We are two brothers and we just finished the shloshim for our father. My older brother, the bechor, did not get along with our father and even took him to a din Torah about a purported loan that he extended to our father but he had no proof to justify his claim and therefore, was unsuccessful in his din Torah. Our father wanted to be buried in Eretz Yisroeil and purchased a burial place there. My brother told me that he will not pay anything for the cost of burying our father in Eretz Yisroeil and if I bury him there, as I did, it will come out of my share in the estate. To top it off he also claimed that the burial plot is part of the estate and he is entitled to two thirds of the value and I get one third! Are his claims valid?
In the previous article we saw that your brother’s arguments are incorrect. Neither you nor your brother have any control over the assets that your father left behind that are needed for his burial in the manner he desired, and they must be used as he requested.
We further saw that in order to arrive at this conclusion it was not necessary to consider that the dead person retains ownership of any asset, but it suffices if we view inheritance as a continuation of the deceased’s ownership and the deceased is able to retain a degree of control over the assets that he bequeathed.
However, we will see in the present article that, while the understanding that inheritance is a continuation of the deceased’s ownership is correct, in the case of assets that are needed to honor the deceased, according to many including the ruling of the Ramo, the assets are not even inherited by his heirs. The source for this approach is an authoritative ruling of the Rashbo (Res 1, 375).
The Rashbo was asked to decide a dispute concerning a person who gave another person money and told him to use this money to purchase a monument for someone who was deceased. Then, before the money was actually used, the donor asked for the money back. The donor claimed that he was entitled to the money since the deceased could not acquire the money. (If the recipient had been alive, the donor certainly would not be entitled to the money because it immediately became the property of the recipient by means of zechiyo.)
The one who received the money on behalf of the deceased claimed that we see from the Mishnah in Shekalim (about excess tsedokoh collection that we studied two weeks ago) that a deceased person acquires the money that was donated for him. His proof is that there is a dispute in the Mishnah over what to do with excess money that was collected for the needs of a dead person. The Tana Kama rules that it goes to the heirs and Rav Nosson rules that we should use it in some manner that honors the dead person for whom the money was collected. The litigant understood that according to both opinions the dead person acquired the assets and the dispute is what is the best thing to do with the collected assets that were superfluous, whether to use them to give additional honor to the deceased or to give them to his heirs.
The Rashba agreed that this Mishnah is proof that the donor is not entitled to have the money returned. However, in this responsum he does not say explicitly that the money was acquired by the dead person. Rather he says that since the gabboim received the money in order to use it to honor the deceased individual, this money must be used in that manner, according to Rav Nosson. The reason the Tana Kama disagrees and rules that the money goes to his heirs is because the money was not needed for the deceased’s honor. The ruling of the Rashba is ruled by the Ramo (CM 210, 3).
Before we discuss how the poskim understood the Rashbo, we should note that in any case this ruling is another clear proof that your brother’s claims are invalid. We see that even money that was only donated by others for the deceased’s honor must be used for these needs, so certainly money that he himself set aside for this purpose must be used for these needs.
The Machane Efraim (Zechiya Umatono 31) proves that the Rashbo cannot mean that the deceased acquired the money that was collected for his monument since the Rashbo himself (commentary to Gittin 14B) writes that if A gave money to B on his deathbed but it turns out that B predeceased A, then the money must be returned to A because B never acquired the money since a dead person cannot acquire assets. Therefore, he understands that the reason the one who gave money for a monument cannot renege on his commitment is because he committed the money for a mitzva and it has the status of a vow, which one may not rescind.
Rav Elchonon Wasserman (Kovetz Shiurim BB 463) however, argues that the Machane Efraim’s understanding of the Rashbo is incorrect because the Rashbo in his commentary (BB 8B) states explicitly that the reason the excess money that was collected for a dead person goes to his heirs is that the deceased acquired these funds and his children inherit him. The Rashbo proves that this is the correct explanation because otherwise how can the excess money be given to the children since perhaps the children are wealthy and the people who donated the money used their tsedoko money. Therefore, it must be that the money was acquired by the deceased who was worthy of receiving tsedoko money and his heirs inherit him. He deems the money an ordinary possession of the deceased and his heirs since he says that if one diverts the money from them, he is a thief from the deceased and the heirs.
Rav Elchonon explains that the notion that a deceased person can acquire assets applies only to assets that are needed by the deceased. With this he refutes the Machane Efraim’s proof from the Rashbo’s statement that when a person gives money to a deceased person, he does not acquire the money because a dead person cannot own anything, because that money was not needed by the deceased.
We note that the interpretation of Rav Elchonon is supported by the Ramo (CM 210, 3) and Levush who cite this responsum of the Rashba and use the terminology that the deceased acquired the money.
The Mishpotecho Leyakov (11, page 236) explains that the concept of ownership by a dead person is not identical to the concept of ownership by a live person. In several places the Gemoro states that a person owns something even though it is not fully his. The reason the Gemoro calls it a possession is because it has several characteristics of a possession even if it is not a possession in the full sense of the term.
One example where one is called an owner even though it is not fully his, is a craftsman who improved a person’s object. The Gemoro cites an opinion that the craftsman is the owner of the improvement that he made on someone else’s object. The Rishonim (Rosh, Rashba whose opinions are explained by the Ketsos (306, 3) and Nesivos (306, 4)) explain that this is only a limited form of ownership.
Another place where we see that a dead person owns what is needed for his honor is in a responsum of the Radvaz (2, 741) who was the Rav in Egypt where people would steal grave monuments and resell them. He forbade buying a used monument even if it was from a gentile grave since the monument was stolen from the deceased and one may not steal from gentiles either.
Another place the Gemara states that it is forbidden to take away something that serves to honor the dead is where someone placed a cloak on a dead body and the Gemara (Yevamos 66B) says that no one may afterwards use it for himself because it was acquired by the deceased. Still another example is the Sifrei (Devorim 19, 14) which states that one who sells his personal burial plot located in a family burial plot is guilty of violating the injunction of lo sasig-a prohibition to steal land. The reason is that his burial plot serves to honor his deceased family members who are buried in this plot since it is an honor for them if he is also eventually buried there. The Gemoro (Mo’ed Katan 26B) even says that if a relative pretends that he tore his garment upon his relative’s death by wearing an already torn garment, he is stealing from the deceased since he is not giving the deceased the honor he deserves.
Rashi (Yevamos 66B) explains that the source that a dead person owns money and objects that serve to honor him like shrouds is derived from the Torah’s law that one is not allowed to derive benefit from them just like one is not allowed to derive benefit from hekdeish-assets that were set aside for the needs of the beis hamikdosh. The Kol Mevaseir (Rothe vol 1 res 1 page 12) explains that the basis for the prohibition to derive benefit from the property of hekdeish is because it is theft. So too the prohibition to derive benefit from assets that were designated to honor the deceased is also theft.
In another responsum (1, 56) the Kol Mevaseir wrote against a lower court ruling of the rabbinate in a case that was very similar to yours. A lady left money in her bank account and asked to be buried in Eretz Yisroel, but her daughters, who were her heirs, wanted to keep the money for themselves and bury her in chutz lo’oretz. The lower court ruled that the mother’s wishes did not have to be heeded since she did not give someone the money to hold expressly for this purpose. This is normally the criterion for invoking the rule that mitzva lekayem divrei hameis-it is a mitzva to fulfill the instructions of the deceased.
The Kol Mevaseir begins by refuting this decision based on the ruling of the Rashbo that was cited in the previous article that the wishes of the deceased concerning his place of burial must be followed. He also explains that the lower beis din misapplied the rule that a deceased’s instructions must be heeded only if he left money with someone for this express purpose, since in the case at hand the money was to honor the deceased herself in the manner she desired. He says that the rule applies to instructions that the deceased gave his heirs about how to spend the money that they inherited on others. In contrast, the money that the deceased left that is needed to honor himself in the manner he desires remains his, and his heirs do not inherit this money. Therefore, his wishes must be honored even though no one was given any money to hold.
We note that the appeals court of the Rabbinate (recorded in the Osef Piskei Din volume 2, page 62) decided like the Kol Mevaseir and overturned the lower court’s ruling.
Another practical application of the concept of theft from the dead which is relevant to your case is the ruling of the Ramo (OC 291, 2), based on the Medrash, that one may not drink water from a river during bein hashemoshos at the end of Shabbos because the water is needed (to drink) by the dead who are returning to Gehinom. In fact, the Rashbo (res 1, 1119) cites a Yerushalmi that someone violated this ruling and the malach hamoves (the angel of death) killed him for it because he stole from the dead!
In conclusion: In the previous article we learned that your brother’s arguments are totally wrong because inheritance is a continuation of the ownership of the deceased and therefore, your father retains a degree of control over these assets and his wishes must be honored. In this article, we saw further that according to many, and that is the ruling of the SA, your father still retains ownership of the possessions of his that are needed to give him the honor. What your brother is actually trying to do is to steal from your late father. We saw further that stealing from the dead can have serious undesirable consequences, even consequences that are more serious than stealing from the living!