10) The father’s creditors take precedence
Another takanah that Chazal made to aid girls in getting married was to award orphaned daughters an amount from their late father’s estate at the time of their marriage. The amount given is estimated according to our knowledge of the man and how much we can assume that he would have been willing to give his daughter at the time of her marriage. If we do not know him well enough, and he has not yet married off any other children (from which we could have had an indication of how much he would be willing to give), we award her ten per cent of the estate. This arrangement is known as Issur Nechasim Leparnasass Habass.
The Mahara”m Padua[56] was asked about the estate of a man who left a daughter to marry off, who had also given a Shtar Chatzi Zochor to another daughter. Does this daughter have to pay, from the share of the inheritance that she receives, a proportionate share of the Issur Nechasim to her sister, or does the burden of this obligation fall solely on the sons?
At first glance, he writes, the daughter need not pay anything. As we have already noted, she does not actually inherit her father. The sons are the sole inheritors, and the portion that daughter receives is given by them, not their father, in order to avoid paying the greater value of the debt. Sons who give away part of the estate cannot avoid paying the entire Issur Nechasim from the remainder of the estate.
However, the Mahara”m Padua notes that it is clear from the responsa of the Mahari”k[57] that the daughters who receive a share of the inheritance via a Shtar Chatzi Zochor do actually have to contribute their share towards the Issur Nechasim of any unmarried sisters. The Mahara”m Padua therefore offers two explanations for this.
Firstly, the text of the Shtar Chatzi Zochor awards the daughter “Chatzi chelek zochor – A portion equivalent to half that of a male inheritor.” Even if, technically speaking, the daughter does not actually inherit her father, it is clear that the father does not intend for her to receive more than half of that of the sons, and so she would have to contribute a proportionate share towards the Issur Nechasim, because otherwise the sons would have to pay it all and she would end up getting more than half of that which they received.
Secondly, although the Issur Nechasim is regarded as a debt on the estate, in certain respects it is to be regarded as a Yerushah – a part of the inheritance.[58] Just as if there was an extra son present, the daughter’s half-share would fall proportionately, so too the unmarried daughter who receives Issur Nechasim is considered as one of the inheritors and the daughter who has a Shtar Chatzi Zochor will see her share fall accordingly; in effect, she will have to pay a proportionate share of the Issur Nechasim, as the Mahari”k says.
There is a difference between the two reasons given by the Mahara”m Padua. According to the first reason, the daughter would have to contribute not only to any Issur Nechasim but also to any other creditor who claims a part of the estate as payment for a debt left by the father, in order that she should not receive more than half that of the sons. According to the second reason, however, it is only Issur Nechasim that affects the daughter, because it is viewed as being in effect an extra inheritor. Any other debts on the estate, however, should be paid exclusively by the sons, who are the actual inheritors.
The Remo”h seems to hold like the first reason of the Mahara”m Padua, because he rules[59] that a daughter who claims with a Shtar Chatzi Zochor must contribute proportionately to all creditors on the estate, and not just in the case of Issur Nechasim.
The Chavos Ya’ir[60] was asked about a case where the local Kehillah appropriated a part of a deceased man’s estate in lieu of various taxes. As we mentioned earlier, he ruled that the daughter who had a Shtar Chatzi Zochor need not suffer any loss as a result, as we award her a share according to the value of the estate at the time that her father died. It would seem that this ruling goes contrary to that of the Remo”h who would hold that in order for her not to end up with more than half that of the males, she should also contribute a share. However, the Chavos Ya’ir himself notes that his case is different from that of the Mahara”m Padua for a number of reasons.
The first reason he gives is that the Mahara”m Padua himself (in his second explanation) explains that an unmarried daughter who receives Issur Nechasim is to be considered an extra inheritor at the time the father died, and as such the daughter with the Shtar Chatzi Zochor loses proportionately, whereas in this case the Kehillah only appropriated their funds at a later date, by which time the daughter had already had a right to claim her share.[61] Furthermore, he adds, even if we were to consider the Issur Nechasim to be a debt on the estate, this case is still different because as we have said, the Kehillah claimed it only at a later date, by which time she had already assumed a right to her share. (It is apparent from his reasoning that the Kehillah were not claiming money because they believed that the father owed it to them but rather were taxing the inheritor’s property. This must be the case because otherwise there is no difference between this debt and the debt of Issur Nechasim.)
A further reason given by the Chavos Ya’ir is that, as we have mentioned, the Mahara”m Padua in his first explanation writes that in reality the daughter should not have to pay any part of any debts on the estate, seeing as she is not actually an inheritor, but rather receives a present, so to speak, in order that the sons need not pay the large debt owed to her. If she is not an inheritor, there should be no reason for her to pay off any debts on the estate. Nonetheless, she actually does lose proportionately, because it is clear to us (Umdenoh) that the father did not want her to receive any more than the equivalent of a half-portion of the sons, and that he intended, with this Shtar Chatzi Zochor, that she receive this after all debts on his estate have been paid off; otherwise she would end up with more than this amount. If so, says the Chavos Yair, this would only apply to debts that the father would have taken into account. In a case such as ours, however, when the Kehillah appropriated part of his estate, this was completely unexpected. Thus the father could not have taken it into account, and so we cannot say that the Shtar Chatzi Zochor implies that even in such a case the daughter should have to lose from the half-portion that was due her from his estate at the time he died.[62]
The Mahara”m Lublin[63] discusses a case where the sons paid off the daughter her half-share, and several years later a creditor of the father’s came to claim his debt from the estate. By then there was nothing left in the hands of the sons so he claimed from the daughter. The Mahara”m Lublin ruled that even if they had paid her the debt rather than given her the half-share, and even if they had paid the debt with land rather than moveable property [in general if a later creditor came forward first and claimed moveable property he could keep it; this is not so in the case of land, with which the earlier creditor always gets priority] and the father’s creditor’s debt preceded the one written in the Shtar Chatzi Zochor, nonetheless, since at the time she received her payment she left enough property for the creditor to claim his debt, there is no reason for her to lose if the creditor delays in coming until the rest of the property gets destroyed.
The Beis Meir[64] quotes this Responsum of the Mahara”m Lublin, but disagrees with the ruling. Even if a later creditor left enough property for the earlier creditor to claim, nonetheless if when the earlier creditor arrives there is nothing left, he may still go to the later creditor and claim his debt from whatever the latter had already received from the estate.[65]
Furthermore, the Beis Meir discusses the actual mechanism of the Shtar Chatzi Zochor. It is clear, he states, that the father’s real intention was for his daughter to receive a share of the inheritance, and the only reason that he wrote a bill of debt was because it was the only way to ensure that his daughter would receive her share in the inheritance. Certainly if they paid her her half-share, she would be obliged to contribute to paying off her father’s creditors, just as the sons are obliged, but even if they actually paid her the debt specified in the Shtar Chatzi Zochor, she could not ignore the creditors. As soon as it becomes apparent that others will lose as a result of her claiming the debt, the sons no longer have the choice whether to pay her her debt or her half-share. Since the main intention of the father was that she should inherit like her brothers, in this case any payments received by her are automatically considered to be given as a share in the inheritance, as the father wished, and as such the creditor can claim his debt from her as much as from the other brothers.
The Beis Meir seems to be extending the reasoning of the Mahara”m Padua. Not only if the brothers give her a half-share do we say that the father intended her to be no better than her brothers, but even if they paid her off the large debt instead, if other creditors will lose out the father would not want her to be any better off than her brothers, and the money she received should be considered as an inheritance (rather than a payment of the debt) from which the father’s creditors may claim their debts.
The Maharil[66] discusses a case where the sons did not actually give the daughter a half-portion, but rather came to a financial settlement, in which they gave her a sum of money and she agreed to forgo any further claims. Subsequently the local ruler demanded a sum of money to pay for taxes that the father had not paid. The Maharil ruled that the daughter’s portion remains unaffected by these payments to the ruler. This is not a contradiction to the Poskim quoted above, because in this case they did not actually give her the half-portion stipulated. The fact that they gave her a settlement instead of the Shtar Chatzi Zochor makes her no different from any other gift or transaction that they gave away from the estate, in which case the inheritors must pay any debts from whatever is left of the estate.
