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Inheritance Intervention

Rav Moshe Taragin
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            The mishna in Bava Batra (130a) cites an interesting position of Rabbi Yochanan ben Berokah regarding the mechanics of inheritance.  Typically, inheritance occurs automatically without the intervention or initiative of the deceased.  In fact the mishna in Bava Batra (126b) claims that a person cannot intervene by redirecting the flow of inheritance; attempts to reconfigure the dynamic of inheritance are considered 'matneh al ma she-katuv ba-Torah' (stipulating conditions which clash with Torah laws) and fails.  Of course, a person may always circumvent inheritance by allocating his estate prior to death as 'awards' (matanot) independent of yerusha (inheritance).  These efforts, however, require a separate act of kinyan – many times requiring an actual execution of a maaseh kinyan.


            Rabbi Yochanan ben Berokah, however, noticed an interesting word which modifies the inheritance process: Parashat Ki Tetze alludes to the laws of first born and the extra portion he merits.  While describing the process the Torah portrays: 'on the day in which HE DELIVERS INHERITANCE [he should deliver appropriate portions to the bekhor]' (see Devarim 21:16).  By employing this verb, the Torah may be hinting to an active role for the deceased in directing inheritance.  In theory, this active role may be limited solely to the extra portion of the bekhor – a delivery over which the father may have greater influence.  However, Rabbi Yochanan ben Berokah asserted that a person wields some degree of authority in directing and configuring the broader inheritance.  He may spotlight a particular relative and award them disproportionate inheritance.  As the gemara (Bava Batra 130) records 'this [phrase "hanchilo" (to award inheritance)] teaches us that a father can deliver inheritance to those he chooses.'




            The exact mechanism of this reconfiguring of yerusha remains unclear.  The father could be merely identifying the 'yoresh' thereby redirecting the Torah-driven process of yerusha.  This model would view the overall process as roughly similar to classic yerusha.  Rabbi Yochanan ben Berokah empowers a person to 'chose' or 'select' his preferred yoresh.  After identifying that relative as the prime yoresh, typical Torah-driven yerusha commences, without any further role for the deceased.


            The language of the pasuk though, may evoke a very different model.  Perhaps, the person is not merely identifying a yoresh, but actually driving the process of yerusha.  Without intervention yerusha occurs automatically and is shaped by the Torah's 'pecking order.'  However, the Torah authorizes a person to replace the Torah-driven inheritance process with a yerusha which he drives independently.  This process is similar to standard transfers but does not require an execution of maaseh kinyan and is classified as yerusha!


            Presumably, this issue was debated between the Ketzot and Netivot who differed on two fronts.  In siman 153 the Ketzot claims that inheritance intervention can apply to all items - even articles which cannot typically be transferred through standard kinyan.  Even items which do not yet exist (lo ba le-olam) or those not in a person's physical possession (eino birshuto)-such as outstanding debts- can be actively transferred to inheritors.  The Netivot disagrees limiting Rabbi Yochanan ben Berokah's principle to concrete articles which can be transferred through normal kinyan.  Conceivably, this debate is hinged upon the previous issue: if the father is actually affecting the transfer it may only operate on items which can be transferred through kinyan; items which are halakhically non-transferable cannot be delivered.  By contrast, the Ketzot may have viewed this rule as authorizing the father to ANNOUNCE an inheritor and allow 'typical' inheritance to progress.  As the actual transfer is driven by the Torah and NOT the person, a broader range of items may be included.


            A second and related debate surrounds the ability to retract an awarded title.  The Netivot allows this retraction and his logic seems consistent.  As the person is intervening, replacing the Torah and transferring items, he may withdraw his interest before he dies.  As the actual transfer occurs posthumously, he may reconfigure his transfer until that point.  The Ketzot argues, claiming that once a person identifies a 'yoresh' he has awarded a Torah recognized status which cannot be altered.  Such alteration would clash with Torah interest and would be deemed matneh al ma she-katuv ba-Torah.  Though the logic of the Ketzot may be contested, his view of Rabbi Yochanan ben Berokah as merely redefining statuses and not transferring items is clear.




            In fact this question may have already been debated between the Tanaim themselves.  Rabbi Yishmael (Rabbi Yochanan ben Berokah's son) claimed that his father authorized selection only WITHIN a class.  Namely, a father may prioritize a son over his other sons but cannot graduate a daughter before his sons (who precede a daughter under normal yerusha dynamics).  Similarly, in the absence of sons he may select one daughter over the others but cannot advance a brother ahead of daughters.  The gemara in Bava Batra cites a different tana who claimed that Rabbi Yochanan ben Berokah even allowed graduation 'outside' of a respective class - a daughter may be promoted above sons and a brother above a daughter.  Perhaps, this debate reflects the disagreement of the Ketzot and Netivot.  If the father is actually intervening and replacing the Torah's yerusha with his own he should have broader capacities which include delivering to ANY yoresh; he should not naturally be limited to deliveries WITHIN a particular class.  However if he is designating inheritors, we might limit that designation by the Torah's general classification scheme: a son may be preferred to other sons but a daughter cannot be rotated ahead of sons.


            An additional indicator of Rabbi Yochanan ben Berokah's intent surrounds the broader consequences of this intervention.  The gemara (Bava Batra 115b) derives an interesting principle known as "mishmush" which asserts that the inheritor of an inheritor may inherit the deceased (under certain conditions).  For example Avraham may inherit Esav if the latter dies without inheritors.  Since Yitzchak is an inheritor of Esav (as his father) and Avraham is an inheritor of Yitzchak, Avraham may receive Esav's state (see Bava Batra 116a).  Would the laws of mishmush 'kick in' in the aftermath of Rabbi Yochanan ben Berokah?  What would occur if the designated inheritor dies before the designator.  Would the estates be distributed based upon classic yerusha (since the intervention "failed") or would the inheritor of the designee receive the monies through the principle of mishmush.  This question, raised by Rav Elchanon Wasserman in his essays to Bava Batra, highlights the question surrounding the mechanics of Rabbi Yochanan ben Berokah.  If the Ketzot is correct and the father merely designates preferred yorshim thereby allowing a Torah–driven yerusha to entail, we would be more likely to superimpose mishmush to this process.  After all is said and done, a 'classic' yerusha driven by the Torah has occurred and all corollaries of yerusha should apply.  However, if the Netivot is correct and the person has replaced the Torah and authorized an independent form of yerusha we may question the applicability of standard yerusha corollaries.


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