Tombstone

JRJ, Winter 1988, 67-68

TOMBSTONE WITH CHRISTIAN MARKINGS

Question: The Christian spouse has placed a tombstone with crosses upon it on the tomb of her Jewish husband, who is buried in the Jewish cemetery. Should this tombstone be per- mitted to stand in the Jewish cemetery? (Rabbi K. White, Lincoln, Nebraska)

Answer: We should begin by looking briefly at the historical back- ground of tombstones.

Some biblical graves were marked, as Jacob placed a pillar on the tomb of his beloved wife, Rachel (Gen. 35:20). Similarly, we find various biblical and post-biblical kings marking their graves (II Kings 23:17; Mac. 13:27). Tombstones were, of course, also used to warn priests ( kohanim) so that they would not become ritually unclean (Jos., Oholot 17:4).

Tombstones were also mentioned in the talmudic period, but nothing indicated that their erection was a universal custom (M. Shek. 2:5; Hor. 13b; Er. 55b).

Some of the medieval authorities considered a tombstone as customary on every grave (Solomon ben Adret, Response, #375). He also felt its erection was an obligation to be met by the family (Responsa, Part 7, #57).

Joseph Caro followed this thought ( Aruch, Even Ha’ezer 89:1; Yoreh De’a 348:2) and states that a husband is duty- bound to provide a stone along with burial for his wife.

The commentaries continue that emphasis.

It is clear, therefore, that the grave must be marked.

We must now ask whether it is permissible to use a stone with a Christian symbol in a Jewish cemetery.

There is, of course, no discussion of this in the traditional liter- ature, for such a stone would have been unthinkable in the past, and the question would therefore not have arisen.

We can, however, be guided by it in a lengthy discussion of Moses Schick of the 19th century (Responsa, Yoreh De’a, #171) which dealt with inscriptions of the date from the Christian calen- dar on the tombstone. He was outraged and felt that this violated the commandment of Deuteronomy 18:20, “The name of other gods shall not be mentioned.” Others, however, believed that this system of dating had become completely secular and, therefore, could be used on a Jewish tomb along with the Hebrew date. I cite this instance simply to indicate sensitivity on a matter that is per- ipherally Christian.

The cross, however, is the central symbol of Christianity. It is sacred and universally recognized. It would, therefore, be abso- lutely wrong to have this or any other Christian symbol in a Jewish cemetery. In our instance it is also misleading as the indi- vidual buried there was a Jew.

When we permit a non-Jewish spouse to be buried in our cemeteries, it is a courtesy to the family. This cannot be extended to non-Jewish services in our cemeteries or to Christian symbols on any grave. Anyone who is uncomfortable with these conditions should be buried in a Christian cemetery.

Many of those buried in the cemetery already, and their survivors, would feel that their religious status had been violated by such a stone.

In our instance, it seems quite likely that the widow simply ordered the stone without giving the matter any thought, and would be willing to alter it or replace it. If, for some reason, the widow is adamant and insists upon having her husband’s grave marked with a cross, then his body should be reinterred in the general cemetery where she can mark the grave in any way that she wishes.

Walter Jacob, Chair CCAR Responsa Committee

RR 154-157

Uniformity of Tombstones

A number of Reform congregations have established the rule in their cemeteries that all tombstones shall conform to a similar standard of height and type, with the aim of establishing simplicity as well as uniform ity. Is this rule in accordance with the spirit of Jewish law?

From the earliest times there has been a tendency in Jewish law to simplify the whole process of burial. In the time of Rabban Gamaliel, a tendency toward extravagance arose. People began to vie with each other in providing expensive garments for the dead. Thereupon Rabban Gamaliel, although himself well-to-do, set the example of modesty by making arrangements to be buried in simple linen garments. That is how the custom arose to bury all the dead in the same type of simple shroud (b. Ketubot 8 band Moed Katan 27b).

With specific regard to tombstones, the tendency must likewise have been toward simplicity. The original purpose of the tombstone was merely to mark the grave (Tziun) as a warning to priests that they should not approach and thus be defiled. Hence there was no tendency among the Jews, as there was among the Greeks and the Romans, to make those elaborate sarcophagi found among the Romans. The Greek and Roman sarcophagi were elaborate also because they were to hold the remains of the honored dead, whereas among the Jews, although there is some mention of stone coffins, bodies were put into niches in caves, or simply put into the ground; the stone was merely a marker. Hence the tendency was to make burial very simple. In fact, the Talmud (j. Shekalim II, 6) declares that “as far as the righteous people are concerned, we need not make tombstones at all. Their words are their memorial.”

In Hadras Kodesh, by Joseph Schwartz (1931)—a volume devoted to the rules governing the burial society and containing numerous letters from various rabbis on matters dealing with burial, and so forth—there are two letters on the question of expensive tombstones: one (Letter #20, p. 30&) denounces the expensive tombstones that are being set up in the United States; the other (Letter #3 1, p. 37a) deals with the same theme. David Terni (in “Ikre Ha-dat” to Yore Deah 35 : 4) quotes the above Talmudic statement and says, citing another authority, that if we do set up a tombstone for the righteous, it must be a very simple one.

In addition to this desire for simplicity, there is also a desire for uniformity and democracy in the cemetery. Besides the Talmudic statement of Rabban Gamaliel, insisting upon simple shrouds, the famous responsum of David Oppenheimer, of Prague (published at the end of Jair Chaim Bachrach’s “Chavos Jair”), indicates clearly that uniformity is the test of a Jewish cemetery. The problem with which Oppenheimer deals in his responsum concerns the digging of the foundation for a new synagogue. Bones were found in the digging and the question arose, Does the presence of these bones indicate a Jewish cemetery (which the synagogue would be bound to leave untouched) and will the building of the new synagogue therefore have to be halted? He bases his decision on the Talmud (b. Nazir 65a), which speaks of which bones may be removed if they are found. The Talmud there says that if the bodies lie buried in various ways, lying in different postures, this is evidence that this is a pagan cemetery. Oppenheimer, developing this Talmudic test, states that in Jewish burial all bodies are laid out in a uniform way and in the same order; but that it is the way of the “Amorites” to bury without uniform order. In fact, in the traditional cemeteries the bodies were laid out in the same direction and in rows in the order of their burial, with only these exceptions: that the righteous should not be buried beside the wicked, and that enemies should not be buried side by side.

Moses Schick (Responsa “Maharam Schick,” Yore Deah 170), in voicing his objection to a proposed tombstone on which a relief portrait of the deceased was to be incised, says, among his various arguments, that a cemetery is a courtyard of partners and that nothing exceptional must be put there to which the other partners might object. Abraham Isaac Glick (“Yad Yitzchok” III, 83) has dealt with an interesting question that is relevant to our discussion. By mistake, a woman buried in the row was interred in a position reverse to that of the other corpses, the head facing the opposite direction. Glick was asked whether this body should be disinterred so as to rebury it in a way uniform with the others; also, where the tombstone should be set on that grave. He does not permit the disinterment, since Jewish law is very loath to give such permission. As for the tombstone, which usually is set at the head, he says that in this case it should be set at the feet, in order not to look different from those on all the other graves, for it would be a shame to the dead to be forever signalized as different from the others, especially as years go by and people no longer know the reason for it.

The simplicity and the uniformity which were the whole tendency of Jewish law and custom in this regard could be achieved without too much difficulty in the old-fashioned cemeteries, where the bodies were buried one after another in the row. It is a little more difficult to achieve in our modern cemeteries, where the bodies are buried in family plots and where there is a greater tendency for families to have, out of family pride or resources, especially impressive tombstones. We must therefore make a conscious effort toward expressing the spirit of Jewish law. The practice of uniform tombstones is certainly expressive of that spirit.

RRR 141-143

Location of Tombstone

On a family plot, should the main tombstone, with the family name, be at the foot, at the head, or at the cen ter of the lot? Also, should the individual, smaller stones on the lot be at the head or at the foot of the individual graves? (From Rabbi Nathan Kaber, Altoona, Pennsylvania)

There is no clear statement in the Law on the question of the location of a tombstone on the grave, as to whether it should be at the head or at the foot of the grave. There could not have been any such statement in the earlier Palestinian sources, for in Palestine they generally buried in niches within a cave. It is not certain whether the opening of the individual niches was sealed with a stone, but it is known that the opening to the main cave itself did have a stone which could be rolled away for subsequent burials. If there were any inscriptions, we must assume that there was a general inscription on the outer stone, perhaps a family name. In Rome, if the Jewish catacombs can serve as an analogy, the individual niches within the large catacomb were, of course, sealed by separate stones, and inscriptions were placed upon the stones which sealed the niches.

Graves in the earth became the customary form of burial in Babylon, where the soil was not rocky but soft. But we have no statements as to which part of each grave was marked with the tombstone. Evidently the question did not arise. The Oriental Jews and many of the Sephardim of the west covered the entire grave with a flat stone. This may have been the custom in Babylon and perhaps the Talmudic phrase, “when the sealing stone was placed” (Nistam ha-golel, b. Sanhedrin 47b), meant the stone which covered the entire grave. This is the interpretation of the Talmudic phrase given by Rabbenu Tam (Tosfos, ad loc).

The Ashkenazim did not follow this custom of using a horizontal slab which covered the entire grave. Therefore the question, at what part of the grave the stone should be set, could well have arisen among them. But apparently such a question did not find a place in the legal literature. Evidently it did not matter, for we see that with some of the famous rabbis a sort of a tent (ohel) of stones was built all the way around the grave. Thus there were really four tombstones, one on each side and one at the head and one at the foot, and of course there were four inscriptions. If there had been any objection to putting an inscribed stone either at the head or at the foot or at the sides of the grave, they certainly would not have put all four stones (three of which would have been wrongly placed) around the graves of great rabbis.

The late Jekuthiel Greenwald, of Columbus, Ohio, was very meticulous in all matters dealing with this subject; yet in his “Kolbo Al Avelus,” p. 379 top, he says that the custom varies from community to community as to whether to put the tombstone in the middle of the grave, or at the head, or at the foot.

We must add, however, that there have been responsa discussing the question of a nonconforming placement of the tombstone—i.e., if, for example, in the entire cemetery tombstones are at the head of the graves, and at one particular grave it was placed at the foot, there is discussion as to whether this one stone should not be changed to conform. Hence, the answer to the question is that in general there is no law or fixed custom as to the location of the stone with regard to the position of the body, but that it is better to conform with the other tombstones in the cemetery.

RRR 107-109

Name of the Missing on a Tombstone

A widow lost her only son on Bataan in World War II. The body was never recovered. Now she would like to have her son’s name engraved on her husband’s tomb stone. Is there any objection to this? (From Rabbi Eugene I. Hibshman, Sioux Falls, South Dakota)

I do not recall any discussion in the older law dealing with this question and therefore it must be dealt with by anal ogy. If the boy was married, or if it is understood that the boy is missing and not definitely reported as dead, then there could very well be an objection to putting his name on the tombstone of his father. If the government has reported him dead, then according to recent opinions, the government opinion must be accepted and the boy is legally considered dead (cf. Isaac Elchanan Spektor, “Ayn Yitzchok” 19), and therefore there is no objection to putting his name on the tombstone. If, however, the boy was married and the report of the government was merely that he was missing, then there can be objection on the part of the law to putting his name on the tombstone, because this would be equivalent to observing formal mourning for a man who is missing. This is generally objected to on the ground that his wife would take this as permission to be married when really she is not yet proved to be free to remarry (cf. responsum “Funeral Services and Mourning for Those Lost at Sea,” p. 104).

But, of course, if the boy was not married, or if he was married and the government reported him definitely dead, then there can be no objection at all to putting his name on his father’s tombstone. In order to indicate that the body is not buried there, the inscription could be worded as follows:

In Memory of [son’s name] Fallen in Battle on Bataan

Since writing the above, there has appeared a new collection of responsa of tragic interest in modern Jewish history. It is called M’ma’amakim (Out of the Depths) published by Rabbi Chaim Oshry (New York, 1959). Rabbi Oshry was a rabbi in Kovno during the Nazi occupation and his book of responsa gives a vivid record of those tragic days. The Nazis had destroyed Jewish cemeteries all over Lithuania. They removed all tombstones. Therefore it was impossible to know where the graves of any specific persons were.

After the war was over, Rabbi Oshry was asked by a man whose parents had been buried in the cemetery of Ponevesz whether he might arrange for a tombstone for his parents to take the place of the one the Nazis destroyed. Unfortunately, it was impossible now to identify any grave since all the original tombstones were gone. His question was, would it be permitted to set up a tombstone at any selected place in the cemetery in memory of his parents? Rabbi Oshry, discussing the various laws as to the purpose of tombstones, indicates on the basis of responsa, “Yad Yitzchok,” III: 38, that the tombstone is not only for the honor of the dead but also in behalf of the living. Therefore, one of the purposes of the tombstone is to keep the memory of the departed in living memory. Hence Rabbi Oshry answered that this man may put up the tombstone anywhere in the cemetery, even though it is not on the parents’ grave.

Thus in the case of the boy referred to in our question, who was lost on Bataan Peninsula, the inscription on the tombstone is for the purpose of keeping his memory alive, and so such an inscription is permissible and proper.

CURR 141-144

A TOMBSTONE IN ABSENCE OF THE BODY (CENOTAPH)

A group of former immigrants from Central Europe feel the need to visit the graves of their parents, as is traditional. But the parents and other close relatives were murdered during the Nazi period, and there is no possible way of finding their graves, if indeed there are any graves. Their question, therefore, is this: May they (in the Jewish cemetery of Milwaukee, where they live) set up a tombstone where they can visit, and count it as a grave of their parents and other dear ones who have perished?

JEWISH burial and mourning traditions have frequently needed adjustment to the uncertain circumstances of the Jewish life in the Old World. Some of the adjustments made in the law and the customs prove the flexibility of the tradi-tion in providing for the emotional needs of mourning families when the circumstances of the death are unusual. Most of the questions which needed adjustment concern the problem of mourning: When should shiva begin? When should Yahrzeit be observed in the case when a deceased man’s body is no longer to be found; or, indeed, in cases when there can no longer be any proof that the person is actually dead?

The classical decision was made in the twelfth century in the Rhineland by Isaac Or Zorua of Vienna, who said that the moment the family gives up hope, that moment of despair, shall be counted as the moment of death, and mourning, etc., shall begin from that date (Or Zorua, II, Hilchos .Avelus 424; see also Yore Deah 375:6). This indicates at least the willingness of the tradition to adjust itself to the emotional needs of mourners when violence or accident creates the exceptional circumstances that make the body unavailable for burial.

However, the specific question asked here concerns the permissibility of setting up a tombstone in the absence of the body. As far as I know, this question has never come up in the legal literature. It is strange that it has not come up. If the question was frequently asked, “May we say Kaddish if the body was never found,” they could easily have also asked, “May we put up a tombstone if the body was never found.” It would be interesting to speculate as to why this natural question was not asked. It may be because the historic Jewish cemeteries in the Rhineland and in Prague, etc., were so crowded with tombstones that it was often difficult to find a place for those who were actually buried there, much less for those whose bodies were not laid to rest there.

Nowadays the question arises often. Bodies are fre-quently lost at sea or in airplane accidents and are never recovered. The American Military, in cemeteries overseas, have a stone on which is inscribed the names of those missing, and therefore not buried, in the cemetery. In London there is a “cenotaph” right in the middle of one of the main streets, in honor of soldiers who are buried elsewhere or who are missing.

Thus, while there is no discussion in the legal literature about setting up a tombstone where there is no body buried, there is nevertheless a great deal of discussion about tombstones in general, and part of this complex discussion has some relevance here. There is a long debate, going back to the beginnings of Jewish law in the Talmud, as to whether tombstones are meant to be for the honor of the dead or (also) for the benefit of the living. What would be involved in the discussion was whether survivors may dispose of tombstones in case bodies are moved. The whole discussion was summed up in both the Tur and the Shulchan Aruch, Yore Deah 364. Also there is a handy summary of the debate in the responsa of Abraham Isaac Glick, Yad Yitzchok, III:38 (published in Satmar, 1908). What is relevant to our question is that there is a growing body of opinion that the tombstones are also for the benefit of the living. As is said in the above mentioned responsum, the tombstone is for the purpose of directing the survivors to where they can go and pray.

This side of the discussion, that the purpose of the tomb-stone is also to benefit the survivors spiritually, was used in the one responsum which actually deals with almost the same question that you ask. Ephraim Oshry, now rabbi in New York, was, during the Nazi period, in the Kovno con-centration ghetto to which Jews were sent from all over Europe. The Nazis destroyed and plowed over the Jewish cemeteries in the neighborhood. A man came to Rabbi Oshry after the liberation with the following question: Since it is now impossible to locate the graves of his parents and he was accustomed to go to the graves of his parents to pray, what shall he do? Rabbi Oshry advised (responsum M’Mamakim, I:28) that he set up a tombstone anywhere in the cemetery, and that will be an appropriate memorial where he can pray. Oshry uses the argument that tombstones are for the benefit of the living, and also calls atten-tion to the fact that we put up memorials (even memorial plaques with the names of the deceased) in many syna-gogues and schools, far away from where the bodies are buried.

Rabbi Oshry has recently published a second volume of M’Mamakim, in which he returns to the problem in an in teresting and rather touching way: The stones from the Jewish cemeteries had been taken during the Nazi occupa-tion and used as paving stones in certain towns. The ques-tion was, how could Jewish people walk on such paving stones, the inscriptions on which were still legible? He urges that efforts be made to buy those stones, and since the graves to which they belong can no longer be located, since the centuries are plowed up, the tombstones should be set up anywhere in a Jewish cemetery (M’Mamakim, II:20).

Let us, therefore, sum up the situation in Jewish tradition: From the earliest medieval days, adjustments were made (with regard to mourning) when bodies could not be found. With regard to the tombstones, one body of opinion is that they are put up for the spiritual benefit of the living. On the basis of the above, Rabbi Oshry decided that tombstones may be put up, even when the bodies can no longer be located. Therefore, on the basis of the above, a group of you who wish to do so, should set up a tombstone with the inscription of the names that you wish to remember. There can be two or three such stones, perhaps classified according to the cemeteries where they might have been buried had they died normally. Your members from Frankfurt could put up one stone, with all their names recorded, etc. You are free to make one or many stones, as you wish.

The inscription can be easily worked out. It is suggested that you have the usual five Hebrew letters, tav, nun, zadek, bez, heh, which are appropriate because they say, “May their souls be bound up in eternal life.” This can be followed, in English, with: “To the unforgettable memory of our martyred dear ones,” and the list of names. All this is justified on the basis of Jewish law and tradition.

(Originally published in Central Conference of American Rabbis Yearbook, Vol. LXXIV, 1964.)

CORR 236-239

EXCHANGING A TOMBSTONE

QUESTION:

A surviving child desires to exchange the tombstone on her father’s grave, presumably for a more elaborate one. She states that the proposed second tombstone conforms to a request that her father had made. Is it permissible to make such an exchange? (By Rabbi L. Winograd, McKeesport, Pennsylvania)

ANSWER:

IN GENERAL it is deemed praiseworthy in the legal tradition to fulfill a behest of a departed parent. The Talmud in Taanis 21a states it as a principle that “it is a Mitzvah to fulfill the command of the departed.” This Mitzvah applies not only to the disposing of his estate, but also to matters relating to the funeral and to the grave. However, there is a definite restriction as to such requests. No request may be fulfilled which is contrary to the law. Thus, if a man says: “Do not have any funeral eulogies for me,” this request must be fulfilled because the funeral eulogy is for the honor of the dead and he may, if he wishes, say he does not desire that honor. But if he says, “Do not bury me in the ground,” this request may not be fulfilled because it is contrary to the law which requires that the body be buried in the ground.

Now assuming that the father had requested or expressed a wish for some other type of tombstone than the one that is already on his grave, may this wish, namely, to substitute another tombstone, be fulfilled? Is it permitted to exchange a tombstone once it is on the grave? The question involves the status of the tombstone: Is it an integral part of the grave (in which case it may not be removed since it belongs, as it were, to the dead) or is it merely a convenience for the survivors so that they may easily find the grave? If it is merely the latter, then the survivors may do with the tombstone what they wish. They may take it down, put up another, or sell the old tombstone, since it is theirs and does not really belong to the grave. This basic question as to whether it is an essential part of the grave or not, was discussed with relation to another tombstone question in Current Reform Responsa, p. 149 ff. But since the question asked here is really a different one than is discussed there, it needs to be gone into once more.

Greenwald, in his compendium on funeral practices, Kol Bo, p. 385, leaves the matter unsettled as to whether a tombstone may be exchanged. The reason for his uncertainty is that the earlier sources are in themselves divided on the larger question as to whether the living may consider the stone as theirs and may therefore benefit from it. Most of the discussion in the earlier sources is dealt with by Joel Sirkes (“The Bach”) in the Tur, 364. And so Isserles to the Shulchan Aruch (the same reference) leaves the discussion open, saying: Some forbid the living to sit on the tomb stone, but some differ, i.e., it is not quite settled whether the tombstone belongs to the grave and therefore the living may not benefit in any way from it.

Interestingly enough, almost precisely the same question that is asked here was asked centuries ago and is referred to by Azulai in his Birke Joseph, to Yore Deah 342. A widow was dissatisfied when she saw the tombstone that had been put on her husband’s grave. She therefore ordered a larger tombstone but wanted to turn in the smaller tombstone for credit on the cost of the larger tombstone. This was forbidden, namely, to turn in the smaller tombstone for credit, but there was no objection to her exchanging it for a larger tombstone, for that was for the honor of the dead.

So actually there is no real objection to substituting a larger tombstone. The real question is: What may be done with the first tombstone which has been removed? Since there is a large body of opinion among the scholars that the stone actually belongs to the grave and that, therefore, the living may not benefit from it, there is a strong limitation as to what must be done with the original stone. This specific question has come up frequently. For example, the community of Budapest had to evacuate a cemetery (on which they had only a lease) and they were left with tons of tombstones. It would have been too expensive to transport them to the new cemetery. Besides, where should they be placed there? (Cf. Responsea. Maharsham, Swadron II, 122.) A similar question arose in Italy: Because of a lack of cemetery space, tons of earth to a considerable depth were spread to cover all the old graves so that bodies could be buried in the newly placed earth. The old tombstones therefore were not even visible. Perhaps they should have been left there buried, but they were removed from the graves before the new earth was put in. So again there was a question of what to do with the old tombstones. See Isaac of Aboab (Venice, 1610-1694) in his D’var Samuel, #342. Also Menachem Azariah da Fano, Responsum #56 (Rabbi in Venice, 16th century). The answer usually is given that the stones may not be used for private benefit (just as the aforementioned widow could not turn it in for credit) but may be used for the benefit of the cemetery or other communal causes.

Therefore the family, in the question asked here, may substitute a new stone, but the old stone cannot be sold. It may be given to some poor family to be rechiseled for the use of their graves, or it may simply be buried somewhere else in the cemetery.

In Ha-dorom for Nisan, 1970, there is a responsum on emptying out a cemetery by Rabbi Chaim D. Regensburg, pp. 28-35. He comes to the same conclusion with regard to the tombstones and mentions that Isserles, Yore Deah 364a, gives two opposite opinions as to whether it is permitted to have benefit from a tombstone.

RRT 116-123

MOTHER’S NAME ON SON’S TOMBSTONE

QUESTION:

A young chaplain-rabbi was killed in Thailand. His family belong to the Hartford Reform Congregation, Beth Israel. His mother is an active National Sisterhood board member. She asked that the Hebrew inscription on her son’s tombstone should include her name as mother of the deceased. The local funeral director said that this request is improper, that only the father’s name may be used with that of the deceased. Is this correct? What traditional law is involved in this matter? (Asked by Rabbi Harold S. Silver, Hartford, Connecticut.)

ANSWER:

THERE IS VERY LITTLE firm law governing tombstones. Even the latest works that specialize in these matters have comparatively little to say. Greenwald, in his Kol Bo, has only a few pages, beginning with p. 379, and Shalom Schachne Cherniak, in his Mishmeres Shalom, has only a few columns. The reason for the paucity of the law on the matter has some bearing on this discussion.

The main purpose of having a tombstone had changed in the passing years. Originally the stone was meant merely to mark the grave as a warning to Kohanim to know what spot to avoid, a warning which would be especially necessary if the grave were in some open field. Later this purpose for the tombstone changed since cemeteries (and not scattered graves or caves) developed, and the Kohen could simply avoid the cemetery. Now the purpose of the tombstone is not so much to be a warning to the Kohanim to keep away, but as a guide to the family, to tell them where to come to honor the dead or to pray. In other words, the tombstone is now for the benefit of the family. See, for example, the responsum by Isaac Glick ( Yad Yitzchok, III, #38), who says that the tombstone is for the benefit of the living to know where to come and pray. This change of mood as to the purpose of the tombstone should indicate to us, in our specific discussion, that the feelings of the bereaved family deserve sympathetic consideration in all the discussions about the tombstone.

The discussions that have arisen in recent law about the tombstone usually involve three questions: (1) whether it is permitted (as is the custom in certain Orthodox cemeteries) to have a photograph of the deceased on his tombstone (cf. Greenwald, p. 380, n. 1); (2) whether the secular date may be used on the tombstone; (3) whether the tombstone may be used for the benefit of the living (for example, to sit down and rest upon it). The third question has more meaning in the Orient, where the tombstones are not vertical, as with us, but are laid horizontally, somewhat elevated, like a bench over the grave.

As for the answers to these questions, the photograph on the tombstone is generally frowned upon as a practice. The secular date is reluctantly permitted if it is at least accompanied by the Hebrew date. As for sitting on the tombstone, that question has some bearing on our question because what is involved is the question of whether or not the tombstone is, also, for the benefit of the living, as mentioned above. Generally that is answered in the affirmative. So, as mentioned above, the desires of the living should have considera-tion in the discussion of the tombstone.

Now as to the specific question: May the tombstone giving the name of the deceased give his name as the son of his mother rather than, as is generally the usage, as the son of his father? Of course the funeral director (or the rabbi who advised him) would be quite correct if he had merely said that the general custom is to cite a man’s name with his father’s name, as “Moses the son of Amram.” This is the way a man is called up to the Torah, and thus is his name used in the get and other formal documents.

Nevertheless the question must be raised, as it is raised here in this comparatively rare question, whether the general custom of using the father’s name is more than custom but is actual law. Is it wrong to use the mother’s name, describing the man as “Moses son of Yocheved,” instead of “Moses son of Amram”? The answer goes to the heart of our question. The Bible records the name of a well-known Biblical character as the son of his mother and never as the son of his father. King David’s chief general (and his nephew) was Joab ben Zeruah. Zeruah was David’s sister (I Chronicles 11:6). Also in the Talmud there is an Amora whose name was Rab Mari ben Rachel ( Yevamos 92b).

In fact, the great authority of two centuries ago, Ezekiel Landau, in his commentary to the Shulchan Aruch (Dagul Mirvava to Even Hoezer 129:9), speaking of the divorce document, in which the proper rendering of each name is vital, says that in the case of a proselyte we should use his mother’s name instead of his father’s name, and cites the precedent of the rabbi mentioned in the Talmud, Mari the son of Rachel. As a matter of fact, the Pische Teshuvah, at the end of par 26 to the same divorce section, says that if a man is better known by his mother’s name than by his father’s name, that should be used in the get, and he says that it is obvious that if it is written thus, the get is valid.

This permissibility with regard to the divorce document, in which the names have to be precise, is crucial in all discussion of the specific matter involved here. As a matter of fact, there were communities which actually had an established custom of using the mother’s instead of the father’s name on the tombstone. One such community (and it could hardly have been the only one) wrote to David Hoffmann telling of their established custom and wanting to know whether it is correct. He answers (Melamed L’ho-il, Orah Hayyim 23) and says that the tombstones which he had seen of all the great rabbis gives the father’s name and not the mother’s. Nevertheless, if it is an established cus torn in the community to use the mother’s name, the custom should be continued, or at least not be objected to.

Now, why should such an Orthodox authority as David Hoffmann permit the custom of using the mother’s name, when he himself says that the tombstones of the great rabbis that he saw had the father’s name? The answer clearly must be that although most tombstones have the father’s name, this is because that is the usual way of referring to a man, but it does not mean that the mother’s name may not be used. In fact, in his responsum he gives some examples in which the mother’s name is used exclusively. In the prayer before the taking out of the Torah on holidays (Rebono Shel Olom), the suppliant refers to himself by his mother’s name. Also, in the regular text of the Yizkor on holidays, the deceased is referred to as child of the mother. (In our Union Prayer Book, we merely say “father” or “mother” or “brother,” and do not use the personal name at all, but in all the Machzorim where the personal name of the deceased is used in the Yizkor, it is always as the child of the mother.) Also, as he correctly points out, it is a well-established custom, when we pray for the sick, to refer to the sick person by the mother’s name only. This custom is based upon the verse in Psalms 116:16, where the suppliant says: “I am Thy servant, the son of Thy handmaiden.”

For all these reasons and established precedents, David Hoffmann, in spite of the fact that most of the tombstones he had seen used the father’s name, nevertheless was unwilling, in those communities where the custom of using the mother’s name on the tombstone was established, to recommend that the custom no longer be followed.

To sum up: The tombstone is not a matter of strict detailed law but largely of custom. What legal disputes have occurred emphasize the benefit that it brings to the living. Hence their feelings must be consulted and considered. The liturgical literature has many examples in which the mother’s name is used to the exclusion of the father’s name, and there are communities (or there were in Europe) in which the mother’s name was used regularly on the tombstone.

In this specific case, therefore, we can say that there is no real objection to the son being called the son of his mother. In fact, we might follow the decision of Greenwald (pp. 380-81) with regard to the use of the secular date on the tombstone, namely, if the secular date is used together with the Hebrew date, the use of both dates would be permissible. So here, too, we might say that if the mother would consent to having the name of both parents, hers and her husband’s, there could be no objection at all. But if with her husband’s consent (as the inquirer states) her name alone is used as the parent, there is no real ground in the law for objection.

RRT 291-293

PEBBLE ON TOMBSTONE

QUESTION:

What is the basis and meaning of the frequently observed Orthodox custom of visitors to a grave leaving a pebble on the tombstone or the grave? (Asked by Rabbi Fredric Pomerantz, Closter, New Jersey.)

ANSWER:

THERE IS SOMETHING rather surprising about the custom, which can be seen in many cemeteries in America. One would think that a custom so widely observed would be referred to in almost all the books on minhagim. But of all the fairly modern books on minhagim, I was able to find it in only one, and that is a book called Ta-amay Ha-Minhagim by Abraham Sperling-Danzig (first ed., Lemberg, 1896). The book concentrates chiefly on customs instituted by the various Chassidic groups. Therefore it is certainly presumed that it is practiced primarily by the Chassidim. The author explains the custom as follows: “We put grass and pebbles on the grave. It is to show one’s respect to the dead and to show that he [the visitor] was at the grave.” In other words, it is a sort of a visiting card to tell the dead that you have paid him a call.

However, although this is one of the few, if not the only, recent works which refer to the custom, it was certainly known a century or two ago. Actually, the custom and the explanation are quoted word for word from the Be’er Hetev to Orah Hayyim 224:8. And he in turn cites Derashos Maharash as his source.

As to the purpose behind the custom: It is certainly deeper than merely giving notice that one has been at the grave. This can be seen from the earlier form of the custom. Nowadays the people who observe the custom leave a pebble at the grave or on the tombstone, but the Be’er Hetev (end of 17th cent.), quoting his source, says that people left pebbles and/or grass. This fact proves that the custom has a close relationship to the more established custom which is followed at the end of a funeral. The Shulchan Aruch gives this custom in Yore Deah 376:4. Picking up the grass and the earth is in reference to Psalm 72:16: “They shall spring up like the grass of the field” (see Be’er Hetev to Orah Hayyim 547:7: “The grass that is plucked up after the burial of the dead is a symbol of resurrection” ). The custom of plucking and throwing the grass and dust as a symbol of resurrection is referred to by Israel Bruna (15th cent., Germany) in his responsa (# 181) . Therefore it seems evident that the custom of picking up pebbles (or dust and grass) after a later visit to the grave is a repetition of the reverent and devout feeling at the time of the funeral itself, which the visitor to the grave now recalls and experiences anew.

Also, it is quite possible that some Chassidic scholar recommended the practice on the basis of the Midrash which says that when Jacob buried Rachel by the roadside, each of Jacob’s sons took a stone and put it on the grave (see Ginzberg, Legends of the Jews, Vol. V, p. 319, n. 310; the Midrash is found in Lekach Tov 35,20).

NRR 147-151

IS A TOMBSTONE MANDATORY?

QUESTION:

The question has arisen in our community whether it is necessary to have a tombstone on a grave. Does the law or the tradition clearly require it? (Asked by Rabbi Murray Black-man, New Orleans, Louisiana.)

ANSWER:

THERE ARE MANY references to tombstones or monuments in the literature, beginning with the Bible itself. Yet in spite of all these references, it is not clear whether to have a tombstone is a definite requirement of the law. The whole matter of the tombstone is considerably confused, and therefore, if we are to arrive at the responsibility of the family of the deceased, it is necessary to go into the subject historically and rather fully.

There are three references in the Bible. One is Genesis 3 8:20. Jacob put a monument on the grave of Rachel. The second reference is in II Kings 23:17. King Josiah, while on campaign, saw a tombstone (tziun), a marker, on a grave and was told that it marked the grave of a prophet. The third reference is in Ezekiel 39:15, where we are told that after the great wars, officials went through the land to purify it, and where they saw the bones or the body of a man, they put a marker there.

The Hungarian authority Moses Schick (Maharam Schick), in his responsa (Yore Deah 171), says that the Biblical references indicate that it was an unbroken tradition from Biblical times to have tombstones on the grave. But the Talmud (Moed Katan 5a) says that the custom is not based upon what Jacob did or King Josiah saw, but is learned from the reference of Ezekiel.

Broyde, in his article on “Tombstones” in the Jewish Encyclopedia, says that tombstones were unknown in the early days, and that the Jews of Palestine borrowed the custom from the Greeks and Romans, and he points to the fact that most of the inscriptions found were indeed in Greek and Latin. This opinion is probably correct because in Palestine burial was generally in a family cave, in niches, and, therefore, there was less need for identification. However, in early Mishnaic times, not all burial was in family caves. There were certainly many burials in open fields, and it was necessary to mark these accessible graves so as to keep Kohanim from blundering onto them. Therefore, as the Mishnah Shekalim 1:1 says, on the first of Adar each year the graves were marked. Bertinoro explains that white plaster was put on the graves, so that the priests should see them and avoid them. And since this white plaster would wear away, it was necessary to remark (repaint) the graves every year. Of course, this sort of marking does not mean that there were tombstones. Any mark would have been sufficient to warn off the priests.

However, there is a Mishnaic statement which clearly indicates the actual use of tombstones. In Mishnah Shekalim 2:5 we are told that if money is collected for the burial of the deceased, what is left over after the burial can be used to build a nefesh on his grave. This is the opinion of Nathan, but it is not the accepted law. The law is that the money left over is to be used, not for a tombstone (nefesh), but for other burials. Nefesh means some sort of stone structure. When the same statement is quoted in the Midrash {Genesis Rabba 82:10), instead of nefesh the word bayis is used, which indicates that this was a houselike structure. We know, for example, that Simon the Maccabee built an elaborate structural tomb over the grave of his father and brothers (see I Maccabees 13:27 ff.). Perhaps it was in reaction against this elaborate monument that Simon ben Gamliel said (j. Shekalim 2:5): “We should not put up a nefesh [an elaborate tombstone] for the righteous; their words are their true memorial.” But later commentators in defense of the tombstone said that Rabbi Simon ben Gamliel objected only to an elaborate structure, but not to a tombstone.

There certainly were tombstones in Talmudic times. The Talmud (Horayos 13b), mentioning the various types of action which would cause a man to forget his learning, counts in the list “reading the writing on a grave.” Evidently, then, there were stones with inscriptions, but this does not prove that such an inscribed stone was compulsory for every grave.

The medieval authorities find justification for the use of the tombstone. Asher ben Yechiel, in his responsa 13:19, indicates that if it is customary in the family to have a tombstone, then it is to be counted among the actual needs of the burial. Solomon ben Aderet, in his responsa # 3 7 5, says that the stone is for the honor of the dead. And in his responsa, pt. 7, # 5 7, gives, as far as I can see, the first actual statement mandating a tombstone. He says that the husband is in duty bound to provide a tombstone for his wife’s grave. (By the way, Greenwald, in his Kol Bo, top of p. 379, gives an incomplete and therefore a misleading reference. He says that the reference is Solomon ben Aderet, #57; he leaves out the necessary part, “pt. 7.”)

It is on the basis of this statement of Solomon ben Aderet that the Shulchan Aruch gives it as a law (in Even Hoezer 89:1) that the husband is in duty bound to provide for the wife’s burial and included in that duty is supplying a gravestone. The phrasing of Caro in the Shulchan Aruch would indicate that the gravestone is really an adjunct, and, in fact, this is the mood of the comment of Joel Sirkes, the Bach, to the Tur, Yore Deah 348, who says that what must be provided is “even what is not indispensable to the burial,” namely, the stone.

The same offhand reference to the tombstone, implying that it is not quite essential, is in the Shulchan Aruch, Yore Deah 348:2, namely, “We compel the heirs of the man to provide all the needs of the father’s burial and that they must include all that is in accordance with his family’s custom, even the tombstone.” So from the above it becomes clear that the tombstone is required if it happens to be the family custom to have one, but is not mandatory otherwise. The dubious status of the tombstone is finally removed by the opinion of Abraham Benjamin Sofer, the son of Moses Sofer, in his responsa K’sav Sofer, Yore Deah 178. He says, “Where it is customary to set up tombstones, there they are to be considered an essential part of the burial of the dead.”

To sum up, as much as we can, all the above uncertainties as to the status of the tombstone, we may properly follow the opinion of Abraham Benjamin Sofer, namely, that it has now become customary in all Jewish communities to have a tombstone for the honor of the dead. The tombstone serves many purposes. One scholar (Isaac bar Sheshes, 421) says that the name is to be remembered thereby. Another, that it is an honor to the dead to come to pray there, and therefore we must know where the dead is buried. Also (as Abraham Sofer adds), if all other graves are provided with tombstones and this one grave were deprived of one, it would shame the dead who is buried there. It is for these reasons that the tombstone has become an established custom, and to the large extent to which it is true that Minhag Yisroel Torah Hi —i.e., that an established worthy custom of Israel is to be considered as law—we may say that in our age and in our communities, the tombstone with the name of the departed has indeed grown to be law and is mandatory.

TRR 117-119

WHEN TO SET THE TOMBSTONE

QUESTION:

There is a widespread custom in the community not to set the tombstone until a full year has passed after the death. This custom is followed by members of various types of congregations in the community. Is this twelve-month wait a requirement of the law? (Asked by I.E., Pittsburgh, Pennsylvania.)

ANSWER:

There is no question that it is a widespread observance to wait twelve months after the death before setting the tombstone. Hirshowitz in his Minhagei Yisrael gives this twelve-month wait as an established custom which needs no comment. And Eisenstein in his Otzar Dinim is even more emphatic. He says that the tombstone is to be set twelve months after the death and no later.

This widespread custom has certain justifications. It is held that the departed are constantly in the heart of the mourners for twelve months (and so they need no permanent memorial like a tombstone until twelve months have passed). A second reason is given, that the tombstone is something additional and special; and mourners, before the year has passed do not feel like setting it up.

So one would think that such a widespread custom which also has some reasoning behind it would be well established in the law as a requirement. But actually that is not so. The law, as strict law, is entirely different. Eliezer Spiro, the Chassidic authority a generation ago, in his Minhat Eliezer Vol. III, #37, declares the custom to be a mistaken one. He bases his decision on the fact that according to the Jaw, the head of the household, during the seven days of mourning (shiva) may leave the family to go and provide for the tombstone. If it were proper to wait a year, the law would not give him permission to be so urgent to provide for the stone. As a matter of fact, the law as strict law seems to be that one must provide for the tombstone as soon as possible after the week of mourning; and as a matter of significant precedent, Moses Sofer set the tombstone for his departed wife immediately after shiva and so, also, did Chaim of Sanz (the author of Shivat Hayyim). These and other statements of the actual law are collected by Greenwald in his Kol Bo, p. 379 ff. Cf. also She-slat Yitzhaq Vol. 2, 161.

We have, then, here a classic example of a confrontation between an established custom (to wait twelve months) and the clear law (not to delay the setting of the stone). This confrontation between custom and law has frequently occurred in Jewish life. See Isaac Lamperonti in Pahad Yitzhaq, the pages of reference under the heading minhag mevatel halakhah.

Therefore in this case there is clearly freedom of action. The custom of waiting a year is not at all binding. Of course a person may not want to arouse discussion in the community if the tombstone is set earlier, but if for any good reason it is important that the tombstone be set earlier, the law supports that action.