Disinheriting Wicked Children

LawyerIn recent weeks, the American public was roiled by the zigzag case of Max Feinberg and his wife who had disinherited any of their grandchildren who married out the Jewish faith. Overturning a previous verdict, the Illinois Supreme Court ruled that the clause of their wills was valid, and intermarried grandchildren of the couple were cut off without a cent. This unfortunate story is only the latest link in an ongoing saga of over 1,500 years. For centuries, Jew and non-Jew have weighed and considered the consequences of a Jew forsaking the faith of his forefathers and leaving the fold.
In the past, when people converted the shailah was whether they inherited at all even if their parents did not strike them off the will. You could argue that a Jew, even if he sins, remains a Jew, while on the other hand, you could argue that by cutting himself off from his people, the convert automatically forfeited his hereditary rights. Also, even if he was fi t to inherit according to Torah law, shouldn’t beis din step in and deprive him of his yerusha? Another question was what would happen if he repented and returned to his people?

The Wicked Son’s Gift

The Geonim were the fi rst to discuss these questions. Many of them maintained that the apostate loses his rights of inheritance. “According to halachah an apostate does not inherit his Jewish father,” Rav Natronai Gaon wrote. “Why not? Because once he converts he loses the sanctity of Yisroel and the sanctity of his father, since inheritance is only for a Jew who is pedigreed (misyaches) after his father as it says (Bereishis 40:1), ‘For I have given to you and to your seed after you, the land of your habitation.’ Someone whose seed is pedigreed after his father, excluding this apostate who is not pedigreed after his father…”
The Rosh (Tur Choshen Mishpat 283) utilized this decision when he was consulted to resolve a family squabble. In advance, an apostate had given the inheritance he would receive from his father to his mother. This happened before his father died. After his father died, the mother demanded the property, while the heirs of the convert’s daughter claimed the property should go to them. Citing the above ruling of Rav Natronai Gaon (in the name of someone else), the Rosh wrote:
“It seems that the verse is an asmachta [not a real proof], because a Jew, even if he sins, remains a Jew and his son in every way. Rather, it is a fine the sages imposed and only based upon a verse. Because he [the convert] did not inherit him [his father] immediately, when the father of the convert died, the daughter of the convert got the property of her grandfather. The convert never had any right in the [estate] and his gift was no gift at all. Because the sages removed him from the inheritance, the daughter is in his place and receives the estate of her grandfather.”
The Poskim point out that the Rosh seems to contradict himself, because unlike his ruling here, where he states that the convert is left without a cent, he writes elsewhere (Kiddushin) that beis din holds the inheritance in escrow in the event that the convert might repent. The Shulchan Aruch (Choshen Mishpat 283:2) cites the Rambam who holds, unlike the Rosh, that a convert does inherit his father’smoney. However, beis din can confi scate it from him if they see fi t to do so:
“A Jew who converted to idolatry inherits his Jewish relatives as before. If the beis din sees fi t to make him lose his money and fi ne him so that he does not inherit, in order not to give support to the wicked, they may do so. If he has Jewish sons, the inheritance of their converted father is given to them.”
The Ramah then cites both the opinions of the Rosh we discussed: “Even if the convert gave the property to others, his gift is nothing because his property goes immediately to his heirs and he has no jurisdiction over it. Some say that we leave the inheritance in beis din, and if he repents we give it to him.” In conclusion, it is clear that many converts were deprived of their inheritance by beis din, and there is no doubt that many parents took the personal initiative of striking such people from their wills. As we will see, the Church looked askance at these practices.

 Non-Jewish Injunctions

The subject of disinheriting apostates is mentioned for the first time not in the writing of the poskim, but in a law passed by Valentinian III, one of the last emperors of the Western Roman Empire who ruled between 4185/425 and 4215/455. This was long before the Geonim, as Valentinian died about twenty years before the passing of Ravina II who completed the writing of the Talmud in 4235/475. When Emperor Constantine converted to Christianity during the fourth century, he passed a general law stating, “Jews are not allowed to harass Jewish converts to Christianity, and will be punished in accordance with the nature of the act.”
Now Valentinian issued a law, which clearly indicates that Jews were trying to stop offspring from apostatizing by denying them their inheritance: “If the son or daughter or grandchild, one or several, of a Jew or Samaritan, shall after mature consideration leave the shadows of his superstition for the light of the Christian religion, it shall not be lawful for his parents or grandparents to disinherit him or to pass him over in their will, or to leave him less than he would have received if they had died intestate. If they do so, we order that he succeed to the inheritance as though it were a case of intestacy, and the will shall be null and void, except for the manumissions to the legal maximum which it may contain, which shall retain their validity.”
Such laws remained a trend for much of Christian hegemony. For example, the Third Lateran Council of 4939/1179 in France during the Crusades decreed that neophytes (new converts) must be protected against the fanaticism of the Jews, and that Jews are forbidden to disinherit baptized persons, while during the fifteenth century, Pope Benedict issued a bull (decree) of twelve articles for the Jews of Spain, which included a rule that Jews might not inherit their baptized children.

 Civil Law

With the dawn of the European Enlightenment and the growing prevalence of equal rights, legal authorities began debating whether it was lawful for Jews to disinherit their offspring who were deserting the fold in increasing numbers. Historian Deborah Hertz discusses a well-known case that zigzagged through the courts 250 years ago.
Moses Isaacs, a prominent Munzjud (court Jew) had made a fortune minting coins and supplying the Prussian army with food, clothing and weapons during the Seven Years War. Upon his death in 5536/1776, Moses left three-quarters of a million talers in gold, most of it as a family trust for his grandchildren. He made the stipulation that any child converted to Christianity would lose his or her share.
Four years later, two brothers appealed to King Frederick the Great of Prussia, that two of Isaacs’ daughters, Rebecca and Blumchen, had married non-Jewish noblemen, and should be struck from the legacy. Frederick the Great had a great debt of gratitude to Isaacs who had not only raised loans and subsidies from England to help him win the Seven Years War, but had also, it is said, supplied him with horses to flee the battlefield after the defeat of the Prussian forces at the battle of Kunersdorf in 5519/1759 and hidden him overnight in his home at Furstenwalde. This may have influenced his decision that the will should be upheld according to Isaacs’ instructions.
The daughters sued the royal decision in civil court in 5546/1786. The legal issue at stake was a conflict between Moses Isaacs’ individual rights and the rights of the country at large. The court argued that by depriving his daughters of his money, Isaacs was inappropriately depriving two Christians of their inheritance rights in a Christian country, and ruled in the daughters’ favor. Later that year, the brothers appealed in a high court, which reversed the ruling, arguing that from the individual’s point of view, a parent has the right to determine who inherits his property. Later, the second court’s decision was overturned by a third court.
The brothers won the day when Frederick William II came to the throne and upheld his father’s decision in defiance of the courts. It seemed that each daughter would lose 80,000 talers at a time when top jobs were paying 2,500 talers per annum, until the brothers settled with the sisters, providing them with 75,000 talers each. Assimilation was so rampant that by the mid nineteenth century, the only beneficiary left of Isaacs’ trust was the converted son of one unconverted brother out of his five children. Poor Isaacs never achieved his goal of keeping his children within the fold. Judicial systems still find it hard to find a balance between the rights of the individual versus the values of society at large, as was evidenced by the case of Max Feinberg and his wife mentioned earlier.
Canadian lawyer Charles B. Wagner mentions the similar Shapira v. Union National Bank case in 5734/1974, in which a father’s bequests were conditional upon his three sons marrying Jewish wives within seven years of his death. When one son claimed that this violated Public Policy, which discourages racism and religious superiority, the court upheld the will, feeling that the father’s intent was not merely negative to punish a son who married out, but also a positive wish to preserve the Jewish faith and blood.
In the final analysis, disinheritance of recalcitrant heirs is an ineffective way of preserving one’s Jewish bloodline. Better to invest the money in providing a solid Jewish education, than to use it as an ineffectual weapon after one’s death.

(Sources: 1) Cohn, Warren I. The Moses Family Trust, its History and Significance. Leo Baeck Institute Yearbook, 1973. 2) Hertz, Deborah. Intermarriage in the Berlin Salons. Conference Group for the Central European History of the American Historical Association, 1983.)

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