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113 [1] Someone who died and was survived by a daughter, we estimate his frame of mind as to how much he would have set aside for her dowry and give it to her. How can we know his frame of mind? From his friends, acquaintances, business dealings, and honor. Similarly if he married off a daughter in his lifetime, we estimate by her. Note: If he was rich and became poor, or was always indulgent and changed his mind, we follow his most recent status (Tur). If the court could not estimate his frame of mind, we grant her one tenth of his property for her dowry. Note: Just like we give a dowry to the daughter from her father's estate, so do we give her support from the property of the mother (Nimukei Yosef, chapter Yesh Nochalin). Some argue (Maharil chapter 75). Some say that even when the father is alive, he should not grant his daughter a dowry more than one tenth of his property (Ran chapter Metziat haIsha), but we do not act this way. [2] The tenth of his estate described above for the daughter's dowry is not from among the conditions of the ketuba. Therefore, even according to the decrees of earlier and later Sages, she takes [the tenth] only from real estate. She may collect from rental of the land... Rama: if the [male] orphans have not yet collected (Tur). Mechaber: ... and from expected income. If the brothers wished to give her money instead of the one tenth share of the land itself, they may do so. Rama: It is only the collection that is limited to real estate, but when the estate is assessed to calculate the tenth, the entire estate is assessed, including movables, and then one tenth [of the entire estate] is collected from the real estate. And this applies only when giving her one tenth, but when we can estimate the volition of the father, we assess what we think he would have given both from movables and from real estate and we give these to her (all in the Tur). Some authorities say that even when we assess [the tenth] we assess only the real estate (so wrote Beit Yosef in the name of Magid Mishne explaining Rambam). If there were creditors, and the sons wished to pay them off with lands, and the daughters say that they should be paid off with movables so that the lands will remain in the hands of the [male] orphans, and the daughters will take their tenth from the orphans, the law sides with the sons (Mordechai chapter Metziat haIsha in the name of Responsa Moharam). It seems to me that the same law applies with respect to the 1/2 male share (given to daughters) document that is customary among us, that the daughters do not collect from lands, and if there were creditors, the sons are permitted to pay them off with movables so that the lands will remain for the sons, and the daughters will have no share in them. When we estimate the father's wishes, it is only to minimize below 10%, but not to increase above 10% (Tur in the name of Rosh). Some authorities disagree and say that they may even increase over 10% (Tur in the name of Gaonim). Some say that even if the estate holdings are limited to the amount of dowry he gave to his first daughter, they give that entire amount to the second daughter (Tur in the name of Ra"avad). But it is appropriate to estimate his wishes according to the amount of money he left at the time of his death (Maharik root 78, e.g. as a percentage of the estate) so it appears to me. [3] A daughter with respect to the tenth [of the estate for her dowry] is as a creditor to the brothers. Therefore, she collects from medium quality land, without an oath [in which she would deny having previously received the land]. If the brothers died, she takes the lowest quality land from their sons with an oath, for she is collecting from orphans. Nowadays that all people customarily marry off their daughters (i.e grant dowries) from movables, we assume that the father also planned to give likewise [from both real estate and movables; as explained by Taz here]. [4] If he left many daughters, as each comes to get married, they give her one tenth of the property, and the next daughter receives one tenth of what the first daughter left, and the next receives one tenth of what the second daughter left. If they all came together, the [tentative] first takes 10%, the second takes 10% of the remainder from the first, and so on, even if there are 10 daughters. [All the tenths are then recombined] and they then share equally in the total. Rama: Even though the tenth share in the estate is not collected until the daughter comes forward to get married, we nevertheless calculate tenths according to the size of the estate at the time of his death. Similarly, if we are estimating how much he would have given for dowry, we make that estimate at the time of his death, but she does not collect until she marries (Magid Mishne chapter 20 in the name of Rashba and Responsa Ramban chapter 46). [5] Brothers who sold or mortgaged (as collateral for a loan) their father's land, the daughter may grab (i.e. extract in court) from the purchasers money for her dowry, with an oath, in the same manner that creditors may grab (i.e. enforce their prior liens) from purchasers. [6] If a man died and left a widow and a daughter, the daughter does not take one tenth of the property (for her dowry) because of the sustenance support of the widow. Even if the daughter died after her marriage, her husband does not inherit the [dowry] income that would have been appropriate to give her, for the property is legally in the possession of the widow for purposes of her sustenance. Rama: In the same manner, dowry income of the daughters takes precedence over "male sons" ketuba inheritance (Ran chapter Metziat haIsha). [7] An orphan girl who is married off by her mother or brothers with her consent, and they gave her 100 or 50 zuz, when she matures she may extract an appropriately sustaining dowry from them. Rem"a: Even if she said nothing for a long period after she reached maturity, she still may come afterwards and demand support. [This is true] even if the brothers providing her with food. Even though she did not object at the time of marriage, [we do not say she forfeited the right to do so later] be cause she was only a child and was not eligible to object. If the daughter married after she matured, whether she was a maiden to fully adult, and she did not demand her support, she has lost her claim to support, unless the brothers were providing her with food after her marriage (Rem"a: and she was aware of that at the time of the marriage). If she did object at the time of the marriage, she may extract the appropriate sum for herself whenever she wishes. If she matured while still living in her father's house, whether before or after his death (Rem"a: some authorities dispute this and hold that of he died after she was fully adult she receives no support), if the brothers designated some amount to provide her food, as she has no claim to food, and she was silent and did not demand a supporting dowry, she has forfeited her claim. If she objected, she has not forfeited her claim. If the brothers did not designate funds to provide her with food, and they did provide food in her adulthood, even though she did not object she has not forfeited her supporting dowry for as long as they are providing her food, for she can claim that [in recognition of the kindness of] feeding her while they were not obligated to do so, and she was not yet married, that she did not demand her support. Rem"a: If someone ordered that his daughter be given a third of his property, and her brothers married her off and did not give it to her, they must give it to her later. [8] If a man died and left two daughter and a son, and the first daughter [at her own initiative] took one tenth of the assets, and the second was not able to collect before the son died, such that now all the assets fall to the two of them, the second daughter may not take a tenth [before dividing the remaining assets]. Rather, they divide the estate equally and the first is entitled to her tenth. Rem"a: Some authorities dispute this and hold that the second daughter also takes a tenth before dividing [the estate]. [9] [Our sages] did not decree dowry support for the daughter except with the existence of a son. But if he left only daughters, they divide the estate equally. Even if the older daughters married in the lifetime of their father (and had received dowries), and the younger daughters say, "We also want to get married (receive dowries) from the property before division of the estate," we do not listen to them. But if the older daughters married after the death of their father from the middle (i.e. from the combined estate prior to division), the younger daughters also get married [from the combined estate] and then they split the estate. [10] If one ordered at the time of his death, "my daughters will not be supported with a supporting dowry from may assets," we follow his instructions. Rem"a: If, however, he stipulated at the time of marriage that his daughters will not be supported by his assets, we do not follow his instructions.
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