Babylonian Talmud: Tractate Baba Bathra

Folio 135a

[Once] a certain [man] was dying.¹  Being asked to whom his wife [was permitted to be married²  and] he replied to them, 'She is suitable for the High Priest',³  [in considering this case], Raba said: What is there to apprehend?⁴  Surely R. Hiyya b. Abba said in the name of R. Johanan [that] a husband who said, 'I divorced my wife' is believed.⁵  Abaye said to him: But, surely, when R. Isaac b. Joseph came, he said in the name of R. Johanan [that] a husband, who said, 'I divorced my wife', is not believed! — He said to him: Is he not? Surely it has been explained that one⁶  [report speaks] retrospectively and the other⁶  as to the future! Shall we then,⁷  [came the reply], rely upon an explanation?⁸  [Thereupon] said Raba to R. Nathan b. Ammi: Take this into consideration.⁹

A certain [person] was known¹⁰  to have no brothers,¹¹  and at the time of his death he declared that he had no brothers, [in considering the case.] R. Joseph said: What is there here¹²  to apprehend? In the first place¹³  it is known that he has no brothers, and secondly¹⁴  he [himself] has declared at the time of his death that he had none. Abaye said to him: But [people] say that in the countries beyond the sea¹⁵  there are witnesses who know that he has brothers! — 'Now, at any rate [replied the other, 'they are not before us'.¹⁶  [Is] not [this case] the same as that of R. Hanina? For R. Hanina said: Shall she¹⁷  be forbidden [because there are] witnesses at the North Pole!'¹⁸  Abaye said to him: Shall we relax [the law] in [the case of] a married woman¹⁹  because²⁰  we relaxed [it] in [the case of] a captive woman?²¹  [Thereupon] said Raba to R. Nathan b. Animi: Take this into consideration.²²

THIS IS MY BROTHER', HE IS NOT BELIEVED. And what do the other [brothers] say? If they say. 'He is our brother', why should he [only] take [a share] with him²³  in his portion and no more?²⁴  [If], however, they say, 'He is not our brother', [how will you] explain the latter [clause]: [IF, HOWEVER,] HE ACQUIRED PROPERTY FROM ANOTHER SOURCE, HIS BROTHERS SHARE THE INHERITANCE WITH HIM. [Why should they inherit?] Surely they had declared of him, 'He is not our brother'! — [This law is] required [in the case] only where they say, 'We do not know'.²⁵

Raba said: This implies [that if a person claims from another], 'You owe me a maneh' and the other replies. 'I do not know, he²⁶  is exempt.²⁷  Said Abaye:

1. Who had brothers but no sons.
2. I.e., whether she was subject to the laws of levirate marriage.
3. I.e., 'she may marry anyone' having been divorced by him. 'High Priest' is thus not to be taken literally, since even a priest is forbidden by law to marry a divorced woman (v. Rashb. and Tosaf.) [Yad Ramah, a.l., explains that the marriage had not been consummated and the husband claimed the annulment thereof because it had been contracted on a certain condition which was not fulfilled, in these circumstances the woman might be allowed to marry even a High Priest.]
4. If she is exempted from the levirate marriage.
5. For the reason stated supra. Similarly, here, since he said that she may marry anyone, i.e., that he had divorced her (or, owing to the non-fulfilment of the condition on which the marriage was contracted), he is believed.
6. Lit., 'here'.
7. Lit., 'shall we rise'.
8. It is still possible, despite the explanation, that the matter is in dispute between Amoraim, and that according to one opinion the husband's evidence in such a case is not accepted at all.
9. I.e., the widow must not marry without obtaining halizah (v. Glos.)
10. But there was no legal evidence.
11. It was certain, however, that he had no children.
12. In allowing the widow to marry.
13. Lit., 'one'.
14. Lit., 'and again, surely'.
15. Lit., 'country of the sea'.
16. And one need not go to the ends of the earth to discover witnesses in order to restrict the widows freedom.
17. The incident related to the daughters of Samuel, who were in captivity; and when brought to Palestine, declared that their honour was not violated. R. Hanina allowed them to be married to priests, who are forbidden to marry a woman whose chastity had been violated.
18. Goldschmidt. Heb., istan, [H] 'the north wind'. Cf. Assyr. is-ta-na-ni ( = north), C. J. Gadd, Tablets from Kirkuk in Revue d'Assyriologie, vol. XXIII, no. 34, line 12, and il-ta-an ( = north) op. cit., no. 2, line 6, and passim.
19. Lit., 'wife of a man', where the assumption is that she is subject to the laws of the levirate marriage.
20. Lit., 'if'.
21. In this case the captive is entitled to the benefit of the doubt, since there is the assumption that she as a woman protected her chastity and honour.
22. I.e., do not allow her to marry before complying with the laws of halizah.
23. With the brother who acknowledged him.
24. He should receive all equal share with all the brothers.
25. He cannot claim a share in their portions since he has no legal proof of the brotherhood. They, however, are entitled to be his heirs since both he and the brother who acknowledged him admitted that they were brothers.
26. The defendant.
27. He need not pay the claim. It is incumbent upon the claimant to produce the proof; v, B.K. 118a; B.M. 97b.

It may still be maintained [that he is] liable,¹  but here [the case is] different,²  for it resembles [the case where one states]. 'You owe a maneh to another [person]'.³

IF HE DIES THE PROPERTY REVERTS TO ITS OWNER [etc.]⁴  Raba inquired: What [is the law in respect of] the natural appreciation of the estate? As regards appreciation which reaches the carriers⁵  there is no question at all,⁶  since this resembles PROPERTY ACQUIRED FROM OTHER SOURCES.⁷  The question, however, arises [as to] what [is the law] in [the case of] appreciation which does not reach the carriers as, for example, [where he⁸  gave him] a palm-tree and it grew stronger [or a plot of] land and it yielded alluvial soil.⁹  This remains undecided.

MISHNAH. IF A PERSON DIED AND A WILL¹⁰  WAS FOUND TIED TO HIS THIGH,¹¹  IT IS OF NO LEGAL VALUE.¹²  IF THEREBY¹³  HE¹⁴  MADE AN ASSIGNMENT¹⁵  TO SOMEONE,¹⁶  WHETHER [THIS PERSON IS ONE] OF THE HEIRS OR NOT, HIS¹⁷  INSTRUCTIONS ARE LEGALLY VALID.¹⁸

GEMARA. Our Rabbis taught: What is a deyathiki?¹⁹  — Any [deed] in which is written, 'This is to stand and to be'.²⁰  And which is a [legal] gift?²¹  — Any [deed] in which is written, '[Acquire the gift]²²  from this day, and²³  after my death'. But, [accordingly], a gift would be [legal only when it is written] 'from this day, and after my death',²⁴  [if. however, it were written].'from now²⁵  the gift would not be [legal]?²⁶  — Abaye replied: [It is] this that was meant: 'Which is the gift of a person in good health that is [regarded] as the gift of a dying man in that no possession [of its fruit] is acquired until²⁷  after death? — Any [deed] in which it is written, "from this day and after my death".'

Rabbah, son of R. Huna sat in the hall,²⁸  of the school-house,²⁹  and reported [the following statement] in the name of R. Johanan: [If] a dying man said, 'Write [the deed] and deliver a maneh to X', and he died,³⁰  they [must] neither write not deliver, since it is possible³¹  that he has determined to give him the right of ownership by means of the deed only, and no deed [may be the means of acquiring possession] after [the testator's] death. R. Eleazar said to them, 'Be careful about this'.³²  R. Shezbi said [that] R. Eleazar had reported it, and [that] R. Johanan said to them, 'Be careful about this'.

R. Nahman b. Isaac said: Logical reasoning favours the opinion of R. Shezbi. [For] if it be said that R. Eleazar had reported it, it was quite right [for] R. Johanan to corroborate his statement;³³  if, however, it be said [that] R. Johanan had said it, [was] it necessary [for] R. Eleazar to corroborate the view of R. Johanan his master? And, furthermore, come and hear [the following which proves] that R. Eleazar had recited it. For Rabin sent in the name of R. Abbahu: Be [it] known to you that R. Eleazar has sent [word] to [those in] the diaspora³⁴  in the name of our Master³⁵  [that] if a dying man said, 'Write and deliver a maneh to X', and he died, they must neither write nor deliver, since it is possible that he has determined to give him the right of ownership by means of the deed only, and no deed [may serve as a means of acquiring possession] after [the testator's] death. And R. Johanan said,³⁶  '[The matter]³⁷  shall be investigated'. What is meant by, 'it shall be investigated'? — When R. Dimi came³⁸  he said:³⁹ [i]. [One] will annuls [another] will.⁴⁰  [ii], [If] a dying man said, 'Write [a deed] and give a maneh to X' and he died, [his motive] is inquired into.⁴¹  If [it was] to strengthen his claim,⁴²  [the deed] is written; but if not,⁴³  it is not written.⁴⁴

R. Abba b. Memel raised an objection: [It was taught,] 'If a person in good health said, "Write [a deed] and deliver a maneh to X", and he died, they must neither write nor deliver.' But, [it follows,⁴⁵  in the case of] a dying man, they may both write and deliver!⁴⁶  — He raised the objection and he himself explained it: [This refers to the case] where [the testator desired] to strengthen his⁴⁷  claim. How is one to understand [whether a testator desired] to strengthen [the beneficiary's] claim?

1. Since the one party is certain of its claim while the other is doubtful.
2. The doubtful brother does not himself advance a certain claim, but one of his brothers does that for him, so that as far as he is concerned his claim is as doubtful as that of the other brothers.
3. One of the brothers claims that the others owe a share to the brother whose claim is disputed.
4. Cf. BaH. a.l.
5. I.e., fruit, which is carried in baskets. If the land given to him by the brother who acknowledged him was fallow and he improved it so that it produced quantities of fruit. Heb. [H] 'carriers', with the Lamed of the dative. R. Tam reads [H] 'shoulders', with the Lamed of the instrument; i.e., appreciation due to hard and strenuous work (v., supra 42b, Tosaf. s.v., [H].) Cf. 'putting the shoulder to the wheel', a barren track was turned into a fruit-producing field.
6. That all the brothers are entitled to have shares in it.
7. Which, according to our Mishnah, is shared by all the brothers.
8. The brother who acknowledged him.
9. And similar cases where there is no appreciation that can be carried away, or that had been brought about by human effort, in such cases there might apply the law that 'the property reverts to its owner,' that is, the brother who had given it to him.
10. Heb. deyathiki [H], [G].
11. I.e., even on his thigh, in which case it is obvious that the deceased himself had written it,
12. Lit., 'this is nothing'. The person to whom a bequest was made in this will is not entitled to receive it; since possession is to be acquired by means of the receipt of the will, and since, at the time it reaches him, the owner, being dead, is not there to transfer to him the right of ownership.
13. I.e., by the handing over of the will,
14. The testator.
15. While he was still alive.
16. Lit., 'to another'. I.e., if when handing over the will to the assignee he said that thereby he desired to confer upon him the ownership of the bequest mentioned in it.
17. The testator's.
18. Even if the assignee is not the testator's legal heir, and even though his name is not mentioned in the will, he receives all that is enumerated in it. The verbal instructions of a dying person are legally binding.
19. V. note I. The question is, which kind of will entitles one to acquire ownership of an estate after the death of the testator, in the case where 'immediate' acquisition is not provided for?
20. I.e., after death. [H] a play upon the word [H].
21. Of a person in good health.
22. I.e., the property itself,
23. Its produce.
24. I.e., where 'after my death' was explicitly added to 'from this day'.
25. Without the addition of 'after my death'.
26. How is this possible? Surely, the expression, 'from now, without any additions, rather implies that both land and produce are given to the recipient at once.
27. Lit., 'but'.
28. [G].
29. Taking [H] as meaning, 'teacher', v. supra 11b.
30. Before his instructions were carried out.
31. Lit., 'perhaps'.
32. I.e., this is the accepted law,
33. It would be quite natural and necessary for the master (R. Johanan) to corroborate the view of his disciple (R. Eleazar).
34. [Heb. [H] denoting generally Nehardea, the earliest and most important centre of Babylonian Judaism; after its destruction in 259 by Odenathus its place was taken by Pumbeditha, which then became also known as Golah (v. R.H. 23a and Lewin, Methiboth I).]
35. Rab, or Abba Arika,
36. in amplification of the previous statement.
37. Whether the testator wished the beneficiary to acquire possession by means of the receipt of the deed only.
38. From Palestine.
39. He made two statements, the second of which explains the method of the investigation.
40. A dying man who bequeathed his estate in his will to one person can cancel this by making a second will in favour of another person.
41. Lit., '(they) see'.
42. That the beneficiary shall have documentary proof of the gift.
43. If the object of the deed was to make acquisition of the gift dependent upon the receipt of the deed by the beneficiary.
44. For it is possible that the testator had since changed his mind.
45. Since a person 'in good health' had been mentioned.
46. Because a dying man's instructions must be scrupulously adhered to. How, then, could it be said above that his motive must be inquired into first?
47. The beneficiary's.