The Heiress?
“Determining The Daughter’s Status ”
(Kesubos 68b-69a)
We learn from a verse in Jeremiah (29:6), “…[T]ake wives for your sons and give your daughters to husbands…,” that a man has the obligation to marry off his children. The Gemara (Ketubos 52b) explains that it is his duty to search for a suitable bride for his son and to provide his daughter with nice clothes and property so that she, too, will find a suitable mate. In fact, the Gemara states that a father should be ready to give his daughter up to one tenth of his assets for that purpose.
An Orphan’s Dowry
The Mishnah and the Gemara (68a) discuss the dowry from the father’s estate that is to be allocated to an orphaned girl. The Sages are of the opinion that, as a rule, an orphaned girl receives one tenth of her father’s assets for her marriage needs. [Shmuel rules that the court assesses the father’s properties and assets and allocates the dowry accordingly. If such a determination cannot be made, Shmuel agrees that the daughter is given one tenth of the assets in the estate.]
The Gemara (69a) ponders whether the dowry that the sons are obligated to give their sister (from the father’s estate) is considered their personal debt or whether it is viewed as an inherited debt.
Is An Oath Required?
If it is considered the father’s debt, the brothers could demand that their sister declare under oath that she did not collect her dowry from the father before his debt. They are entitled to demand such an oath because, as a rule, a creditor who wants to collect a debt from the deceased’s heirs is required to swear that he did not receive payment from the deceased, for heirs are not necessarily knowledgeable of the deceased’s affairs and have no idea whether the debt was paid.
[On the other hand, if the sister’s dowry is viewed as the brothers’ own debt, they have no ground to demand an oath from their sister because they do not have a definite claim that the dowry was paid.]
Paying A Debt Before The Due Date
Resh Lakish (Bava Basra 5a) points out that there is a chazaka (a legal presumption) that a debt is not repaid before it is due. Based on this, if a debtor dies before the loan was due, the creditor could collect payment from the heirs even without taking an oath because the presumption is that the debt was not paid before its due date.
In light of this halacha, the Beth Meir (cited by Pis’chei Teshuva, Even HaEzer 11b s.k.9) asks why the daughter has to swear that she did not receive her dowry from her father. Since the time to pay the dowry is when the daughter is engaged to marry and she was not engaged until after her father’s death, there is an assumption that the father did not prepay the dowry.
Daddy’s Girl
The Beth Meir answers that, as a rule, a father feels particularly protective towards a daughter and therefore there are grounds to assume that he advanced the dowry while he was alive even though his daughter was not yet a bride.
The Shevuth Yaakov (Vol. 3:126) suggests that it is common for a father to give a dowry to his daughter when she is of age to become a bride, even before she is engaged to marry. The heirs could also claim that she might have been about to become engaged and the father would, at that time, have given her the dowry. Therefore, if the dowry obligation is considered a debt that they inherited from the father, they could demand that their sister take an oath that she has not yet received the dowry from her father.
