R. Kahana, [however], said to him: If [her husband] had [subsequently] bought other property would she not [have been entitled to] seize [it]?1 Now, since if he had bought other property she would [have been entitled to] seize [it],1 in this case too she [is] also [entitled to] seize [the dead daughter's third].2
[Once] a certain [dying] man divided his estate between his wife and his son, [and] left over one palm-tree.3 Rabina intended to give his decision [that] she4 can only have5 [that] one palm-tree.6 R. Yemar, [however], said to Rabina: If she had no [claim upon the son's share], she [should] have no [claim] even [upon] the one palmtree.7 But since she may seize8 the palm-tree she may also seize8 all the estate.9
R. Huna said, [if] a dying man assigned all his estate, in writing, to another [person]10 the matter is to be investigated.11 If he12 is entitled to be his heir, he receives it as an inheritance; and if not, he receives it as a gift. R. Nahman said to him: Why should you indulge in circumlocution!13 If you hold [the same view] as R. Johanan b. Beroka,14 say, 'The halachah is according to R. Johanan b. Beroka', for, indeed, your statement runs on [the same lines] as [those of] R. Johanan b. Beroka? [But], perhaps, you meant [your statement to apply to a case] like the following.15 Once, while a person was in a dying condition he was asked to whom his estate shall be given. '[Shall it] perhaps [be given] to X?' he was asked. And he replied to them, 'To whom [else] then?' And [is it] on [such a case as] this [that] you told us, '[If that person] is entitled to be his heir he receives it as an inheritance, and if not, he receives it as a gift?' — He replied to him: 'Yes, this [is exactly] what I meant'.
In respect of what legal practice?16 — R. Adda b. Ahabah wished to explain17 before Raba [that] if he18 is entitled to be his heir his19 widow is maintained out of his estate,20 and if not, his19 widow is not maintained out of his estate.20 Raba, however, said to him: Should she be worse off [in the case of a gift]? If21 in [the case of] an inheritance which is Biblical,22 it has been said [that] his19 widow is to be maintained out of his estate,23 how much more [should that be so] in [the case of] a gift24 which is only Rabbinical?25 But, said Raba, [the difference26 lies in a case] like [the following] which [was] sent [by] R. Aha son of R. 'Awya: According to the view of R. Johanan b. Beroka, [if a dying man said], 'My estate [shall be] yours, and after you [it shall be given] to X', if the first was [one] entitled to be his heir, the second has no [claim] whatsoever beside the first, for this is not a [specific] expression of 'gift' but [rather] of 'inheritance', and an inheritance cannot be terminated.27 Raba said to R. Nahman: Surely, he28 has [already] intercepted it!29 — He thought [erroneously] that it could be intercepted but the All-Merciful said, 'It cannot be terminated'.30
Original footnotes renumbered.
- In payment of her kethubah. She only renounced her claim upon that property which her husband gave to his daughters at the time her share was assigned to her.
- Lit., 'now'. The third that her husband inherited from his dead daughter is regarded as new property acquired by him after the assignments were made. (V. previous note).
- Which he assigned to no one.
- The widow.
- In payment of the balance of her kethubah.
- She has no claim, however, on the share which the son received. Since a wife is assumed to renounce her claims in the case where her husband assigned to others all his estate with the exception of any small fraction allotted to her, she must also be assumed to have renounced her claims in this case, where only one palm-tree was not disposed of, in consideration of the share allotted to her.
- Just as she renounced her claim upon the share of the son in consideration of the share allotted to her, so she must have renounced her claim upon the palm-tree. She well knew that besides her share, her husband had no property other than that palm-tree and the share assigned to the son. As she forfeits her rights in the case of the one, so she should forfeit them in the case of the other.
- Lit., 'go down'.
- Even the share that was given to the son. A wife is assumed to renounce the claims to which her kethubah entitles her only when her husband had disposed of all his estate, in which case she must have known that nothing was left for her kethubah and, since she did not protest, she must have acquiesced in its forfeiture. When, however, one palm-tree remains, she is assumed to rely on the proceeds of that tree for the payment of the kethubah. Consequently, she does not renounce her rights; and her silence is assumed to be due to a desire for postponing her protest until the value of the tree had been ascertained. When, therefore, it becomes known that the palm-tree does not cover the amount of her kethubah, she is entitled to seize any other part of the estate also.
- Not specifying whether as an 'inheritance' or as a 'gift'.
- Lit., 'we see'.
- The assignee.
- 'O thou cunning man, what is the use of thy going round about?' (Jast.).
- That one has a right to assign all his estate to one of his legal heirs, V. supra 130a.
- I.e., to a case when the testator had no sons or daughters, contrary to the opinion of R. Johanan b. Beroka who allows it even when there is a son or a daughter (R. Gersh.). According to Rashb., the suggestion of R. Nahman is that R. Huna wishes to state the case where the testator was vague in his instructions and did not declare whether the bequest was to be in the terms of a gift or those of an inheritance.
- Does it matter whether the estate was given as a gift or ass 'inheritance'?
- This difference.
- The person named.
- The testator's.
- Which he inherited from her husband.
- Lit., 'now'.
- The laws of inheritance are enumerated in Numbers and Deuteronomy.
- V. p. 558, n. 11.
- Made by a dying man without a properly binding agreement.
- According to Biblical law a gift made in such a manner is not legally binding and remains part of the estate.
- Between 'gift' and 'inheritance'.
- V. p. 540, n. 10 and 11, supra. Similarly, in the case under discussion, if the dying man said, in reply to the question whether his estate shall be given to a certain person, 'To whom else? But after him it shall be given to a certain other person,' the second is entitled to receive it only if the first was not a legal heir and received it as a gift.
- The testator.
- By making the assignment of the estate to the first conditional upon its being transferred later to the second.
- Since the divine word prohibits interception of the succession no one has the right to make arrangements which disagree with it.
Baba Bathra 133b
Once a certain man said to his friend, 'My estate [shall be] yours and after you [it shall pass over] to X'. The first [was one] entitled to be his heir.1 [When] the first died, the second came to claim [the estate]. R. 'Ilish proposed in the presence of Raba to give his decision2 that the second also is entitled to receive the bequest.3 [Raba, however], said to him, 'Such decisions are given by arbitration judges,4 [is] not [the case exactly] the same as [that] which [was] sent [by] R. Aha son of 'Awya?'5 As he6 became embarrassed, [Raba] applied to him the Scriptural text. I, the Lord, will hasten it in its time.7
MISHNAH. IF A PERSON GIVES HIS ESTATE, IN WRITING, TO STRANGERS, AND LEAVES OUT HIS CHILDREN, HIS ARRANGEMENTS ARE LEGALLY VALID,8 BUT THE SPIRIT OF THE SAGES FINDS NO DELIGHT IN HIM.9 R. SIMEON B. GAMALIEL SAID: IF HIS CHILDREN DID NOT CONDUCT THEMSELVES IN A PROPER MANNER HE WILL BE REMEMBERED FOR GOOD.10
GEMARA. The question was raised whether the Rabbis11 were in disagreement with [the view of] R. Simeon b. Gamaliel12 or not. — Come and hear, Joseph b. Joezer,13 had a son who did not conduct himself in a proper manner. He had a loft [full] of denarii14 and he consecrated it [for the Temple]. He, [the son], went away and married the daughter of King Jannai's15 wreath-maker. [On the occasion when] his wife gave birth to a son he bought for her a fish. Opening it he found therein a pearl. 'Do not take it to the king', she said to him, 'for they will take it away from you for a small sum of money.16 Go take it rather17 to the Treasurers [of the Temple], but do not you suggest its price, since the making of an offer to the Most High18 is [as binding] as [actual] delivery in ordinary transactions.19 But let them fix the price'. On being brought [to the Temple]20 it was valued at thirteen lofts of denarii.21 'Seven [of them]', they said to him, 'are available, [but the remaining] six are not available'.22 He said to them, 'Give me the seven; and the six23 are, [hereby]. consecrated to the Temple'.24 Thereupon it was recorded,25 'Joseph b. Joezer brought in one, but his son brought to six others say, [the record read as follows]: 'Joseph b. Joezer brought in one, but his son took away seven'. Now, since the expression used [in the record26 was], 'he27 brought in', it may be inferred that [in their opinion] he28 acted rightly.29 On the contrary! Since the expression used30 was, 'he took out', it may be inferred that he did not act rightly.31 But [the fact is that] from this [record] nothing may be inferred.
What, then, is the answer to the enquiry?32 — Come and hear: Samuel said to Rab Judah. 'Shinena'.33 Keep away from34 transfers35 of inheritance even [if they be] from a bad son to a good son, much more [when they are] from a son to a daughter'.36
Our Rabbis taught: Once it happened with a certain person whose sons did not conduct themselves in a proper manner [that] he took the definite step of assigning his estate, in writing,37 to Jonathan b. Uzziel. What did Jonathan b. Uzziel do? — He sold a third,38 consecrated a third, and returned a third to his39 sons. [Thereupon], Shammai came upon him with his staff and bag.40 He41 said to him, 'Shammai! If you can take back what I have sold and what I have consecrated, you can [also] take back what I have returned;42
Original footnotes renumbered.
- The testator's.
- Lit., 'to say'.
- Since the rights over the estate were given to the first during his lifetime only, they cease with his death.
- I.e., judges whose knowledge of the law is not extensive enough to enable them to give legal decisions, and they consequently have recourse to arbitration (Rashi. and R. Gersh.). 'Graveyard judges' (R. Han.).
- Since the first was entitled to be legal heir, the succession cannot be terminated.
- R. 'Ilish.
- Isa. LX, 22, i.e., he need not worry too much about the slip he had made, since he was saved in time from giving effect to a wrong decision.
- Lit., 'what he has done is done'.
- Though his action is strictly legal, it is not human.
- His action will serve as a warning to wicked children.
- The authors of the first part of our Mishnah.
- I.e., do they object to the disinheritance of bad children?
- [Identified by Weiss, Dor, I, 107, with Jose, the first of the Pairs (v. Aboth I, 5) who had been put to death by the renegade High-Priest Alcimus. Buchler, The Hebrew University, Jerusalem Inauguration, Hebrew part, 79, shows the untenability of this view, and suggests Jose b. Joezer, the Priest (v. Hag. II, 7) who lived in the days of Agrippa II.]
- I.e., a large sum of money.
- [Identified variously either with Jonathan, son of Mattathias, or Agrippa who appears elsewhere in the Talmud under this name. (V. Buchler, ibid.)]
- Lit., 'for light money'.
- Lit., 'go bring it.'
- I.e., Temple of God.
- Lit., 'to an ordinary person.' Once the seller made an offer in a Temple transaction, the price can no more be raised, however much the object may have been undervalued.
- Lit., 'he brought it'.
- Cf. p. 560, n. 8.
- I.e., the Treasury had no funds wherewith to pay the full amount of its value.
- The balance of the price.
- Lit., 'heaven'.
- Lit., 'they stood and wrote'.
- According to the first version.
- The son.
- The father.
- 'Brought in', is all expression of approval, and it implies that the father's act was meritorious and resulted in the moral improvement of the son. Since, also, the wording if the record met with general approval, as evidenced by the statement 'they (1.e. all) stood and wrote', the Rabbis are obviously of the same opinion as R. Simeon b. Gamaliel.
- According to the second version of the record.
- 'Took out', is an expression of disapproval of the act of the son which reflects also on the action of the father. The fatherly act was, accordingly, regarded by the Rabbis with disfavour. (Cf. n. 10). Hence they must be in disagreement with R. Simeon b. Gamaliel.
- Lit., 'what is about it'.
- [H] (root [H], 'sharp'); (i) 'keen witted', [(ii) 'long-toothed', denoting some facial characteristic; (iii) 'man of iron endurance' (Bacher).]
- Lit., 'be not among.'
- I.e., from one who is legally entitled to be heir.
- Since Samuel's opinion (being that of an Amora) must be in agreement with one at least of the Tannaim, and since his opinion is clearly in direct contradiction to that of R. Simeon h. Gamaliel, it is obvious that Samuel must have had as his authority the view of the Rabbis (the authors of the first part of our Mishnah). Thus it follows that the Rabbis are in disagreement with R. Simeon b. Gamaliel in maintaining, like Samuel, that even a bad son must not he disinherited.
- Lit., 'he stood and wrote his estate'.
- The proceeds of which he retained for himself.
- The testator's.
- I.e., he objected vehemently to his return of the one third to the sons, maintaining that, though he did not say it explicitly, the deceased gave his estate to Jonathan for the express purpose of depriving his sons from any share in it; and since it was the duty of Jonathan to carry out the dead man's wishes, his gift of one third to the sons is invalid, and must be taken from them.
- To the sons.