Mishmush: Secondary Inheritance
Dedicated by the Wise and Etshalom families
in memory of Rabbi Aaron M. Wise, whose yahrzeit is 21 Tamuz.
Yehi Zikhro Barukh.
In loving memory of Fred Stone, Ya'acov Ben Yitzchak, A”H
beloved father and grandfather, by Ellen and Stanley Stone and their children Jake and Chaya, Zack and Yael, Ezra, Yoni, Eliana and Gabi.
Parashat Pinchas describes the list of primary inheritors, ranging from sons and possibly extending to brothers. In the absence of these individuals – that is, if they are already deceased – inheritance can transfer to secondary relatives, even those who don’t share a DIRECT connection with the currently deceased. This halakha, known as mishmush, allows inheritance to transfer to relatives of relatives. For example, if the deceased’s child has already passed away, his inheritors – for example, his children, the grandchildren of the deceased – may inherit.
In fact, the son's inheritors inherit BEFORE a daughter. The laws of mishmush are derived from a pasuk that describes a situation in which the departed has no sons and the inheritance transfers to his daughter(s): "Ben ein lo," “He has no sons.” The gemara interprets this verse (Bava Batra 115a-b): “ayein alav” – the son should be further inspected to determine if he has ANY LINEAGE who could inherit PRIOR to the daughter. The rule of mishmush radically alters the process of inheritance, potentially extending it to anyone. Potentially, any Jew can inherit any other Jew assuming the deceased has a limited number of actual relatives.
An interesting machloket between the Rashba and Rabbeinu Yitzchak bar Elyakim (cited in a series of responsa of the Rashba, vol. 2) provides two very different models of mishmush. The gemara in Bava Batra (114b) designates a son's inheritance of his mother as a type of inheritance that does not “extend” to mishmush. If the son passes away prior to his mother, he does not inherit her and by extension, his inheritors cannot lay claim to HER lands through mishmush. Rabbeinu Yitzchak explains that this limitation is based on concerns for “inheritance diversion.” The mishmush extensions of the deceased son may include his brothers from A DIFFERENT father and therefore a different shevet. If a son ACTUALLY inherits his mother, the inheritance will remain loosely associated with that shevet. However, if his brother from a different shevet receives the inheritance through mishmush of the dead brother, the property would be entirely diverted to a different shevet. Hence, the standard rule of mishmush is suspended to protect shevet integrity. In fact, a later gemara (Bava Batra 159b) explicitly attributes the suspension of mishmush in this scenario to the concern of “land diversion.”
The Rashba disagrees with Rabbeinu Yitzchak, asserting a different reason that mishmush does not apply: the brothers of the deceased son possess ABSOLUTELY no relationship or “kirva” with the mother who has now passed away. Mishmush only operates to deliver inheritance to DISTANT relatives. The distant relative would not normally inherit, but the connection that DISTANT RELATIVE possesses to previously deceased inheritor allows the distant relative to receive inheritance of the current meit. For example, an uncle is not typically an inheritor, but his relationship to the departed father of the deceased allows him to receive inheritance from the meit his nephew. In the situation of a son who passes prior to his mother, mishmush isn’t feasible! A brother from a different father, is not a RELATIVE of the mother at all, and mishmush cannot award inheritance through the deceased brother. Similarly, a divorced husband of the deceased mother does not possess any status as “relative” of his former wife and cannot be the ultimate recipient of mishmush through his son.
The premise of the Rashba is extremely important. We may have understood that mishmush operates as a two-staged delivery. The direct but previously deceased relative inherits; since that relative is deceased, HIS relative then inherits HIM. There is no DIRECT delivery between the current meit and the ultimate mishmush recipient. If this were true, mishmush should occur quite liberally. A deceased child should inherit his deceased mother and in the second stage of mishmush, he should deliver the inheritance to HIS relatives. Regardless of whether those relatives enjoy a halakhic status as “relatives” with the currently deceased mother! This may be the model of mishmush that Rabbeinu Yitzchak assumes. According to this model, there is no “internal” reason that a son should not enable mishmush, and the disqualification must therefore be explained based on a different concern – land diversion. The Rashba, however, understands that mishmush creates “new direct” lineages for inheritance. The base package of Parashat Pinchas establishes 3-4 primary inheritors (son, daughter, father, and sibling), and mishmush extends each address toward THEIR respective relatives. The outcome of mishmush assigns yoresh status to the relative of the deceased's relative. Hence, mishmush can only operate if the meit and ultimate mishmush recipient are even distantly related. Since the divorced father is no longer related to his wife he cannot be the ultimate recipient of mishmush through his son. The debate between the Rashba and Rabbeinu Yitzchak highlights two very different models of mishmush.
These two models of mishmush may create multiple halakhic differences. Chief among them would be the question of whether creditors of the deceased relative can collect their debts from inheritance that passes to a distant relative through mishmush. The gemara in Bava Batra (159a) describes a case of grandchildren who receive a grandfather's inheritance through mishmush of their deceased father. The deceased father inherits HIS father, who has currently died, and passes along the inheritance to his children, the grandchildren of the meit. They aren’t obligated to reimburse debts owed by their father since they can claim that they receive the inheritance DIRECTLY from their grandfather and not secondarily through their deceased indebted father.
In an important discussion (48:3), the Sefer Ha-Terumot debates whether this exemption applies to ALL mishmush beneficiaries or only to grandchildren. It is possible that classic mishmush beneficiaries receive the inheritance THROUGH the deceased relative, and they would therefore be obligated to reimburse debts of that relative. This situation would be akin to purchasing land from someone in debt; the purchaser is obligated to reimburse prior debts of the seller. Grandchildren, however, represent a unique case, as they are not standard mishmush beneficiaries. Grandchildren are considered DIRECT children of the grandfather, as conveyed by a special pasuk cited by the gemara to highlight this direct relationship. Standard mishmush beneficiaries receive indirectly through the common previously deceased relative. This option suggests that mishmush is INDIRECT and would require debt reimbursement.
However, the Terumot cites a different opinion suggesting that ALL mishmush recipients receive inheritance DIRECTLY from the meit and are exempt from reimbursing debts of the common relative; the gemara's statement about grandchildren applies to all mishmush candidates. This view – in line with the Rashba's earlier comments – implies that mishmush establishes a direct line of inheritance between the current meit and the ultimate mishmush recipient.
The dynamics of mishmush can also be detected by gauging its elasticity. Does it apply only in standard cases of inheritances or even in atypical cases? The mishna in Bava Batra (130a) cites a unique position of R. Yochanan ben Brokah allowing a person to re-landscape the map of inheritors. For example, he may announce that ONE son should receive ALL the inheritance. According to some opinions, he can even upgrade inferior inheritors above traditionally superior ones. For example, according to these opinions, one can assign his father primary inheritance rights before his son. Can mishmush be applied to these situations and upstage otherwise prior inheritors? In other words, if the father - to whom primary inheritance was assigned through the mechanism of Rebbi Yochanan ben Brokah passes away would the father’s inheritors then receive the son’s property through mishmush when the son passes? Or do we say that when the upgraded father dies, the process reverts to the standard pattern of inheritance and the lands are delivered to the classic inheritors? Although a deeper understanding of R. Yochanan ben Brokah's halakha is necessary in order to determine this issue, it is clear that the definition of mishmush would influence the outcome of this question. If mishmush recipients are considered DIRECT relatives of the meit, perhaps mishmush would NOT apply in this instance. The father was assigned special status as primary inheritor and can therefore upstage even the children of the meit. The mishmush inheritors of the father, however, were never assigned that superior status and cannot upstage children of the meit. However, if mishmush is merely a two staged process in which the first relative posthumously inherits and transfers to HIS relative, mishmush should apply almost universally. Accordingly, the father – having been assigned super inheritor status – posthumously inherits the meit and then transfers it to HIS secondary inheritors.
This question about the nature of mishmush partially informs a well-known debate between Rava and R. Pappa in Bava Batra 116b. Does a grandfather or a sibling enjoy mishmush precedence? For example, if childless Esav passes away AFTER Yitzchak has already died, who inherits Esav – his grandfather Avraham or his brother Yaakov? Clearly, if mishmush transfers through the deceased person, Esav's brother Yaakov would triumph, as R. Pappa claims. Yitzchak, the father of childless Esav, inherits him posthumously and Yitzchak's first inheritor would be his son, not his father, in line with standard inheritance protocol. The only way that Avraham could preempt Yaakov, as Rava suggests, would be if we view mishmush as establishing direct lineage between the current meit and the mishmush recipient. This would prompt an intriguing question about whether a GRANDFATHER or a SIBLING is a closer relative. This question is only viable if mishmush is a direct inheritance; if mishmush is a two staged process, the inheritance would flow first to Yitzchak and then without question to his son Yaakov.
An interesting idea emerges from the comments of the Rashbam (129b and 133a). Although R. Yochanan ben Brokah allows remapping inheritance protocols, he does not allow multiple adjustments. While a person can assign a primary inheritor, he cannot assign the next recipient. For example, if he claims that a certain relative should inherit him and when that relative dies, a different relative should receive, the final part of his adjustment is disqualified. The first recipient receives, but when he passes away, NORMAL inheritance resumes. There are multiple reasons suggested for this rule. The Rashbam assumes that by assigning a second recipient, the person is subverting the laws of mishmush, and this is considered a case of “matna al ma she-katuv ba-Torah,” employing halakhic tools to contravene halakhic norms. By assigning a second recipient, he is undermining the Torah-mandated secondary recipient – the mishmush relatives of the first recipient.
If mishmush recipients merely received their inheritance secondarily and not directly from the primary owner, this circumvention would not be a direct attack on halakha and should not be considered employing halakhic tools against halakhic categories. Just like a meit can assign a personal inheritor through the empowerment of R. Yochanan ben Brokah, he can also assign a second recipient; the mishmush recipient of his original assignee is not his inheritor and his bypassing him is not a contravention of Halakha. However, if mishmush indeed establishes a DIRECT connection between distant relatives and the current meit, perhaps this Rashbam is more understandable. By assigning a first and new inheritor, the meit is automatically assigning DIRECT SECONDARY MISHMUSH inheritors. By subsequently diverting the inheritance after the death of the first recipient, he is DIRECTLY contravening the inheritance of his Torah mandated inheritors. He has violated Halakha and his attempts are therefore blocked.
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