6) “Ro’uy” – If the father died in his father’s lifetime
What if the father died in his own father’s lifetime? Does the daughter also receive a share in the estate of her grandfather when it is divided up amongst his grandsons, even though her father never actually received it in his lifetime?
This type of property is referred to in Halochoh as “Ro’uy” – property that was due to come to the father but never actually did in his lifetime. The standard text of the Shtar Chatzi Zochor contained a clause that expressly awarded the daughter a half-share in all of the property of the father, including Ro’uy, and so it would seem that this would enable the daughter to receive a share in her grandfather’s estate.
The She’eris Yosef, however, ruled that in this case, the daughter does not receive a share in her grandfather’s estate. He bases this ruling on the Gemora that states that in certain respects a grandson can claim to inherit his grandfather directly (if his father predeceased his grandfather); as such, the estate came directly to the grandchildren, and not via the father, in which case the daughters, whose claim is on the father’s estate, receive no share in the grandfather’s estate. Furthermore, Tosefos (in one opinion) explains that the aforementioned Gemora holds that a creditor may claim from Ro’uy – property that fell to his debtor after the latter’s death – and yet may still not claim from a debtor’s father’s estate if it falls directly to his grandson. If a creditor who is Halachically entitled to claim from Ro’uy nonetheless cannot claim from such property, there is no reason why a daughter who wishes to claim with a Shtar Chatzi Zochor should fare any better.
The Remo”h, in a Responsum, notes that there is a difference of opinion amongst the Rishonim as to how to explain this Gemora, and according to some opinions, it comes out from the Gemora that those who are awarded Ro’uy would actually receive a share in the grandfather’s estate. Seeing as there is a difference of opinion, we would have to rule in favour of the sons, for lack of the necessary proof to take away from their rightful inheritance.
Nonetheless, the Remo”h still awards the daughter a share in the grandfather’s estate for the following reason. As we have explained, the Shtar Chatzi Zochor is actually a shtar concerning a very large debt, with the condition attached that if the sons give the daughter a half-share in the estate, they will be released from the debt. The fulfilment of this condition is a matter that concerns the sons and the daughters; any payment given to the daughters comes direct from the sons and not the father. Thus even if the grandfather’s estate never came to the father in his lifetime and thus can be considered a weak form of Ro’uy, nonetheless, in order to fulfil the condition the sons would have to give the daughters a share. Even if the condition had specified giving their own money, they would have to give that as well, if they wished to avoid paying the debt! Since the Shtar Chatzi Zochor specified that the condition includes the daughter receiving a share of all the father’s estate including Ro’uy – property due to come to him – they will get a share in the grandfather’s estate too even though the father never received it himself. Even concerning something that the father never owned to give away, he can nonetheless make a condition that it must be given before the debt is annulled. (In fact, as we mentioned earlier, it is this mechanism that enables the father to give the half-share to his daughter in the first place, including even property that he did not own at the time of the writing of the Shtar Chatzi Zochor but that would come to him later.)
The Remo”h goes on to say that seeing as he has seen someone ruling contrary to the above (an apparent reference to his brother-in-law, the She’eris Yosef, mentioned above) he would add a number of points.
The She’eris Yosef had written that even though the Shtar Chatzi Zochor contained a clause specifically including Ro’uy, we could still interpret it to refer to better forms of Ro’uy, such as property that the father gained after writing the Shtar Chatzi Zochor, rather than interpret it to refer to even the grandfather’s estate.
To this the Remo”h responded that it would appear from the Gemora elsewhere that this type of Ro’uy is actually considered more belonging to the father than other types (the reader is referred to the responsa of the She’eris Yosef and the Remo”h for a detailed discussion on this point.) Furthermore, even if we were to be in doubt as to what this clause was referring to, we would still rule in favour of the daughter. Although generally when in doubt as to the interpretation of a shtar we rule against the one who stands to gain from the shtar, the Remo”h writes that this is only when the expression in the shtar could be interpreted a number of ways. In this case, however, the phrase “Ro’uy” is all-inclusive in its simple interpretation, and there is no reason to limit it.
Furthermore, the doubt here is in the terms of the condition attached to the debt. In any such case it would be up to the sons to prove that they had fulfilled the condition. Until they have done so, the debt will stand, and they will be obliged to give the daughter the entire debt.
Lastly, as we have pointed out, the Shtar Chatzi Zochor contained a clause expressly instructing that any doubts in the interpretation of the shtar should be determined in favour of the daughter.
[The She’eris Yosef added another reason to rule against the daughter. Although the father added specifically that the daughter should get a share also in Ro’uy, he surely did not refer to his own father’s estate passing to his grandsons after his own demise, because he would surely not have imagined that he would die in his father’s lifetime. The Mahara”m Padua wrote a response to the She’eris Yosef, and amongst the points raised, he noted that unfortunately all too often sons die in their father’s lifetime. The She’eris Yosef responded that nonetheless, it is less likely to happen than the other way round, and so presumably the girl’s father would not have had it in mind.]
The Mahara”m Lublin also discusses this question at length, and rules that if the grandfather died only after the sons had paid the daughter her share in the father’s estate, the daughter surely gets nothing from the grandfather’s estate. The father intended only that the daughter receive a share in Ro’uy that could be accounted for at the time that the sons paid her, and not anything that would come afterwards. If, however, the grandfather died before the father’s estate was divided up, the daughter is entitled to a share in this property. (Nonetheless, the debt mentioned in the Shtar Chatzi Zochor is not paid from Ro’uy, and so if the father left only a small inheritance, the sons could choose the option of paying off whatever they could of the debt with the father’s inheritance, keeping the grandfather’s inheritance for themselves, rather than choosing the option of giving her the half-share in the estate, in which case they would have to give her from the grandfather’s estate too.)
A final note on this point. If the Shtar specified that the daughter receive her share according to the value of the estate at the time the father dies (as the Chavos Ya’ir says – see section 9) below) this whole discussion would be redundant, because in that case the daughter cannot receive a share in anything falling to the father after his death. Presumably we would then interpret the inclusion of “Ro’uy” to refer to unclaimed debts owed to the father.