5) The exclusion of land and seforim
We have mentioned earlier that the standard text of the Shtar Chatzi Zochor included a clause that excluded the daughter from any rights to land and seforim.
The clause that excludes land uses the word “karka’os” – literally lands. R’ Akiva Eiger quotes his brother-in-law R’ Shimon of Ragzani as saying that this refers only to land and not to houses. This is because in general there is a difference of opinion in the earlier authorities as to whether things uprooted from the land and subsequently reattached have the same Halachic rules as land or not. A building could well be regarded as being made up of things that were originally part of the ground that were detached and subsequently reattached to the earth. Although in general with any doubt that arises as to the interpretation of the text of a shtar, we rule against the beneficiary of the shtar, in the case of Shtar Chatzi Zochor the standard text includes a clause that specifically calls for any doubts to be decided in favour of the daughter. In that case, the daughter will get a portion of any houses in the estate, because since it is unclear whether houses are included in the expression “Karka’os”, we would rule in favour of the daughter to say that they are not included in the clause that excludes the daughter from land.
R’ Akiva Eiger himself, however, disagrees. The general rule with inconclusive expressions in shtaros is to follow the accepted custom. Since it was universally accepted that the daughter does not get any portion in her father’s houses, it is clear that when he wrote that she should not receive any Karka’os he intended to include in this houses, whatever their Halachic status in other contexts. In interpreting the text of a shtar we generally follow the colloquial sense of the word, regardless of the fact that in another Halachic context it could be interpreted otherwise.
Teshuvos Chinuch Beis Yehudah adds another point. The clause that excludes real estate only refers to the home where the father lived; the daughter does, however, receive a part of any other property owned by the father. So too the seforim that are excluded refer only to the ones that he used himself. This must be so, reasons the Shev Yaakov, because otherwise the daughter of a man who was a seforim dealer, whose entire estate is in the form of seforim, will receive nothing! It is therefore reasonable to assume that only the father’s home and his own seforim are excluded; any other property or seforim are included in the Shtar Chatzi Zochor. With this they add a reason behind this exclusionary clause. A man’s primary bequest, they say, is his home and his private seforim. If we were to award these to the daughters, we would be uprooting his primary inheritance; furthermore this would disturb him most because these are the things that he would be most keen to ensure stay in the family, whereas if the daughter gets them, they will eventually pass on to her husband and his children. This reasoning does not apply to any other property, and thus the daughter would get a share of any other property left by her father other than his home.
R’ Akiva Eiger, whilst agreeing with the reason for the exclusionary clause, nonetheless points out that although the daughter may thus receive part of any property that was intended by the father for buying and selling, it does not follow that she should receive also receive a share of any property that the father owned as a long-term investment; such real estate might well be considered too as the primary inheritance of the father, and not just his home, if we apply the aforementioned determining criteria. Yet the Poskim quoted in Chinuch Beis Yehudah allow the daughters a share even in property owned by the father for the long-term that he rented to others, and exclude her only from the father’s actual home. Despite his objections, R’ Akiva Eiger adds that he does not wish to overrule the aforementioned Poskim, and he would advise the Dayanim to arrange some sort of compromise agreeable to all involved.
Based on the aforementioned reason for the exclusionary clause from land and seforim, namely that these are a man’s primary possessions and it would upset him if they would not stay in the family, the Chasam Sofer suggest that the clause referring to seforim was only applicable centuries ago, when seforim were individually written and were very valuable. Nowadays, however, when books are printed en masse, there is nothing particularly sentimental about a man’s seforim and there should be no reason why the daughter who has a Shtar Chatzi Zochor should not take a share in them. Nonetheless, the Chasam Sofer refused to deviate from the accepted practice of giving the daughter no part of any seforim.
The Shev Yaakov gives a different reason for the exclusion of seforim, namely that these belong only to the sons since they were purchased in order to learn Torah, which is a mitzvah that applies exclusively to males. A Sefer Torah, however, is not used to learn from directly, but is used for reading aloud in the synagogue. As such, it could be argued that the daughters may receive a part of it as part of their Shtar Chatzi Zochor.
Nonetheless, because the Sefer Torah is technically included in the term “seforim,” he did not wish to take it away from the sons. Still, the silver bells, the mantle and even the Atzei Chaim (wooden handles) of the Sefer Torah may be regarded independently of the Sefer Torah itself, and as such there is no reason why the daughter should not receive some part of them.
A final note on this subject from the Mahari”l. Although the accepted custom was to write this exclusionary clause in the Shtar Chatzi Zochor, if the father omitted it the daughter receives part of the real estate and seforim; there is no reason to assume that the omission was not deliberate.