When a sh'chiv me'ra says: "This property of mine should be given to banai," his daughters are not included among the recipients. Even when the descendants of the sh'chiv me'ra include only one son and a daughter, or one son and the son of another son, and he used the expression banai - which is a plural term - the estate should be given to his son alone. For one son can be referred to as "my sons."
When a sh'chiv me'ra says: "My property should be given to Tovia," and then dies, and a person named Tovia comes and claims the estate, it should be given to him. If, however, it is established that the claimant is referred to as "Rav Tovia," the estate should not be given to him. Nevertheless, should the sh'chiv me'ra be familiar with the claimant and be on first name basis with him, the estate should be given to him although he is generally referred to as Rav Tovia.
The following principles apply when two claimants come, and it is established that they are both called Tovia. If one of them is a Torah scholar and the other is not, the Torah scholar receives precedence. If neither of them is a Torah scholar, but one is a neighbor or a relative, the neighbor or relative receives precedence. If one is a neighbor and the other is a relative, the neighbor is given precedence. If both of the claimants are relatives, neighbors or Torah scholars, the judges should act on their own assessment of the circumstances; the estate should be given to the claimant whom they think the deceased intended. Similar principles apply if there are several intended recipients.
If a sh'chiv me'ra says: "My property should be given to so and so, to so and so, and to so and so," the intended recipients should divide the estate equally. This applies even if 100 people are mentioned.
When a sh'chiv me'ra says: "My property should be given to so and so and to my sons," the estate should be divided between them. The person named receives half, and all his sons together receive the other half. An incident occurred concerning a person who told his wife: "My property should be given to you and my sons." Our Sages said: She should receive half of the estate, and all the sons should divide the other half.
👦 Sons vs. Children
'Banai' means sons only — daughters are excluded. When two people share the same name, the one who comes first and establishes his identity takes the gift. Multiple recipients listed together share equally.
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Meaning of 'A Portion' and Specific Proportional Terms
If a sh'chiv me'ra says: "My property should be given to so and so, to so and so, and to the sons of so and so," the sons of so and so receive half of the estate, and the other two people mentioned receive the other half.
When a sh'chiv me'ra says: "So and so should receive a portion of my property," he should receive half. When he says: "Give a portion of my property to so and so," he should be given one sixteenth. There are, however, those who maintain that he should be given one fourth of the estate.
If a sh'chiv me'ra says: "Give so and so a portion of the wine that I possess," the person named should be given one fourth of the wine. If he says: "Give him a portion of the wine to pour into jugs," he has diminished that person's share, and the person named should be given one eighth of the wine. If he says: "Give him a portion of the wine for cooking, the person named should be given one twelfth of the wine. If he says: "Give him a portion of the wine for a small cup, the person named should be given one sixteenth of the wine. For he revealed that his intent was to give him merely a small portion.
One should not extrapolate from the measures mentioned with regard to any other matters.
📐 What Is 'A Portion'?
'Give him a portion' means half. 'Give him a third' or 'a fourth' are taken literally. 'Give him a portion like one of the sons' means exactly one equal son's share. These proportions apply to specific items and are not interchangeable across domains.
When a sh'chiv me'ra says: "Let my wife receive a portion like one of the sons," she should be given a portion the size of that given to each of the sons. If sons are born to the deceased after he has made this deposition of his property, they are added to the sons who existed at the time the will was made, and she receives a portion equal to that given to each of them. What is implied? If the sh'chiv me'ra had three sons at the time he made his will, and two more sons were born to him afterwards, she should receive a portion equal to that given the five sons - i.e., one sixth of the estate.
The widow receives a portion only from the property that the deceased owned at the time he made his will. She does not receive a portion of any property he acquires after the will was made. The rationale is that a person cannot transfer ownership of an entity that is not in his possession.
👩 Wife as Heir-Like Recipient
If a dying man says 'give my wife a portion like one of my sons,' she receives a son's equal share — but only from property he owned at the time of the will, not from assets acquired afterwards.
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Movable Property, Special Items, and Burial Instructions
When a sh'chiv me'ra says: "So and so should receive movable property that I own," the person named should receive his personal utensils. He is not, however, given wheat, barley or other similar entities that the deceased owned. If, however, he says: "...all the movable property that I own," the person named receives everything.
When a sh'chiv me'ra says: "Give my property to so and so," that person receives all his movable property, all his landed property, the garments, the servants, the livestock, the fowl, the tefillin and the other sacred texts; for these are all considered to be property. There is, however, an unresolved question of whether or not a Torah scroll is considered to be "property." Therefore, if the recipient takes possession of it, it should not be expropriated from him.
When a sh'chiv me'ra says: "Give 200 zuz to so and so, my firstborn, as is appropriate for him," he should be given that sum as well as his portion as a firstborn.
In the above situation, if the sh'chiv me'ra said: "Give him 200 zuz as his firstborn portion," the firstborn is given the option: He may take his firstborn portion, or he may take the 200 zuz.
Similarly, if the sh'chiv me'ra said: "Give 200 zuz to my wife so and so, as is fitting for her, she receives that sum and the money due her by virtue of her ketubah. lf he said: "Give her 200 zuz for her ketubah" the option is hers.
If the sh'chiv me'ra said: "Give 200 zuz to so and so, my creditor, as is fitting for him," he receives that sum and the money due him because of the debt. If he said: "Give him 200 zuz for his debt," he may collect only his debt.
If a sh'chiv me'ra said: "Give 400 zuz to so and so and let him marry my daughter," it is as if he gave him two gifts. Whichever he desires, he may take. Therefore, if he desires to take the money but not to marry the daughter, he may do so. If, however, the sh'chiv me'ra said: "Let him take my daughter and give him 400 zuz" he is making the gift conditional. The person mentioned does not acquire the gift unless he marries the daughter.
The following principle applies if a sh'chiv me'ra said: "Give 400 zuz to my daughter as her ketubah" or "...for her ketubah." If it is the custom of the people of that city to add to the appraisal of the dowry and to write a maneh's worth as 200 zuz, the daughter should be given only 200 zuz. For the sh'chiv me'ra did not say "400 zuz" without any modifier, but rather "400 zuz as her ketubah." It is as if he said: "Give her what is necessary so that her ketubah will be appraised at 400 zuz."
If a sh'chiv me'ra said: "Give such and such clothing and such and such articles to my daughter for her dowry," and the price of the garments and the articles decreases afterwards, the heirs profit, and they are required to give her only what she was promised according to the lesser price. Similarly, if a sh'chiv me'ra said: "Give my daughter the 400 zuz, the money from this wine," and the price of wine increases, the heirs profit, and the daughter is given only 400 zuz. An incident occurred concerning a person who was being led off in fetters. He said: "Give so and so 400 zuz from the wine in this and this place." Our sages said: "He should receive 400 zuz from the price of that wine." The condemned man did not intend to give the person named an amount of wine equal in weight to 400 zuz. He intended to give him the monetary amount. He specified the place from which he could collect the money to strengthen the legal power of the recipient. Another incident occurred concerning a man who said: "Give my daughter the date palm," but he left only two halves of a date palm. Our Sages said: "She should receive the two halves of the date palm, for that was his intent. He called them a date palm." And another incident occurred concerning a person who said: "Give so and so a building that contains 100 korim." It was discovered that the building owned by the person who apportioned his property could contain 120 korim. Our Sages said: "He acquires that house, because it appears that this was his intent." For everyone who gives a gift gives generously. The same applies in all analogous situations.
When a sh'chiv me'ra says: "Give my sons a shekel each week," or even if he said: "Do not give them anything but a shekel each week," and it is discovered that a sela a week is necessary to meet their needs, they are given whatever they need. We assume that his intent was not to starve his children, but to encourage them not to live on a very lavish budget.
When a sh'chiv me'ra orders: "Do not eulogize me," he should not be eulogized. If he says: "Do not use funds from my estate to bury me," his words are not heeded. We do not enable him to secure the funds of his children and make himself a burden on the community. For it is forbidden to leave him without a burial. Instead, we compel his heirs to bury him from the funds in his estate.
🪑 Movables, Mills, and More
Servants are movable property; lower millstones are not. 'Everything that can be carried' extends even to millstones. Specific phrases like 'firstborn portion,' 'fitting for him,' and 'as is fitting for her' each carry technical legal meanings determined by context.
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🎓 Key Principles
Chapter 11
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'Banai' Means Sons, Not All Children The Rambam rules that when a sh'chiv me'ra says 'my property should go to banai,' daughters are excluded. The word banai in this context refers specifically to sons unless context indicates otherwise.
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'A Portion' Without Specification Means Half When a dying man says 'give so-and-so a portion,' he means half of the relevant estate. More specific fractions ('a third,' 'a fourth') are taken at face value. The default meaning is always half.
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Phrasing Controls the Amount Received Whether someone receives the stated amount or gains additional rights depends on exact phrasing. 'As is fitting for him' alongside a number typically means the stated sum is his full share; other formulations may confer additional rights.
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Burial Instructions Override Estate Distributions A sh'chiv me'ra who orders 'do not eulogize me' or 'do not spend from my estate on my burial' is obeyed. His wishes regarding his burial take legal effect and are not overridden by heirs.