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Shabbat Parashat Acharei Mot 5774

P'ninat Mishpat: A Donation That Destroys a Shul

(based around Shut Maharam Padova 65)

[Reuven owned/ran a small shul in his house. As he was on his deathbed, he wrote a will that stated that after his death, all the shul’s furniture should be transferred to the big shul in town. After his death, his inheritors (not children, as he had none) said that they want to continue operating the shul and that giving away all the furniture will effectively close down the shul. There is reason to believe that had Reuven known that the shul was going to continue to exist, he would not have made the provision to donate the furniture to the big shul, especially because it is forbidden to uproot a shul. There is also one witness, based on whose testimony the inheritors would retain rights to the furniture.]

 

It is difficult to dismiss the will based on the assumption that it is forbidden to uproot things from a shul, since it is not clear that this applies to removing movable objects and because not everyone is aware of the halacha that it is forbidden to do so. Regarding the assumption that his foremost interest was the future of his own shul, if it could be preserved, that is not necessarily correct. It is possible that Reuven thought that it is a bigger mitzva or a better memorial for him (considering he died without children) to leave his shul furniture in the main shul.

However, the existence of the witness is significant. It is not a simple question whether the big shul, which is the recipient of the will, or the halachic inheritors are considered muchzakim (in possession until proven otherwise). If the inheritors are muchzakim, then with the one witness, they prevail without the need for an oath. Since a witness creates the obligation of an oath on a defendant, it is certainly able to come in lieu of an oath to exempt the defendant, who is muchzak, from an oath. If the big shul is muchzak, then the witness only obligates them to swear, and in this case, they are exempt from swearing because they are not expected to know what Reuven’s intention was. However, it seems clear that the will does not turn the big shul into a muchzak. Since property is always assumed to go to its inheritor until proven otherwise, it would seem that the inheritors are muchzakim.

It is also possible that Reuven was not even considered the owner of the shul furniture, but that it belonged to tzedaka, and Reuven’s rights to control the property are not the type of thing that can be transferred to an inheritor or given to the big shul after his death. If that is the case, which is probable, then the furniture would stay where it is in the small shul.

Another claim to nullify the will’s validity is that it was done only through the non-Jewish courts and without a proper kinyan. If, as you said, Reuven was a shchiv meira (on his deathbed) and the document includes mention of death, then it works according to the special rules of matnat shchiv meira and is effective even if done only in the non-Jewish courts.

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