Bava Batra 9

מִי שֶׁמֵּת וְהִנִּיחַ בָּנִים וּבָנוֹת, בִּזְמַן שֶׁהַנְּכָסִים מְרֻבִּים, הַבָּנִים יִירְשׁוּ וְהַבָּנוֹת יִזּוֹנוּ. נְכָסִים מֻעָטִין, הַבָּנוֹת יִזּוֹנוּ וְהַבָּנִים יִשְׁאֲלוּ עַל הַפְּתָחִים. אַדְמוֹן אוֹמֵר, בִּשְׁבִיל שֶׁאֲנִי זָכָר הִפְסַדְתִּי. אָמַר רַבָּן גַּמְלִיאֵל, רוֹאֶה אֲנִי אֶת דִּבְרֵי אַדְמוֹן:

If one died and left sons and daughters — When the inheritance is ample, [sufficient to feed the sons and the daughters until the daughters are grown], the sons inherit and the daughters are fed (by them). When the inheritance is scant, [i.e., insufficient for the above], the daughters are fed (from it) and the sons go soliciting at the doors. Admon says: "Because I am a male shall I lose out!" [i.e., I should not lose out; we should all be fed together.] R. Gamliel said: "I concur with Admon." [The halachah is not in accordance with Admon. And they (the sages) made a widow in respect to a daughter with scant property like a daughter in respect to brothers, viz.: Just as with a daughter in respect to brothers, the daughter is fed and the sons solicit at the doors, so with a widow in respect to a daughter. The widow is fed and the daughter solicits at the doors.]

הִנִּיחַ בָּנִים וּבָנוֹת וְטֻמְטוּם, בִּזְמַן שֶׁהַנְּכָסִים מְרֻבִּים, הַזְּכָרִים דּוֹחִין אוֹתוֹ אֵצֶל נְקֵבוֹת. נְכָסִים מֻעָטִין, הַנְּקֵבוֹת דּוֹחוֹת אוֹתוֹ אֵצֶל זְכָרִים. הָאוֹמֵר אִם תֵּלֵד אִשְׁתִּי זָכָר יִטֹּל מָנֶה, יָלְדָה זָכָר, נוֹטֵל מָנֶה. נְקֵבָה מָאתַיִם, יָלְדָה נְקֵבָה, נוֹטֶלֶת מָאתָיִם. אִם זָכָר מָנֶה אִם נְקֵבָה מָאתַיִם, וְיָלְדָה זָכָר וּנְקֵבָה, זָכָר נוֹטֵל מָנֶה וְהַנְּקֵבָה נוֹטֶלֶת מָאתָיִם. יָלְדָה טֻמְטוּם, אֵינוֹ נוֹטֵל. אִם אָמַר כָּל מַה שֶּׁתֵּלֵד אִשְׁתִּי יִטֹּל, הֲרֵי זֶה יִטֹּל. וְאִם אֵין שָׁם יוֹרֵשׁ אֶלָּא הוּא, יוֹרֵשׁ אֶת הַכֹּל:

If one left sons and daughters and a tumtum [one whose gender, male or female, is in doubt], the males "push him off" to the females, [saying to him: "Prove that you are a male and share" (with us in the inheritance)]. Where there is scant property, the females "push him off" to the males, [saying to him: "Prove that you are a female and be fed with us."] If one says: "If my wife bears a male, let him get one hundred," if she bore a male, he gets one hundred. [And even though we rule that "if one endows a fetus, it does not acquire," here we are speaking of a deathbed gift to one's son, a man being (more) favorably disposed towards his son (than to others)]. (If one says: "If my wife bears a female, (let her get) two hundred," if she bore a female, she gets two hundred. (If she said:) "If a male, one hundred; if a female, two hundred," if she bore a male and a female [twins], the male gets one hundred and the female, two hundred. If she bore a tumtum, it does not get anything. [This Mishnah is rejected, and the halachah is that a tumtum gets the least (amount) of the two.] If he said: "Whatever my wife bears, let him get…" (and it turns out to be a tumtum), it gets. And if there is no other heir, it inherits everything. [We might think that a tumtum is a distinct type of being and not fit to inherit; we are, therefore, apprised otherwise.]

הִנִּיחַ בָּנִים גְּדוֹלִים וּקְטַנִּים, הִשְׁבִּיחוּ גְּדוֹלִים אֶת הַנְּכָסִים, הִשְׁבִּיחוּ לָאֶמְצַע. אִם אָמְרוּ רְאוּ מַה שֶּׁהִנִּיחַ לָנוּ אַבָּא, הֲרֵי אָנוּ עוֹשִׂים וְאוֹכְלִין, הִשְׁבִּיחוּ לְעַצְמָן. וְכֵן הָאִשָּׁה שֶׁהִשְׁבִּיחָה אֶת הַנְּכָסִים, הִשְׁבִּיחָה לָאֶמְצַע. אִם אָמְרָה רְאוּ מַה שֶּׁהִנִּיחַ לִי בַּעְלִי, הֲרֵי אֲנִי עוֹשָׂה וְאוֹכֶלֶת, הִשְׁבִּיחָה לְעַצְמָהּ:

If one left over sons, grown and small — If the grown ones improved the property [while it was still part of the estate, they have improved it for all (i.e., all share equally in the improvement). [This, when the property improved through the property itself, the brothers not having spent anything of their own, but having hired workers from (the proceeds of) their father's property, the property improving "of itself." But if they themselves dug and planted and spent what was theirs, then what they improved, they improved for themselves.] If they said: "See what our father left us! We shall work (the land) and eat!", they have improved it for themselves. Likewise, if a woman improved the property, she has improved it for all. If she said: "See what my husband left me! I shall work (the land) and eat!", she has improved it for herself. [The Gemara construes this as an instance of a woman's having inherited, e.g., Reuven married the daughter of Shimon, his brother, and died without children, and the daughters of Shimon, his (deceased) brother, inherit him (Reuven). It is found, then, that his (Reuven's) wife, the daughter of Shimon, his brother, inherits him with her other sisters. We might think that because of the reputation she receives as a woman who can "manage (property) and improve (it)," even if she said: "See what my husband left me, etc.!", she is willing to waive what she expended and to share the improvement with the others; we are, therefore, apprised that she has improved it for herself.]

הָאַחִין הַשֻּׁתָּפִין שֶׁנָּפַל אֶחָד מֵהֶן לָאֻמָּנוּת, נָפַל לָאֶמְצַע. חָלָה וְנִתְרַפָּא, נִתְרַפָּא מִשֶּׁל עַצְמוֹ. הָאַחִין שֶׁעָשׂוּ מִקְצָתָן שׁוּשְׁבִינוּת בְּחַיֵּי הָאָב, חָזְרָה שׁוּשְׁבִינוּת, חָזְרָה לָאֶמְצַע, שֶׁהַשּׁוּשְׁבִינוּת נִגְבֵּית בְּבֵית דִּין. אֲבָל הַשּׁוֹלֵחַ לַחֲבֵרוֹ כַּדֵּי יַיִן וְכַדֵּי שֶׁמֶן, אֵינָן נִגְבִּין בְּבֵית דִּין, מִפְּנֵי שֶׁהֵן גְּמִילוּת חֲסָדִים:

If brothers were partners and one of them were awarded a royal sinecure, [it being customary for the king to appoint one man as a tax collector for all the houses of the city for a month or two], it [the entire profit] is shared by all [of the brothers, the position having come to him by virtue of their father. But if he secured it through his sharpness, his eminence, or his wisdom, then his profit is his.] If he fell ill and were healed, he is healed at his own expense. [If he fell ill accidentally, i.e., if he were not neglectful of his health, he is healed from the common fund. But if he fell ill through (excess) of cold or heat, and the like, of which it is written (Proverbs 22:5): "He who guards his soul will stay far from them," of this it is stated in the Mishnah that he is healed at his own expense.] If some of the brothers provided shushbinuth in the father's lifetime — if the shushbinuth returns, it returns to all; for shushbinuth is exacted in beth-din. ["Shushbinuth" — one's taking a meal and a gift to the chuppah (the marriage ceremony) and eating with the groom — who reciprocates when the other takes a wife. And if the father sent shushbinuth, without qualification, with one of his sons, and it returned after the father's death, it returns to all. For it is regarded as a loan, being exactable in beth-din. For one who takes shushbinuth to his neighbor can return and claim it from him in beth-din in corresponding circumstances, i.e., that the marriage of the second be as that of the first — if (marriage with) a virgin, a virgin; if a widow, a widow; if in public, in public; if in private, in private. For the second can say to the first: "I shall do with you only as you did with me."] But if one sends to his neighbor pitchers of wine or pitchers of oil [without a chuppah, or with a chuppah, but without going to eat with him], it is not exacted in beth-din, for it is (an act of) lovingkindness (alone) [i.e., It is not shushbinuth, but a gift.]

הַשּׁוֹלֵחַ סִבְלוֹנוֹת לְבֵית חָמִיו, שָׁלַח שָׁם מֵאָה מָנֶה וְאָכַל שָׁם סְעוּדַת חָתָן אֲפִלּוּ בְדִינָר, אֵינָן נִגְבִּין. לֹא אָכַל שָׁם סְעוּדַת חָתָן, הֲרֵי אֵלּוּ נִגְבִּין. שָׁלַח סִבְלוֹנוֹת מְרֻבִּין שֶׁיַּחְזְרוּ עִמָּהּ לְבֵית בַּעְלָהּ, הֲרֵי אֵלּוּ נִגְבִּין. סִבְלוֹנוֹת מֻעָטִין שֶׁתִּשְׁתַּמֵּשׁ בָּהֶן בְּבֵית אָבִיהָ, אֵינָן נִגְבִּין:

If one sent betrothal gifts to the house of his (prospective) father-in-law [(It was the custom of the groom the day after the betrothal to send to the house of the betrothed jewelry, confections, pitchers of wine and pitchers of oil, and sometimes the groom would go and eat there)] — If he sent there a hundred maneh and ate "the groom's feast" there, even (only) the value of a dinar, they (the betrothal gifts) are not reclaimed [if he or she died (in the interim) or if he decides to divorce her. For (it is presumed that) because of the pleasure afforded him by the groom's feast, he waived them. This, only if he ate (at least the value of) a dinar. But if he ate less than that, he is not presumed to have waived them and he reclaims them.] If he did not eat the groom's feast there, they are reclaimed. If he sent many betrothal gifts, to return with her to her husband's house, they are reclaimed. [And even if he sent few, but specified that they were to be returned with her to her husband's house, they are reclaimed. The common instance is stated, it being the custom to send many gifts to be returned with her to her husband's house; and those that were sent her to adorn herself with in her father's house were generally few.] If he sent a few, to be used in her father's house, they are not reclaimed.

שְׁכִיב מְרַע שֶׁכָּתַב כָּל נְכָסָיו לַאֲחֵרִים וְשִׁיֵּר קַרְקַע כָּל שֶׁהוּא, מַתְּנָתוֹ קַיֶּמֶת. לֹא שִׁיֵּר קַרְקַע כָּל שֶׁהוּא, אֵין מַתְּנָתוֹ קַיֶּמֶת. לֹא כָתַב בָּהּ שְׁכִיב מְרַע, הוּא אוֹמֵר שְׁכִיב מְרַע הָיָה וְהֵן אוֹמְרִים בָּרִיא הָיָה, צָרִיךְ לְהָבִיא רְאָיָה שֶׁהָיָה שְׁכִיב מְרַע, דִּבְרֵי רַבִּי מֵאִיר. וַחֲכָמִים אוֹמְרִים, הַמּוֹצִיא מֵחֲבֵרוֹ עָלָיו הָרְאָיָה:

If a sh'chiv mera (one on his deathbed) wrote over all of his property to others, leaving over some land for himself, his gift stands. If he did not leave over any land, his gift does not stand. [The same applies if he left over movables. And if he rose (from his sickbed), he cannot retract. This, if he (the recipient) acquired that gift from his hand. For a limited gift of a sh'chiv mera requires a kinyan (an act of acquisition), whether or not he recovers. And if the recipient did not acquire it from his hand, he does not acquire it even if he died. This, only when he wishes to confer the gift while alive; but if he instructed that something be given to someone after his death, a kinyan is not required, even if he reserved something for himself. And a sh'chiv mera who wished to confer a gift while alive, if he reserved nothing for himself, and he recovered, he may retract, even if it was acquired from his hand. And when he so instructs because of (what he thinks is his) impending death (as when we hear him say: "Woe unto me, for I am going to die!"), he may always retract, whether or not he reserved something for himself, and even if it were acquired from his hand. And if he died, the other acquires the gift, even without a kinyan.] If he did not write him (in the deed of gift) "sh'chiv mera" [i.e., "when he was sick in bed," or an expression connoting health, e.g., "when he was walking on his feet in the marketplace," and he left over nothing] — If he says: "I was a sh'chiv mera" [and I retract], and the other says: "You were well" [and you cannot retract], he must bring proof that he was a sh'chiv mera. [For we follow the present state. Since he is well now, he must bring proof that he was a sh'chiv mera at the time of the gift.] These are the words of R. Meir. And the sages say: [We do not follow the present state, but we say that] the burden of proof is upon him who would exact (payment) from his neighbor. [And the would-be recipient, who wishes to exact (the gift) from the giver, who now holds it — it devolves upon him to bring proof and witnesses that he was well at that time. The halachah is in accordance with the sages.]

הַמְחַלֵּק נְכָסָיו עַל פִּיו, רַבִּי אֱלִיעֶזֶר אוֹמֵר, אֶחָד בָּרִיא וְאֶחָד מְסֻכָּן, נְכָסִים שֶׁיֵּשׁ לָהֶן אַחֲרָיוּת נִקְנִין בְּכֶסֶף וּבִשְׁטָר וּבַחֲזָקָה, וְשֶׁאֵין לָהֶן אַחֲרָיוּת אֵין נִקְנִין אֶלָּא בִמְשִׁיכָה. אָמְרוּ לוֹ, מַעֲשֶׂה בְאִמָּן שֶׁל בְּנֵי רוֹכֵל שֶׁהָיְתָה חוֹלָה וְאָמְרָה תְּנוּ כְבִינָתִי לְבִתִּי וְהִיא בִשְׁנֵים עָשָׂר מָנֶה, וָמֵתָה, וְקִיְּמוּ אֶת דְּבָרֶיהָ. אָמַר לָהֶן, בְּנֵי רוֹכֵל תְּקַבְּרֵם אִמָּן. וַחֲכָמִים אוֹמְרִים, בְּשַׁבָּת, דְּבָרָיו קַיָּמִין, מִפְּנֵי שֶׁאֵינוֹ יָכוֹל לִכְתּוֹב. אֲבָל לֹא בְחֹל. רַבִּי יְהוֹשֻׁעַ אוֹמֵר, בְּשַׁבָּת אָמְרוּ, קַל וָחֹמֶר בְּחֹל. כַּיּוֹצֵא בוֹ, זָכִין לַקָּטָן, וְאֵין זָכִין לַגָּדוֹל. רַבִּי יְהוֹשֻׁעַ אוֹמֵר, לַקָּטָן אָמְרוּ, קַל וָחֹמֶר לַגָּדוֹל:

One who divides his property by (verbal) behest — R. Eliezer says: Whether he be in good health or close to death, bound property (i.e., land) is acquired by money, deed, and chazakah (an act of "taking hold"), and unbound property is acquired only with meshichah ("pulling"). [R. Eliezer does not hold that the words of a sh'chiv mera are "as written and transmitted," so that even if one instructs (that his property be given to another) because of his impending death, his gift is no gift without a kinyan, just as that of one in good health. The halachah is not in accordance with R. Eliezer.] They (the sages) said to him: Once, the mother of the sons of Rochel was sick, and she said: "Give my daughter my k'veinah; [(The Targum of (Isaiah 3:23): "redidim" (veils) is "k'veinata"] it is worth twelve maneh," and she died; and they acted upon her words! He (R. Eliezer) said to them: "The sons of Rochel — let their mother bury them!" [i.e., No proof is to be adduced from them, for they were wicked, and the rabbis penalized them by upholding their mother's gift to the daughter, though it was not halachically valid.] And the sages say: On Shabbath, his (the sh'chiv mera's) words stand, for he cannot write; but not on a weekday [i.e., if he divided his property on a weekday.] R. Yehoshua says: They stated it for Shabbath — a fortiori (that it obtains) for a weekday. [And this is the halachah — that both on Shabbath and on a weekday, the words of a sh'chiv mera are "as written and transmitted" and require no kinyan. And if he requests that they acquire it from his hand, they do so both on a weekday and on Shabbath so that he not become delirious.] A parallel instance: One can effect acquisition for a minor, but not for a grown person. R. Yehoshua says: They stated it for a minor — a fortiori for a grown person!

נָפַל הַבַּיִת עָלָיו וְעַל אָבִיו אוֹ עָלָיו וְעַל מוֹרִישָׁיו, וְהָיְתָה עָלָיו כְּתֻבַּת אִשָּׁה וּבַעַל חוֹב, יוֹרְשֵׁי הָאָב אוֹמְרִים, הַבֵּן מֵת רִאשׁוֹן וְאַחַר כָּךְ מֵת הָאָב, בַּעֲלֵי הַחוֹב אוֹמְרִים, הָאָב מֵת רִאשׁוֹן וְאַחַר כָּךְ מֵת הַבֵּן, בֵּית שַׁמַּאי אוֹמְרִים, יַחֲלֹקוּ. וּבֵית הִלֵּל אוֹמְרִים, נְכָסִים בְּחֶזְקָתָן:

If the house fell upon him and his father, or upon him and his heirs, and there were (binding) upon him (the son) the kethubah of his wife and (the claims of) a creditor — The heirs of the father say: "The son died first, and then the father" [and the creditor cannot exact payment from this (the father's) property, for the son never acquired it], and the creditors say: "The father died first, and then the son" [and the property fell in that period (between their deaths) to the son, and it is "bound" for payment of his wife's kethubah and (for payment) of the creditors] — Beth Shammai say: They divide. [For they hold that a bill awaiting collection is considered collected, so that the heirs of the father and the creditors are both muchzakim ("holders"), for which reason they divide.] And Beth Hillel say: "the property remains in its status of (adverting to) the heirs, so that it is regarded as "held" by them. And it devolves upon the creditor, who desires to divest them of it to bring proof that the father died first.]

נָפַל הַבַּיִת עָלָיו וְעַל אִשְׁתּוֹ, יוֹרְשֵׁי הַבַּעַל אוֹמְרִים, הָאִשָּׁה מֵתָה רִאשׁוֹנָה וְאַחַר כָּךְ מֵת הַבַּעַל, יוֹרְשֵׁי הָאִשָּׁה אוֹמְרִים, הַבַּעַל מֵת רִאשׁוֹן וְאַחַר כָּךְ מֵתָה הָאִשָּׁה, בֵּית שַׁמַּאי אוֹמְרִים, יַחֲלֹקוּ. וּבֵית הִלֵּל אוֹמְרִים, נְכָסִים בְּחֶזְקָתָן, כְּתֻבָּה בְּחֶזְקַת יוֹרְשֵׁי הַבַּעַל, נְכָסִים הַנִּכְנָסִים וְהַיּוֹצְאִין עִמָּהּ בְּחֶזְקַת יוֹרְשֵׁי הָאָב:

If the house fell upon him and his wife — The heirs of the husband say: "The wife died first and then the husband" [and the heirs of the wife get nothing, the husband having died after his wife and having inherited her], and the heirs of the wife say: "The husband died first, and then the wife" — Beth Shammai say: They divide; and Beth Hillel say: The property [tzon-barzel property (see Yevamoth 4:3)] remains in its status (chazakah). [Beth Hillel did not indicate whether in the chazakah of the heirs of the wife, whose property it was, or in that of the heirs of the husband, whose responsibility it was — for which reason it is divided.]. The kethubah [the one hundred, two hundred, and addition (as the case may be) remains] in the chazakah of the heirs of the husband. The property that comes in and goes out with her is in the chazakah of the heirs of the father (of the woman.) [The reference is to the melog property (see Yevamoth 4:3), which, when she enters, enters with her, and which, when she leaves, leaves with her, whether it depreciated or appreciated. This property is in the chazakah of the heirs of the wife. It is found, then, that the heirs of the wife take all of the melog property and half the tzon-barzel property.]

נָפַל הַבַּיִת עָלָיו וְעַל אִמּוֹ, אֵלּוּ וָאֵלּוּ מוֹדִים שֶׁיַּחֲלֹקוּ. אָמַר רַבִּי עֲקִיבָא, מוֹדֶה אֲנִי בָזֶה שֶׁהַנְּכָסִים בְּחֶזְקָתָן. אָמַר לוֹ בֶן עַזַּאי, עַל הַחֲלוּקִין אָנוּ מִצְטַעֲרִין, אֶלָּא שֶׁבָּאתָ לְחַלֵּק עָלֵינוּ אֶת הַשָּׁוִין:

If the house fell upon him and his mother, [and she has no other son but this one — The heirs of the son say: "The woman died first, and the son inherited her property, and we inherit the son"; and the heirs of the woman, from her father's household, say: "The son died first, and we inherit the woman"] — Both [Beth Shammai and Beth Hillel] agree that they divide. [For since they both come with the power of inheritance, it is doubt against doubt, and they divide. And this is not similar to (the instance of) the house falling on him and his wife. For there, there are two types of property — one in which he is the muchzak (the "holder"), and the other, in which she is the muchzak. But here, all is in the chazakah of the woman, being, as she is, a widow; and both (claimants) come by power of inheritance, to inherit everything — for which reason they divide.] R. Akiva said: Here, too, I say [that according to Beth Hillel] the property remains in its chazakah, [in the chazakah of her heirs from (the household of) her father. For in her lifetime, after her husband's death, she was linked to her father's tribe, and her money, too, in her lifetime, was in the chazakah of her father's tribe. Therefore, the heirs from her father's household inherit her. The halachah is in accordance with R. Akiva.] Ben Azzai said to him: "Over the 'differing,' we grieve, [i.e., Over the aforementioned disagreement between Beth Shammai and Beth Hillel we grieve that they could not concur], and you come to divide for us the concurring!" [i.e., You say that in this, too, they disagree, differing in this from the fist tanna, who says that (in this instance) they concur.]