יבמות 38:1 — Soncino English Talmud

my only path lies in your fields', but could such a plea be advanced here! And R. Jeremiah can tell you: I may uphold even the view of the Rabbis, for the Rabbis made their ruling there only because he can tell him, 'If you keep silence, well and good, and if not I will return the deeds to their original owners and you will have no chance to call them to law', but could such a plea be advanced here! Where a 'doubtful son' and a levir came to claim their shares in the estate of the grandfather, the former pleading, 'I am the son of the deceased and half of the estate belongs, therefore, to me', while the levir pleads, 'You are my own son and you have, therefore, no share whatsoever', the levir's claim being a certainty and that of the 'doubtful son' a doubtful one, doubt may not supersede a certainty. Where the 'doubtful son' and the sons of the levir came to claim their shares in the estate of their grandfather, the former pleading. 'I am the son of the deceased and half of the estate is, therefore, mine' while the sons of the levir plead, 'You are our brother and you have a share like one of us', they receive the half which he concedes to them while he receives the third which they concede to him, and thus a sixth remains, which, being property of uncertain ownership, is to be equally divided. Where the grandfather and the levir [claim their shares] in the estate of the 'doubtful son' or where the grandfather and the 'doubtful son' [claim their shares] in the estate of the levir, the estate is to be regarded as money of uncertain ownership and is to be equally divided. MISHNAH. IF A WOMAN AWAITING [THE DECISION OF] THE LEVIR CAME INTO THE POSSESSION OF PROPERTY, BETH SHAMMAI AND BETH HILLEL AGREE THAT SHE MAY SELL IT OR GIVE IT AWAY, AND THAT HER ACT IS LEGALLY VALID. IF SHE DIED, WHAT SHALL BE DONE WITH HER KETHUBAH AND WITH PROPERTY THAT COMES IN AND GOES OUT WITH HER? BETH SHAMMAI SAID: THE HEIRS OF HER HUSBAND ARE TO SHARE IT WITH THE HEIRS OF HER FATHER; AND BETH HILLEL SAID: THE PROPERTY IS TO REMAIN WITH THOSE IN WHOSE POSSESSION IT IS, [HENCE] THE KETHUBAH IS TO REMAIN IN THE POSSESSION OF THE HEIRS OF THE HUSBAND WHILE THE PROPERTY WHICH COMES IN AND GOES OUT WITH HER REMAINS IN THE POSSESSION OF THE HEIRS OF HER FATHER. WHERE HE MARRIED HER, SHE IS DEEMED TO BE HIS WIFE IN EVERY RESPECT SAVE THAT HER KETHUBAH REMAINS A CHARGE ON HER FIRST HUSBAND'S ESTATE. GEMARA. Wherein does the first clause in which there is no dispute between them differ from the final clause in which they do dispute? 'Ulla replied: The first clause deals with a woman who became subject to the levirate marriage while betrothed, and the final clause with one who became subject to the levirate marriage while married. And 'Ulla is of the opinion that the levirate bond of a betrothed woman renders her 'doubtfully betrothed'^ᵃ^ᵇ^ᶜ^ᵈ^ᵉ^ᶠ^ᵍ^ʰ^ⁱ^ʲ^ᵏ^ˡ^ᵐ^ⁿ^ᵒ^ᵖ^ᵠ^ʳ^ˢ^ᵗ^ᵘ^ᵛ^ʷ^ˣ^ʸ^ᶻ^ᵃᵃ^ᵃᵇ^ᵃᶜ^ᵃᵈ^ᵃᵉ^ᵃᶠ^ᵃᵍ^ᵃʰ

^ᵃnote:V. supra p. 236, n. 2.
^ᵇnote:V. loc. cit. n. 3.
^ᶜnote:Of the 'doubtful son', the father of the levir and the deceased.
^ᵈnote:Lit., 'the doubtful'.
^ᵉnote:Lit., 'that man'.
^ᶠnote:He knows exactly by virtue of whose, and by virtue of what rights he advances his claim, and he may consequently be regarded as being in actual possession of the estate.
^ᵍnote:He cannot in any way be sure whose son he is and by virtue of whose rights his claim is advanced.
^ʰnote:Lit., 'take out'.
^ⁱnote:Cf. supra note 3.
^ʲnote:Since it is to be divided into two equal shares between the two sons of the deceased.
^ᵏnote:If for instance, the total number of brothers was three, he is entitled, they claim, to a third of the estate only, and not to a half,
^ˡnote:V. note 13 supra.
^ᵐnote:[H], a sixth of a denar, hence a 'sixth' generally.
^ⁿnote:1 — (1/2 + 1/3) = 1/6.
^ᵒnote:Lit., 'money'.
^ᵖnote:Between the claimants.
^ᵠnote:V. supra note 3.
^ʳnote:[H] the widow of a deceased brother during the period intervening between the death of her husband and the halizah or marriage with the levir.
^ˢnote:Lit., 'there fell to her'. The assumption now is that this occurred during her 'waiting period'. v. supra n. 1,
^ᵗnote:Bequeathed to her by her father or presented to her as a gifts
^ᵘnote:V. supra note 1.
^ᵛnote:V. Glos.
^ʷnote:Her melog property. v. Glos.
^ˣnote:Who is heir to his wife. Husband in this context _ levir.
^ʸnote:In the Gemara it is explained that this refers to the melog property only. In respect to the kethubah Beth Shammai agree with Beth Hillel.
^ᶻnote:It being a matter of doubt whether the levirate bond with the levir constitutes such a close relationship as that of an actual marriage, the right of heirship as between her husband's heirs and hers cannot be definitely determined and the property must, therefore, be equally divided between them.
^ᵃᵃnote:For further notes v. Keth., Sonc. ed. pp. 507 ff.
^ᵃᵇnote:The case where the widow is alive.
^ᵃᶜnote:Beth Shammai and Beth Hillel.
^ᵃᵈnote:Where the widow had died.
^ᵃᵉnote:Why is the widow in the first case regarded as the confirmed possessor of the property and allowed to dispose of it in any manner she desires, while in the second case her right of possession is in dispute, her rightful heirs not being regarded as the lawful and undisputed successors to her property?
^ᵃᶠnote:Lit., 'when she fell'.
^ᵃᵍnote:Between the widow and the levir, due to the obligations of the levirate.
^ᵃʰnote:The levirate bond not carrying the same force as actual betrothal.