11) Paying the creditors so that the daughters lose everything
We have already mentioned that a daughter who claims with a Shtar Chatzi Zochor gets no share of any land left by her father. If the father left land and moveable property, and the sons wish to pay off their father’s creditors with the moveable property, in order that they will be left only with land, and in this way the daughter will not be able to claim anything, they are entitled to do so.[67]
The She’eris Yosef[68] goes a step further. What if there were several daughters, and the sons decided that rather than award each daughter a half-share in the estate, they would instead pay off the entire debt that was written in the Shtar Chatzi Zochor to one of the daughters? In this way, there would also be nothing left for the other daughters. (Although the sons would lose either way, they may be tempted to come to an agreement with this one daughter to award her the large debt, if she would agree to share it with them afterwards, thus bypassing all the other daughters.) The She’eris Yosef[69] rules that they are entitled to do so.
The Chelkas Mechokek[70] quotes this ruling, but he adds that he finds it difficult to justify. In the first case, the creditors may be paid with either land or other goods, and it is certainly within the rights of the inheritors to decide which to pay. In the second case, however, the Shtar Chatzi Zochor includes a clause that allows the inheritors to pay a half-share of the estate in order to be released from the debt, and as such they should surely be obliged to make use of that option rather than cause the other daughters to lose their claim.
The Beis Shmuel[71], however, concurs with the She’eris Yosef. The fact is that the Shtar Chatzi Zochor clearly gives the right to the inheritors to decide either to pay the huge debt or to give her a half-share, and there is no obligation upon them to choose one option over the other. (He also brings a proof to this from a similar ruling elsewhere in Shulchan Aruch.)
The Shvus Yaakov[72] also discusses this case but concurs with the Chelkas Mechokek for the following reason. The other daughters can claim to the sons that any way that you look at it, they the daughters gain. If we are to be considered as creditors, they may say, then you have no right to give away the entire estate to our sister, who is no more a creditor than we are. If, on the other hand, we are to be considered as inheritors, then we are partners in this estate and you have no right to pay up the debt (rather than give her a half-portion) without our consent.
This second side of the argument, though, is surely debatable. As we have noted, the daughters are not inheritors, and therefore they cannot dictate to the sons what to do with the estate. The first part, too, does not necessarily follow. It is true that we consider the daughter to be a creditor, but that does not mean that the sons cannot first pay another daughter, who is also a creditor. Firstly, the Halachah is[73] that the one whose shtar is dated earliest is given first rights in claiming the debt, and so the sons could surely pay the oldest daughter the entire estate in lieu of her claim. Furthermore, this was only in the times of the Gemora, when debts on a deceased man’s estate could only be claimed from land[74]. Nowadays (since a Takanah of the Geonic period) debts can also be claimed from any movable goods in the estate, and in that case the rule is that no one takes precedence. The Shulchan Aruch seems to be of the opinion[75] that in such a case, if any of the creditors came forward before the others and received all his dues, he could keep it regardless of whether there would be nothing left for anyone else. In that case, the sons could pick any daughter and pay her the entire sum!
However, the Sm”a[76] rules that even the Shulchan Aruch agrees that if all the creditors were to come together, the property should be divided out proportionately amongst the various different creditors. As such, the Shvus Yaakov may be justified in saying that the daughters could prevent the sons from giving all the estate to one daughter in lieu of her debt, but only with regard to the movable goods that the man left, and only if all the daughters were to make their claim before the sons awarded one of them the entire debt. If one of them came forward first, though, and in the case where he left land even if they all came together, the sons would seem to be justified in paying one daughter her entire debt, rather than giving her a half-share in the inheritance, and even if it meant that the other daughters would lose out entirely.
