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כתובות 96:2
Soncino English Talmud · Berean Standard Bible
Is the estate [of the deceased man] in the presumptive possession of the orphans and consequently it is the widow who must produce the proof, or is the estate rather in the presumptive possession of the widow and the proof must be produced by the orphans? Come and hear what Levi taught: [In a dispute on the maintenance of] a widow, the orphans must produce the proof so long as she is unmarried, but if she was married the proof must be produced by her. R. Shimi b. Ashi said: [This point is a matter in dispute between] the following Tannaim: She may sell [portions of her deceased husband's estate] but should specify in writing, 'These I have sold for maintenance,' and 'These I have sold for the kethubah' [as the case may be]; so R. Judah. R. Jose, however, ruled: She may sell [such portions] and need not specify the purpose in writing, for in this manner she gains an advantage. They thus apparently differ on the following point: R. Judah, who ruled that it is necessary to specify the purpose, holds that the [deceased man's] estate is in the presumptive possession of the orphans and that it is the widow who must produce the proof, whilst R. Jose, who ruled that it was not necessary to specify the purpose, upholds the view that the estate is in the presumptive possession of the widow and that it is the orphans who must produce the proof. Whence [is this made so obvious]? It is quite possible that all agree that the [deceased man's] estate is in the presumptive possession of his widow and that the orphans must produce the proof, but R. Judah is merely tendering good advice [by following which the widow] would prevent people from calling her a glutton. For were you not to admit this, could not the question raised by R. Johanan be answered from the Mishnah: She may sell [her deceased husband's estate] for her maintenance out of court but should enter [in the deed of sale,] 'I have sold these for maintenance'? Consequently It must be concluded that no deduction may be made from the Mishnah because therein only good advice was tendered; and so also here [it may similarly be submitted that R. Judah] was only tendering good advice. Or else: All may agree that the estate [of the deceased] is in the presumptive possession of the orphans, but R. Jose's reason is exactly the same as [that given by] Abaye the Elder who stated: To what may the ruling of R. Jose be compared? To [the instructions of] a dying man who said, 'Give two hundred zuz to So-and-so, my creditor, who may take them, if he wishes, in settlement of his debt or, if he prefers, he may take then, as a gift',
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