Rabbi Meir Orlian
Writer for the Business Halacha Institute
Q: After my father-in-law passed away, I mentioned, in passing, that I don’t have a silver menorah. My mother-in-law decided to give me my father-in-law’s menorah, explaining that all of her sons already had their own. When I mentioned this to one of my wife’s brothers, he said that he is willing to forgo his rights to the menorah, but since his mother did not have a right to give away the menorah, which is part of the estate he and his two brothers inherited, I would have to get the consent of the other brothers as well.
My questions are: One, is he correct that I have no right to the menorah? Two, does his ceding his portion of the menorah alone enable me to use it, or do I have to ask his brothers for permission as well? Three, if I am required to ask, and they refuse to allow me to use it, what are my options going forward?
A: It appears, from your question, that your father-in-law did not leave a Will, in which case his entire estate belongs to his heirs, which, according to halachah, includes only his sons, not his daughters or his wife (Shulchan Aruch, Choshen Mishpat 276:1). A husband inherits his wife (ibid. Even Ha’ezer 90:1), but the reverse is not true; a wife does not inherit her husband (Rambam, Hilchos Nachalos 1:8). A widow is entitled only to whatever her husband obligated himself to provide in the kesubah, which, generally speaking, is room and board (ibid. 93:1).
The silver menorah, which is part of your father-in-law’s estate, belongs to his sons only, and your mother-in-law had no right to give it away.
The fact that one brother-in-law ceded his portion to you does not make the menorah yours. Furthermore, according to the way you described your conversation with him, you are not even considered a partner in it, because he never said that he is giving it to you (using the term nesinah, or something similar). When a person says that he forgives or forgoes (mechilah or vitur) his rights to something, that can only wipe out an existing monetary obligation, such as a loan, but it cannot effect a kinyan, which would be necessary for you to acquire that brother-in-law’s portion of the menorah (ibid. Choshen Mishpat 221:2).
If he did say that he is giving you his portion, and it is already in your domain or a proper kinyan was made to acquire it, then you now own his portion and you are partners with the remaining two brothers.
But even if you did make a kinyan on one brother’s portion, the other heirs will generally object to your using the menorah without their permission, because using it could cause it to get ruined. You would therefore be required to ask them for permission before using the menorah (see Mishnah Berurah 14:18, regarding a tallis that was inherited by several brothers, and some object to one of them using it, in which case he may not recite a brachah on it until he comes to some agreement with his brothers).
Your first option going forward is to discuss the matter with your brothers-in-law (including the one you already spoke to, if he didn’t use a term synonymous with “giving,”) and secure their permission to use the menorah. If they don’t agree, then if you did make a proper kinyan and now own a portion of the menorah, you can agree to a “timeshare” with the other two brothers, with each of you using the menorah at specific times. Alternatively, either you can dissolve the partnership through a gud oh agud, in which one partner in a venture offers to sell his portion of the joint asset to his partner for a specific price, and, if the partner does not want to buy him out, he must sell him his stake for that price (see issue 468). A third option is to sell the menorah and split the profit (see Choshen Mishpat 171).
