RR 136-140

Burial of Enemies Side by Side

A husband and wife quarreled and were divorced. She died first and he instructed his children that they were not to bury him beside her. He reiterated these instructions during his last illness. The children indi-cated that they would carry out his instructions. Are the children obligated by Jewish law, custom, or ethics to carry out this request?

In general, it is a principle in the law that “one is in duty bound to fulfill the commands of the departed.” This is based upon the discussion in Mishnah Ketuboth V, 7, which deals with the question of a father leaving money for the purchase of a field, the income from which is to support his married daughter. The daughter, however, says that the money should be turned over to her husband because she prefers to rely upon him to support her, using that money. But the law says that the executor of the father’s estate should not listen to the daughter, who wants the money turned over to her husband, but should carry out the command of the father and buy a field for her support. The Talmud, in discussing the Mishnah, uses the phrase “One must fulfill the command of the dead.”

The question is, then, how far need one go in carrying out the desires of the departed? The Shulchan Aruch (Choshen Mishpot 252 : 2) repeats substantially the opinion of the Mishnah and the Talmud, that the duty is to fulfill the command of the dead. But Isserles makes some limitations as to when this does not apply, such as depending upon when the money came into the hands of the executors, and so on. Jacob Reischer (Metz, eighteenth century, “Shevus Ya’acov” I, 168) deals with an interesting variation of this question. A mother asked her sons to promise that should any disputes arise among them after her death, they would always turn to a certain man (whom she designated) as their arbiter. The sons made the promise to her; but when a dispute arose after her death, one of them refused to accept this man as the arbiter, claiming that he (the arbiter) was an ignoramus and lacked the knowledge to settle the dispute according to the laws of the Torah. Is it the duty of the children to fulfill the will of the departed mother in this regard? Jacob Reischer says that in the Talmud and codes the law on this matter (that one must fulfill the wishes of the dead) applies only to the wishes of the dead with regard to the disposal of their estates but not with regard to other matters. Nevertheless, if the sons had made this promise to their parent, though the law does not require them to fulfill it, it would be a “true kindness” if they went beyond the requirements of the law; but that is for them to decide.

As for the fact that this promise was made to the mother when she was dying, it was merely made (so the son claims) so as to quiet her mind while she was dying, and therefore is not really a vow. This the law clearly states in the note of Isserles to Yore Deah 232 : 17.

Hence it is clear that in the case we are discussing, the promise made to the father in his final sickness, if it was made merely to ease his mind, is not to be considered a legal vow; nor is his desire not to be buried by the side of his wife to be considered one of those wishes which come under the head of the principle that “the wishes of the dead are to be fulfilled,” since this principle applies only to his wishes as to the disposal of his estate.

As a matter of fact, there is even some ground for definitely disregarding his wish. If, for example, the situation were the other way around and it were a question of where the wife should be buried, and the husband had said, “Do not bury my wife by my side,” this wish should definitely be disregarded. The law in Shulchan Aruch (Yore Deah 366 : 4) is as follows: If her father says, “Let her not be buried beside me,” and the husband says, “Let her not be buried beside me, ” she must be buried beside her husband. The reason for this is that it is the husband’s duty to provide for the burial of his wife. (See the origin of the law in Mishna Ketuboth IV, 4, and also in Semahot XIV, 7.) In fact, the Shulchan Aruch (in Even Hoezer 89) says that the court may even sell the husband’s property to provide for the burial of his wife. (Of course, if the couple is divorced, the husband has no further legal obligations toward the wife.)

However, in the special case we are discussing, there is a ground upon which the request of the husband should receive some consideration. The laws just mentioned, that the request of the husband should be ignored, seem to apply only in the case where the husband is merely trying to avoid his responsibility in the matter, but if it is a case in which there is actual enmity between man and wife, other considerations arise.

The law is clear (Shulchan Aruch, Yore Deah 362: 6) that two who are enemies to each other should not be buried side by side. Although this law does not go further back than the Testament of Rabbi Judah the Pious (#1; Regensburg, twelfth century), and it is questionable that that Testament applies to other than Judah’s own descendants (see “Nodah b’Yehudah” II, E.H. 79), nevertheless it is so codified as a general law in the Shulchan Aruch (though not found in the Tur and the earlier codes). Aaron Meir Gordon, in his “Sha’arey Da’as” (Jerusalem, 1921, p. 95, #5), quotes Shevet Shimon (#366; Simon Sidon, Hungary, early nineteenth century) to the effect that this law applies also to husband and wife who quarreled while alive, and insulted each other so much that they became enemies. In that case the wife should not be buried near her husband, but far from his grave.

The question is: Just how far from his grave should she be buried? The law in the Shulchan Aruch, that enemies should not be buried side by side, follows the older law that the righteous should not be buried beside the wicked, and vice versa. It is clear from the long discussion on this question that, since in most of the older European cemeteries bodies were buried in a row, it would be sufficient in such cases if one grave intervened. However, with regard to a family plot it might be considered that the plot belongs to the husband, and it could be therefore argued that the wife should not be buried anywhere in his plot.

Considering the general spirit of the law that such a request has no legal validity as “the will of the dead which must be fulfilled,” and considering, too, that in general it is the husband’s duty to provide for his wife’s burial, but also considering the fact that the law provides that enemies should not be buried side by side, it would seem justified to decide that if it is no hardship for the family to provide another lot, or if the family already has more than one lot, the wife and the husband should be buried in two different lots. If, however, it would be a hardship on the family to provide another lot, the wife should be buried in the same lot as the husband, but not in a grave adjoining his.