A: Bonadona
The following document was produced in 1293 by the Jewish court in Barcelona at the request of Bonadona, daughter of Samuel [Astrug] Ascandrani. The document is simply an official copy of a document produced by a different court a year earlier (the embedded copy of the earlier text is indented for clarity).
We the undersigned court [state]: the Lady Bonadona, the wife of R. Judah b. R. Jucifia Saporta came before us and said to us, "please make a official copy of this record of a legal decision for Estevan deSpelugis, monk of Santa Anna, since he bought from me a vineyard which is mentioned in the record, since the purchaser did not want to give me the money until I hand over to him the official copy of this decision which was handed down about this vineyard, along with the rest of my property." We saw her words [to be reasonable] and heard her request [lit: voice] and we made an official copy of it for the aforementioned monk and this is the copy, letter for letter and word for word, without addition or subtraction:
We the undersigned court [state]: it happened that Lady Bonadona, the wife of R. Judah b. R. Jucifia Saporta came before us and said to us, "since my father, R. Samuel b. R. Abraham Ascandrani made a will concerning his possessions at the time of his death and he had no heir but me and he gave me as his heir the houses which I live in today in the Jewish quarter, and a vineyard at the edge of this city [Barcelona] near Mogoria, and a seat in the synagogue in the courtyard of the Israelites [i.e. in the men's section of the synagogue] in this city and he said at that time that if (heaven forbid) I should die without children then the aforementioned property should revert to a charitable trust; now I need to sell [the property] in order to support myself and I am afraid that I will not find a buyer since everyone knows that this property is mortgaged to the charitable trust because of my father's will. Please consider the laws and examine my father's will and determine for me whether my father's words giving the possessions after my death, are valid or not. We looked in her eyes (?) and heard her voice [request] and we took the will of her father from her and went over it in detail and discussed what was written in it, and all three of us were of one mind after we went over it about the law, and with the agreement and advice of our teacher and rabbi, R. Solomon b. R. Abraham ben Adret we made a judgment about the law that the charitable trust has no right to any of the aforementioned possessions, even if the Lady Bonadona should die without children, since her father ordered that she should have title to the possessions as an heir all the days of her life, and even though he ordered that they should return to the charitable trust after her death if she should die without children, he did not have the power to make such a condition since inheritance has no interruption [i.e., an heir's possession of his inheritance cannot be interrupted by the wishes of the person who bequeathed the property]. In order for Lady Bonadona to have it as a proof, we signed our names here in the month of Elul, in the year 5052 since the creation of the world (August 15-Sept 12, 1292), as we reckon it here in Barcelona, and it is valid and binding: Judah b.R. Solomon (may God protect him); Samuel b.R. Joseph (may his Rock and Redeemer protect him); Judah b.R. Yeshua (may he rest in peace).
This is the record of the legal decision and the court which signed it which we copied for the aforementioned monk on the orders of the Lady Bonadona; we examined the signatures of the court and we know that these are their signatures and we have written and signed and given it to the aforementioned monk to be evidence of his purchase and it is valid and binding: Hosea b.R. Joseph (may he be remembered for the life of the world to come); Hiyya b.R. Solomon (may his Rock and Redeemer protect him); Solomon b. R. Samuel Saporta [not apparently a close relation to Bonadona's husband].
Source: "Documents des Juifs Catalans," document no. 36, Revue des Etudes Juives, 68 (1914).)
A facsimile of the original is found in Joaquim Miret y Sans and Moise Schwab, "Documents des Juifs Catalans," Revue des Etudes Juives, 68 (1914), document no. 36.
B: Letter
The following is an abridgement of the letter from Adret to the Barcelona court about Bonadona's problem. It is found in Adret's responsa, vol. 1, no. 704.
Question: You asked [about] a person on his deathbed who made his will in gentile script (i.e. Latin), namely he ordered that his words be written as a will by X and Y in [both] Hebrew and Latin so that it would be effective. Does it matter that they wrote them as a will after his death? Do we say that these people are the agents of the dying man, given that an agent cannot act after death [of the one who empowered him] or shall we say that he is only like one who conveys his intentions to them, to carry them out as long as they wish, even after his death? If you say that they can write them, tell us about his instruction that it should be effective in Hebrew and Latin: should [we take it] literally so that if their language is sufficient in Hebrew (for complete fulfillment of what he said), would they be forbidden from writing it in Latin; or perhaps he meant only that it should be effective, even if it is not effective in Latin?
Moreover, your brother also asked in your name about the substance of the will which the dying man made: he bequeathed what he had to his daughter and he even went so far as to specify that if she should die with no surviving child that some of the property should revert to his brother(s) and some to a charitable trust and moreover, even if the daughter gave [her bequest] as a gift [he stipulated] that none of it should come to her husband, nor income from it, nor income from its income -- is this provision valid or not?
Answer: First of all, I will discuss general principles and afterwards, I will deal with the particulars. Even though [the sages] said that "the words of a dying man are as if they were written and conveyed," (Baba Batra 151a, 175a; Gittin 13a, 15a) they only intended this to apply to the words which he said, not to add to his words or take away from them in order to put them into effect, even though he revealed his intentions [i.e. if what he ordered could have legal effect, we do it, but we do not modify his requests even when it is clear what he wanted to achieve by them]. . . . Now I will explain the specifics which emerge from these principles. Consider that since the dying man intended for his daughter to inherit all the property from him, it immediately became hers by biblical law as it says in scripture, "and on the day that he wills to his sons" (Dt 21:16). So long as he does not recover and revoke the gift, it is entirely the property of the heir and if he makes any conditions about it afterwards, he is making conditions about the property of the heir [over which he has no control]. . . Thus the reservation which he made in the daughter's bequest that the husband would have no share in the property is meaningless, as we learn in the Talmud, "if she only receives what she consumes [her husband gets nothing]" but here he did not say so. Moreover, I already said that we never reduce his gift, so that she only gets some small part of the property in order to fulfill his purpose and his orders; especially since the daughter alone inherits all the property left by the father, anything left her as a [mere] gift comes to her with the force of inheritance, . . . therefore there is no vestige of support for what he ordered and bequeathed, including all of those reservations and conditions which he made. . . . It is clear that after his death no one can add to or subtract from [what he said], and every thing [else] he said would be of no effect, even if he were still alive, [since] he insisted on this exact language and ordered thus, even though this is a deathbed bequest. Especially since if he said, "write and seal and give it" [i.e. he gave specific instructions about the writing] we worry lest the acquisition can only be completed in a document, and one cannot issue a document after death, as it says in Baba Batra ch. 8 and ch. 9. Especially in the case of this man who commanded that his words be put in an effective document perhaps it was the document which he wanted.
Source.
translated by Elka Klein elka@yossi.com
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Paul Halsall, November 1998
halsall@fordham.edu