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Beit Midrash Series P'ninat Mishpat

Chapter 269

Bonds with One Son Listed as a Recipient

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I was asked for my opinion on the case of bonds bought by Reuven, listing him as the primary recipient and listing his son (Chanoch) as another recipient. Reuven has died and Chanoch, who was previously unaware that he was listed as a recipient, now wants to receive the payment and not include it in the estate to be divided between him and his brother. The brother claims that Chanoch was written just because banks often ask for another name to be written. The widow is confident that Reuven had no intention of giving the bonds as a present for Chanoch and that Reuven was confident that Chanoch would not take the money for himself. The family dynamics do not give any indication that Reuven would have wanted Chanoch to get more than his brother.
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Assuming it cannot be determined what Reuven’s intention was, does the fact that the bonds list Chanoch and that the bank is willing to release the money only to him make him muchzak (the possessor out of whose hands one needs proof to extract)? In general that which is known to have been owned by a deceased person is considered muchzak by all the inheritors even if practically it is under the control of one of them. Regarding the fact that it is in Chanoch’s name, we find that under certain circumstances, documents in the name of one inheritor are assumed to be their own and in others cases not (see Bava Batra 52a; Choshen Mishpat 62). However, we see from the discussion that it depends on the likelihood that it is that brother’s own money. We do not say that the fact that it is in his name makes him muchzak. Rather we see from Bava Batra 36a that muchzak applies to those objects that a person normally would control only if it is his.
Even if we were to assume that Reuven intended that specifically Chanoch would receive the bonds’ payment after Reuven’s death, it is not clear that he employed the necessary mechanism to make that possible. It is agreed that during Reuven’s lifetime, he wanted to have sole rights to the money. Regarding a present that one wants to take effect after death, we say that one is not able to give a present after his death. Only when the present is given when the giver is on his deathbed do we employ a special institution of matnat shchiv mei’ra, whereas in this case, the bonds were bought when Reuven was healthy. While it is possible for one to give a present that begins immediately and is completed after death, there is no indication that Reuven did that in this case.
Apparently also the money due to one by means of a loan contract is transferred to another only if he gave over the contract to the recipient in writing and by also handing over the contract. In this case, where Chanoch admitted that he did not even know his name was listed, such a transfer of the bonds obviously never happened.
Therefore, it is my belief that the money should be divided as inheritance between the brothers. Since it is difficult to rule definitively on such matters, it is proper that they arrive at some sort of compromise.
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