Distribution of an inheritance when one of the heirs owed money to the deceased
Hello Rabbi Michi
I am contacting you to clarify a halachic issue regarding an inheritance.
The details
• There are four brothers.
• They are supposed to divide the inheritance equally.
• Moshe, one of the brothers borrowed 200K shekels from his mother while she was alive. There is a loan note on it and an admission from the brother that it was not a gift but a loan. He borrowed less than a year before her death, when it was not at all clear that she would die so suddenly.
• There are several properties, mainly apartments, that remain to be divided between the brothers. The total value of the properties is approximately 10 million shekels.
The discussion
One of the other brothers asks Moshe to settle his debt with the heirs, regardless of the division of the apartments.
Moshe is not interested in spending this amount (50 thousand each) but prefers to have his share of the other assets reduced.
What sources would you turn to to clarify this issue? Have you ever encountered something similar? Or an issue in the Talmud that could help?
I’ll write chapter titles that come to mind right now without looking into them in depth.
The rule is that brothers who share are as customers (and not as heirs): see Rambam, Hala Shekhin, P.B. 12, and Pi.A. Mishmita, H.K. 22, and Tushua, H.M. 3, 13, 14. This means that before the division, the entire property belongs to the occupant of the house (all property according to the division of the inheritance is still considered the property of the deceased). Therefore, there is logic in demanding repayment before the division, since the debt is to the occupant of the house and not to the heirs, and furthermore, what that brother has in the occupant of the house is still appropriate and not held and apparently cannot repay his debt from it. This is at least if the time for repayment has already arrived. If it has not arrived, then there is room to look at the situation at the time of repayment itself, and if there has already been a division, the situation changes to repayment of a regular debt.
What is the ruling if the debt and repayment is to the heirs? Then the borrower can repay in money or in kind, and his share in the house is in kind (best). We have now moved on to discuss whether in a regular debt the borrower can force the lender to accept repayment in land instead of money. See H.M. 30 to 36 and 35 there and in the N.V., which seems not to be the case. It is true that here the lender is a bar Mitzra, because he has a share in the same house, and therefore perhaps it is a virtue of Sodom on his part not to accept another share of the house as repayment, although this should be rejected.
Although if the borrower is in distress, it is relevant here to discuss the law of the sedrin to the animal, because in essence there is a debate here between the heirs and the borrower as to whether he will repay them with money or real estate, and if he has no money, they can be forced to accept a share in the house instead. But this law of the sedrin is only when the borrower has no money.
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