Question
We are four brothers and our parents passed away without leaving a will. The major asset that they left us is an apartment which we began renting out after our parents passed away. I am the first-born and am entitled to and will Be'ezras Hashem receive a double portion when the estate is settled. I want to ask if I am entitled to a double portion of the rent that is being collected.
Answer
In the previous article we assumed that rental income which accrues to the estate prior to its disbursement is classified as ro'uy to which the bechor is not entitled to a double portion. We discussed whether you are entitled to a double portion of the income that accrues to the estate after you request division of the estate's assets. We learned that the reason why perhaps you are entitled to a double portion of the subsequent income is that perhaps by requesting your extra portion you in a sense assume ownership of your extra portion even though the estate as a whole was not yet divided among the heirs. We mentioned that whether rental income that accrues to the estate prior to division is considered ro'uy is not obvious and requires careful examination, which we will presently do.
We note that if it is not classified as ro'uy then you are entitled to a double portion of the rental income even if you did not assume ownership of your extra portion at the time that you requested division of the estate. In this article we will examine whether rental income that accrues to the estate prior to its division is classified as ro'uy.
At first glance it appears that such income should be considered ro'uy since the money was not in your father's possession at the time of his passing. However, we find in the Gemoro certain instances where the bechor is entitled to a double portion even of an asset that never belonged to his deceased father. For example, the Gemoro (BB 123B) cites a Beraiso that if a person slaughtered an animal and, subsequent to a kohein's death, gave the leg, stomach and tongue to the deceased kohein's heirs, as Torah law requires, the bechor is entitled to a double portion if the owner of the animal regularly gave these portions to this deceased kohein (called makirei kehuno). In this case, even though the father never owned these portions, his first-born is entitled to a double portion.
Another case that the Gemoro (BB 124A) discusses is an asset whose value increased subsequent to the father's passing. The Gemoro cites the opinion of Rebbi that the bechor is not entitled to a double portion of the increased value only if the increased value is a result of the efforts of the heirs. If the intervention of the heirs was not material to the increase, the bechor is entitled to a double-portion of the increased value, according to Rebbi but the Rabbonon disagree.
The Gemoro records a Beraiso that rules that if the deceased father owned a cow that was rented out at the time of his passing, and subsequently the cow bore a calf, the bechor is entitled to a double portion of the cow and the newly-born calf, if the heirs were not responsible for the cow's sustenance. Many Rishonim, including Rashbam (124A af) and Tosafos (123B hoyeso), understand that when the Beraiso states that the bechor is entitled to a double-portion of the cow it refers to the rental payment for the cow that is paid to the estate by the cow's renter following the father's passing. However, there are opinions (e.g., Ritvo) that the Beraiso is not discussing rental income since that income has the status of repayment of a loan and not an ordinary increase in value. The Gemoro states that this ruling of the Beraiso is the opinion of Rebbi but the Rabbonon disagree and maintain that this income is ro'uy.
The Gemoro concludes by citing the ruling of Rav Popo that if the heirs inherited a small date palm that grew in height and girth subsequent to the father's passing, or land that became more fertile subsequent to the father's passing due to a river's flooding it, even the Rabbonon agree that the bechor is entitled to a double-portion of the added value. The dispute between Rebbi and the Rabbonon applies only if at the time of death, the inheritance contained wheat grass that was not yet for human consumption and later grew to full height, or a date palm whose dates were not fit for human consumption at the time of death and subsequently became fully-developed dates.
Finally, the Gemoro discusses whether one may follow Rebbi's approach and the consensus is that one must follow the ruling of the Rabbonon.
In light of these conclusions, the Rishonim discuss the issue of rental income.
The Tur (CM 278), based on the above, rules that the bechor is not entitled to a double portion of improvements that were made to the deceased's possessions post-mortem regardless of whether they were made by the heirs or happened by themselves. Therefore, he rules that even if the heirs spent assets of the estate to plant or improve their vineyard the bechor does not receive a double portion of the value added. Furthermore, even if they inherited a cow which had been rented out by their father to someone who was responsible for the cow's sustenance, the bechor is not entitled to a double portion from the calves that were born or from the value-added to the cow or from the rental income whether it was for the period prior to their father's death or subsequent to it. He follows this by recording Rav Popo's ruling concerning land and date palms.
The Tur then cites the approach of the Rambam (Nachalos 3,2). He writes that even though the Rambam agrees that the bechor is not entitled to a double portion of the post-mortem improvements, nevertheless the Rambam rules that if the orphans inherited an animal that was rented out by their father, the bechor is entitled to a double-portion of the animal and any calf that it bore. The Tur states that it seems that the Rosh disagrees with the Rambam. The Ra'avad in his glosses disagrees with the Rambam, commenting that the ruling of the Rambam is the opinion of Rebbi and we do not follow Rebbi.
The Ra'avad's question is very strong because the Gemoro itself ascribed this ruling to Rebbi. The Magid Mishne and others answer that the Rambam's approach is that the Gemoro only ascribed this ruling to Rebbi before it recorded Rav Popo's ruling. Once the Gemoro brings Rav Popo that even the Rabbonon agree that the bechor is entitled to a double-portion from some improvements, the Gemoro reverses its previous comment and now maintains that even the Rabbonon agree to this ruling of the Beraiso.
The SA (278, 4) rules like the Rambam. The Ramo cites the ruling of the Tur.
Thus, returning to your question, according to the Tur and Ramo the first-born is definitely not entitled to a double portion of any rental income that accrued to the estate prior to the bechor's acquiring full individual, legal ownership of the property. The question of whether the bechor is entitled to a double-portion of rental income prior to division of the estate is pertinent only according to the Rambam and the Mechabeir who follows him.
What the Rambam's ruling on rental income is, is controversial. The Sema (note 6) understands that even the Rambam agrees that the bechor is not entitled to a double-portion of the rental income because it does not meet Rav Popo's criterion for improvements for which the bechor is entitled to a double portion. However, the Lechem Mishna (Nachalos 3, 2) understood that the Rambam is ruling that the bechor is entitled to a double-portion of the rental income. He questions why this is true since rental income seems to be ro'uy. The Lechem Mishna answers that the reason is because a renter's liability for the rental payment is immediate and keeps accruing constantly throughout the course of the rental.
Later commentaries note many difficulties with this approach. We first note that if this is the correct approach then the bechor is only entitled to a double portion of the income for the period prior to his father's death.
The Ketsos (278, 2) asks that according to the approach of the Lechem Mishna the renter owed the father the rental money as a debt at the time of the father's death. However, the bechor does not receive a double portion of money from the collection of debts that were owed to their father. Thus the bechor should not be entitled to a double portion of rental income that was received following their father's death. Because of this, the Ketsos disagrees with the Lechem Mishna and rules that the approach of the Sema is authoritative.
The Nesivos (278, 1) cites both the Lechem Mishna and Ketsos and disagrees with both. He says that the pertinent issue is the rental income for the period following the father's death to which neither the Lechem Mishna nor the Ketsos applies. He says that the proper perspective is that rental income is an improvement of the property that was rented out and to decide whether the bechor is entitled to a double-portion we have to apply the criteria of Rav Popo. He concludes that, applying Rav Popo's rules, we conclude that the bechor is not entitled to a double portion since rental income is comparable to fruit that was borne by a tree after the father's death, from which the bechor does not receive a double portion according to Rav Popo. Therefore, the Nesivos too follows the ruling of the Sema.
We note that these poskim were discussing an animal that was rented out by the father and the only thing the orphans needed to do was to collect the rent. In your case the fact that the heirs needed to rent out the property is an additional reason you are not entitled to a double-portion of the rent.
The Rishonim (Ramban, Meiri BB 13A) discuss whether even after the heirs divide up the estate but agree to remain partners in an animal, perhaps the bechor is not entitled to a double-portion of the future rent since the animal is indivisible. However, in your case we are discussing rental income that accrued prior to any agreement to divide the estate. Therefore, these Rishonim are not relevant.
In conclusion: Almost all opinions maintain that the bechor is not entitled to a double portion of the rent for the period prior to his acquiring full individual ownership of the property.
