7) If the daughter dies in her father’s lifetime and leaves children

The Remo”h[44] considers a case of a Shtar Chatzi Zochor that was made out to the man’s daughter, with the clause that it should go to her or her descendants. In the event that she dies before her father, the Remo”h rules that although normally only sons inherit and not daughters, in this case all her children would share equally in the half-share of the grandfather’s estate that was due their mother. This is because the Shtar Chatzi Zochor says not that the share should pass to her “inheritors” (which would refer to sons only) but to her “descendants”, which includes all of her children.

The Ketzos Hachoshen[45] writes that the Remo”h should have pointed out (as implies the Mahar”i Weil, the source of this ruling of the Remo”h) that this applies only if the daughter predeceased her father. If the father dies first, however, the daughter automatically receives her due and when she dies it passes by way of inheritance to her sons only.

However, the Ketzos goes on to question the whole ruling of the Remo”h. How can the father give over with this shtar something to his grandchildren who are not born at the time the shtar is written? The Halachah states[46] that one cannot give something to someone who is not yet born! The only way, then that the grandchildren can get anything is by inheriting their mother, in which case only the grandsons get, and not the granddaughters.

The Nesivos Hamishpot[47], however, answers this with the point that we have mentioned several times. The Shtar Chatzi Zochor contains two parts; firstly a huge debt to the daughter (which obviously only her sons would inherit) and secondly a condition to the debt that if her brothers wish to give her a half-share in her father’s estate, the entire debt is annulled. It is this latter part to which the Remo”h was referring. If the woman’s brothers wish to avoid paying the large debt, they must pay her a half-share of their father’s estate and it is this share that is divided up amongst all the woman’s children. This they do not inherit from their mother (thus the girls also take a share) nor do they receive it from their grandfather (thus the problem of giving to one not yet born does not arise). Rather, they receive it as a payment from the woman’s brothers, to fulfil the condition stated in the shtar in order to avoid paying the large debt.

As such, says the Nesivos Hamishpot, there would appear to be a mistake in the standard text of the Shtar Chatzi Zochor quoted in the Nachalas Shivoh. The clause that states that “it” should be given to her or her descendants should be appended to the clause that mentions the condition of paying a half-share in the estate, and not, as stated there, the clause that discusses the large debt that the father admits that he owes his daughter.

One difficulty remains to be resolved, though. Since the Mahar”i Weil refers to the half-share in the father’s estate, why does he imply, as the Ketzos notes, that the woman’s daughters only get a share if she dies before her father? Even if the father were to die first, the daughter does not automatically get her share; it must be given to her from the estate by the sons, and until that point it belongs to them. If she were to die before receiving it, it would be paid by her brothers to all of her children just the same as if she were to predecease her husband. (This question requires further investigation.)

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