Priority:

By: Executive Committee of the Editorial Board. , Lewis N. Dembitz

The rules as to priority among deeds conveying the lands of a grantor, or among bonds operating as liens upon all the obligor's lands, have been indicated under Alienation . It remains to speak as to priorities in the case of a widow or divorced wife making claims under her "ketubah" and the ordinary creditors of the husband. The Talmudic sources for the rules of priority in either class of cases are the Mishnah and the Gemara thereto (Ket. 73b-74a, b).

The covenant which the husband enters into in the ketubah, to restore upon death or divorce the dowry brought to him and which he receives at a money valuation, as an "iron flock" of unchangeable value, creates a simple debt like one arising by loan or by purchase of goods. This is the opinion of Maimonides, who is followed therein by the later codes. As against landed estate, owned before the contract, it ranks according to time of delivery; against after-acquired lands or personal property (the latter being made liable by the institution of the Geonim), diligence in collection will generally give priority; and here the widow naturally holds the advantage.

But as to the jointure, or ketubah proper, whether the legal minimum of 200 or 100 zuzim or any "addition" is concerned, the position of the widow is not so favorable. True, where the marriage contract has land to operate on, since it is a "sheṭar" attested by two witnesses, its lien will take rank above all bonds delivered at a later time, and above all debts not assured by bond; but where only one piece of land is acquired after the date of the ketubah, or where, as is much more frequently the case, the husband has no land at all, and the contest is between the widow and an ordinary creditor, the former loses on the ground that the ketubah (if not secured by lien) is to be paid only from the husband's net estate.

But if, either unaided or with the aid of the court, the widow succeeds in collecting the amount of the jointure before the husband's creditors (whether by bond or parole) have intervened, she stands according to some authorities (and these are followed by R. Joseph Caro in the text of Eben ha-'Ezer, § 102) in a better position: "they do not take it away from her"; but Isserles, in his gloss, inclines to the opposite opinion on the strength of his usual "yesh omerim" (= "there are those who say").

Where a man marries several women, which is the case supposed by the Mishnah in the passage quoted, the ketubah of the first wife takes precedence, as a bond or sheṭar in the lien on lands, over the ketubah of the second; and so on; but if there is no land on which to operate, the several wives have equal rights in so far as the collection of payment is concerned.