Torah Community Connections

Week 109 - Tuesday - 25 December 2001

BAVA BATRA: CHAPTER 8: MISHNAH 5

One who says: So-and-so my firstborn son, shall not take a double portion; so-and-so my son, shall not inherit with his brothers - he has said nothing, for he has made a condition against what is written in the Torah. One who divides his assets among his sons orally, and gave more to one and less to another, or made the firstborn equal to them - his words are valid. But if he said, 'As an inheritance,' - he has said nothing. If he wrote either at the beginning, or in the middle, or at the end, 'as a gift' - his words are valid. One who says, 'So-and so shall inherit me,' in a situation where there is a daughter, 'My daughter shall inherit me,' in a situation where there is a son, he has said nothing, for he has made a condition against what is written in the Torah. R. Yohanan b. Berokah says: If he spoke concerning one who is qualified to inherit him, his words are valid, and if about one who is not qualified to inherit him, his words are not valid. One who assigns his assets to others, and left out his sons, what he did is done, but the spirit of the Sages finds no pleasure in him. Rabban Shimon b. Gamliel says: If he did not have worthy sons, it is remembered to his credit.

Kehati

This mishnah deals with one who disinherits an heir or prefers one of his heirs to the others.

One who says: So-and-so - who is - my firstborn son, shall not take a double portion - after I die, or one who says: So-and-so my son - So-and-so, who is my son, shall not inherit with his brothers - shall not receive any inheritance after I die, he has said nothing, for he has made a condition against what is written in the Torah - what he says contradicts the Torah law that the firstborn receives a double portion and that every son has a right to inherit. Any condition which contradicts the Torah is invalid (B.M 7:11). And even though R. Yehudah rules that in monetary matters such conditions are valid and the halakhah follows him, nonetheless in this case even R. Yehudah would agree that the condition is not valid because one cannot forego a right which is not yet in existence (Gemara). Some explain that since it is said in the Torah section dealing with inheritance (Num. 27:11), "And it shall be to the Children of Israel a statute of judgment," no condition can annul the Torah law (Hameiri).

One who divides his assets among his sons orally - Where one on his deathbed, for example, assigns his assets by an oral declaration, it is considered the equivalent of a deed written and delivered, and there is no need for a formal act of acquisition or for a written deed, and - if in that oral declaration he gave more to one and less to another - he awarded more to one child than he did to another, or made the firstborn equal to them - or he gave to his firstborn the same portion as the others, his words are valid - for a person has the right to give any of his assets by way of gift to anyone whom he wishes, and this would not be "a condition against Torah law."

But if he said, 'As an inheritance' - If he increased the portion of one son or lessened that of another in terms of inheritance, e.g., he said one son was to inherit more than the others, or that the firstborn was to inherit an equal share with his brothers he has said nothing - because he has made a condition against Torah law. If he wrote either at the beginning, or in the middle, or at the end, 'as a gift' - If, besides using the terminology of bequest, he also used an expression of gift, whether he used this phrase at the beginning, e.g., "a gift of this field to my son and he shall inherit it;" or in the middle, e.g., "He shall inherit this field and it shall be given to him and he shall possess it," or at the end, e.g., "He shall inherit this field and to him it shall be given" - his words are valid - as an expression of gift was used. Even though he also mentioned inheritance, nevertheless the condition is valid, for a person has the right to give away his assets by way of gift to whomever he may wish.

One who says: 'So-and so shall inherit me,' in a situation where there is a daughter - who is his proper heir, and all the more so if there is a son; or if one says, 'My daughter shall inherit me,' in a situation where there is a son – For in such a case the son is the proper heir and not the daughter, he has said nothing, for he has made a condition against what is written in the Torah - for he has removed the inheritance from the heir designated by Torah law.

R. Yohanan b. Berokah says: If he spoke concerning one who is qualified to inherit him - if a person has a number of sons, and states that a specific one is to inherit him; or if he has a number of daughters, and states that a specific one is to inherit him, his words are valid - the Gemara explains the reason. The Torah's statement (Deut. 21:16), "And in the day that he causes his sons to inherit him" teaches that the Torah permits a person to make any one of his sons his heir, and likewise, any one of those eligible to inherit him can be made his heir, and if about one who is not qualified to inherit him - as, for example, where he has a daughter yet specifies another person as his heir, or even if he specifies a daughter is to be his heir where he has a son, his words are not valid -

The Gemara explains that the first part of the mishnah, "One who says: 'So-and so shall inherit me"' was also said by Yohanan b. Berokah. So the mishnah is to be understood thus: "One who says: 'So-and so shall inherit me,' in a situation where there is a daughter; 'My daughter shall inherit me,' in a situation where there is a son - he has not said anything ...; but a daughter among daughters or a son among sons, if he said that he or she shall inherit all his assets - his words are valid, for R. Yohanan b. Berokah says: 'If he spoke concerning one who is qualified to inherit him, his words are valid.' On the other hand, if a person expressed himself negatively by saying, 'My son, so-and-so, shall not inherit with his brothers,' even R. Yohanan b. Berokah agrees that such a stipulation is invalid, for he explicitly contradicts what is written in the Torah. Similarly, R. Yohanan b. Berokah agrees that if a person equated his firstborn to his other sons, the stipulation is invalid, as it states (Deut. 21:16), 'He may not make the son of the beloved the first-born before the son of the hated, who is the first born."' The halakhah follows R. Yohanan b Berokah (Gemara).

One who assigns his assets to others, and left out his sons - If a person gave away all his assets to others and left nothing for his sons, what he did is done - the others have acquired whatever was given them, but the spirit of the Sages finds no pleasure in him - the Sages are displeased with his deeds, because he has uprooted the Torah law of inheritance.

Rabban Shimon b. Gamliel says: If he did not have worthy sons it is remembered to his credit - For in such a case, it is proper to remove them from the inheritance. The First Tanna disagrees, however, and holds that even if one's sons do not conduct themselves properly it is not right that they should be disinherited, for they might repent or they might have worthy children. The halakhah follows the First Tanna.

BAVA BATRA: CHAPTER 8: MISHNAH 6

One who says, 'This is my son,' - he is believed; 'This is my brother,' - he is not believed, and he takes with him in his portion. If he died - the assets return to their place. If assets fell to him from another place - his brothers inherit with him. One who died and a disposition of estate was found tied to his thigh that is nothing. If he transferred title through it to another, whether from the heirs or not from the heirs - his words are valid.

Kehati

One who says: 'This is my son' - Even though there was no prior presumption that he was his son, nevertheless, since the person testified that this was his son, he is believed - in regard to inheritance, and this son is entitled to inherit him. Similarly, his statement exempts his wife from yibum or halitzah (see Kidd. 3:8). 'This is my brother' - If A claims B is his brother, he is not believed - and B does not receive a portion of any inheritance alongside with A, as A's brothers do not recognize him as a sibling. Similarly, one is not believed on his own testimony to make a woman subject to yibum or halitzah, if until then the presumption was that she was able to marry freely (Rashbam; Tiferet Yisrael); and he - B, takes - a share of A's inheritance with him in his portion - but not at the expense of the other heirs. If, for example, Reuven and Shimon come to share their father's inheritance, and Shimon comes and testifies that Dan is their brother and Reuven says that he does not recognize him as such then Reuven will take half the inheritance. Of the half which falls to the portion of Shimon, Shimon takes one-third of the total assets because he claims there are three brothers, and the remaining sixth will go to Dan.

If he died - the assets return to their place - the part given by Shimon to Dan from his own portion is returned to Shimon. If assets fell to him from another place - If Dan inherited assets or received them as a gift and then he died, his brothers inherit with him - with Shimon, for Shimon admitted that Dan was their brother. In what case do the other brothers share Dan's estate? If they claimed they did not know that Dan was a brother, but if they denied him and claimed that he was not their brother, then only Shimon, who testified that he was a brother, will inherit Dan (Gemara and commentators). One who died and a disposition of estate - an in extremis document was found tied to his thigh - in such circumstances, one does not assume the will was written by another who placed it there, nevertheless, that is nothing - The document is invalid since he wrote it but did not deliver it to the person whose name was written therein. We therefore take into account the possibility the deceased had changed his mind and decided not to give away his property (Tiferet Yisrael). Some explain the reason why the document is invalid is our concern that the donor did not complete the gift by transfer of the deed to the donee before his death, and the mere contract issued after the donor's death is invalid. (Rashbam; Bartenura).

If he transferred title through it to another - For example, if he said to Reuven, "Take possession of this will on behalf of Shimon" whether from the heirs or not from the heirs - that is to say, even if Reuven was one of the donor's heirs, so that it would appear as if the assets had never left the donor's possession, nevertheless his words are valid - And Shimon obtains title to whatever was written in the document of deed (Ravad; Ramah; Tiferet Yisrael). Some explain the mishnah as follows: If he transferred title through it to another - the dying man transferred title to another while he was still alive, even though the document did not mention the name of that man. For example, he wrote the name of Reuven in the document, and he said to Shimon, Take possession of what is written in this document, whether from the heirs or not from the heirs - even if Shimon was not one of the deceased's heirs, his words are valid - because whatever a person says orally on his deathbed is considered to be equivalent to a deed which was written and handed over (Rashbam; and see Tosefot Yom Tov, who brings another explanation of Rambam according to Maggid Mishneh's interpretation, Hil. Zekhiyah 9:25).

Return to Mishna Yomit Index

Visit the Mishna Yomit Archives