest is irrevocable (B. B. 151a; Ḥoshen Mishpaṭ, 250, 13).Revocation.
A bequest made by a testator under the belief that he was about to die is revocable, no matter how formally made (Ḥoshen Mishpaṭ, 250, 14; "Yad," Zekiyah u-Mattanah, viii. 23). But in some cases it has legal effect even though it is revocable: thus, if the testator bequeathed his entire property to his slave, he may, upon recovery, revoke the bequest; but the slave remains a free man, because through the gift he has become free, and freedom once acquired can not be lost (Giṭ. 9a; "Yad," Zekiyah u-Mattanah, viii. 22; Ḥoshen Mishpaṭ, 250, 15; see commentary, "Beer ha-Golah," ad loc.). In case, however, the slave takes the bequest under the following form, "I bequeath my property to you from this day, in case I die," and the testator afterward recovers, the slave has not acquired his freedom; because the bequest was made specifically on condition of death, and, the condition not having been fulfilled, no property rights pass to the slave ("Beer ha-Golah," l.c.).
If a man is about to go on a sea voyage, or into the desert with a caravan, or is being led to a place of execution, or is suddenly stricken with a sickness that steadily grows worse, his bequests made under such circumstances are subject to the rules of death-bed bequests. If he dies, his bequest is valid; but if his life is preserved, it is revocable by him even though there has been "ḳinyan," and even though he has not parted with all of his property ("Yad," Zekiyah u-Mattanah, viii. 24).
- Shulḥan 'Aruk, Ḥoshen Mishpaṭ, §§ 250-253, 281 et seq.;
- Yad ha-Ḥazaḳah, Zekiyah u-Mattanah, vi.-xii.;
- ib. Naḥalot, vi.;
- Saalschütz, Das Mosaische Recht, pp. 826-829, Berlin, 1853;
- Bloch, Das Mosaisch-Talmudische Erbrecht, pp. 49-70, Budapest, 1890;
- Mayer, Die Rechte der Israeliten, Athener und Römer, ii. 478 et seq., Leipsic, 1866;
- Moses Mendelssohn, Ritualgesetze der Juden, iii., Berlin, 1778;
- Bodenheimer, Das Testament, Crefeld, 1847.