Responsum: On Fulfilling a Dead Woman’s Vow

Responsum 20

An incident occurred involving a Jewish woman who died. R. Eliezer of Metz said to her heirs that she had vowed to donate sixty dinars to charity. He had in his possession some of her money, as he had retained hold of it after her death, and he did not want to give it back to the heirs, but rather give it to charity. The heirs, for their part, said that they knew nothing of this donation to charity.

This case came before R. Isaac ben Samuel, who responded that R. Eliezer should not keep possession of the heirs’ money on account of her vow. The commandment to fulfill the direction of the dead does not apply to him, as she did not deposit the money [with him] for this purpose. Even if R. Eliezer were to argue that he is a charity collector, and therefore is considered like the agent of the poor, and he wants to hold onto the charity that is in his possession so that he can give it to the person who actually distributes the charity donated in his city, nevertheless, R. Isaac contended, he does not have the authority to keep the money simply because he knows how to distribute the charity better than the heirs. This is the case despite the fact that his claim that she donated the sum to charity is a legally powerful one, as he could simply have said that the money in his possession belongs to him.

It is true that we learned in the Tosefta to tractate Bava Kamma:

If someone said, “Give two hundred dinars to the poor,” they should give the sum to the poor of that city. R. Aha said: To the poor of all Israel. [t. Bava Kamma 11:2]

Nonetheless, we do not compel the heirs to give it to the poor of that city, even if the law is in accordance with the first opinion in that Tosefta, rather than with R. Aha. This is the custom, for on many occasions wealthy individuals died, in France and other places, who had donated large sums to charity, and yet the money was not given to the poor of their city, but rather was distributed in different places, as those appointed for this task saw fit. The reason is that it is well known that they did not intend for the relatively few poor in their cities to receive the entire sum, nor for it to be given to the visitors passing through the city. This was the accepted practice, even though at the time many Jews lived in a few cities, and therefore there were more paupers receiving charity in a single city than there are nowadays. In addition, who knows whether she actually donated the sum when she was alive, or if she simply deposited it in his possession in order for it to be given at a later stage. For there have been instances of people who wanted their money to be given only after their death, and that is certainly likely to be the case here, as she did not know to whom the money was designated, or whether those who would ultimately possess the money would act in accordance with her bidding. Furthermore, it seems that her vow was not valid, as she did not take an oath on the sum of her marriage contract [ketubah], and therefore it is possible that all the money belonged to her husband, R. Joseph.

Consequently, the only course of action available to R. Eliezer is to return the money to the heirs. However, he should inform them of the specifics of her vow, and on his advice the heirs of Rachel should indeed give these sixty dinars to charity, which R. Eliezer says she vowed, as I maintain that his claim in this regard is believed. They can also inquire from others regarding this matter, as it can be assumed that he was not the only one who heard about her vow. However, the heirs of her husband, R. Joseph, do not have to give anything to charity, as it is not through her that they have the rights to their [own] money. On the contrary, if she were still alive, she would have to pay them the entire sum, as she would have caused them a loss; how, then, is it appropriate to say that they should fulfill her vow?

Isaac ben R. Samuel