Yevamot 38a (לח.) — the Talmud in English

I have one definite path -

It is yours!

I have one definite path among your fields that surround my field. Therefore, says Admon, he acquires it.

But here,

where the doubtful claimant and the sons of the levir came to divide the levir’s estate, after the levir had divided the estate of the deceased brother with the doubtful claimant,

can one say this—

that the doubtful claimant has a definite claim to a particular portion of the inheritance?

After all, he does not know with certainty whether he is the son of the deceased brother or the son of the levir. Rather, he comes by virtue of two doubtful claims: in either case, he is entitled to a portion of the inheritance—either they must return to him half of the deceased’s estate that their father took, or they must give him an equal share, like all the brothers, in their father’s estate.

Therefore, it is only here that we say: “the law stands.” Since he has only doubtful claims, and by virtue of his first doubtful claim he has already divided the estate with the levir and received half of the deceased brother’s estate by virtue of the rule that “property of uncertain ownership is divided between them”—

he can no longer advance an additional doubtful claim that he is entitled to a share in the levir’s estate, and, by virtue of his two doubtful claims, past and present, now acquire, through the claim of “in either case,” the second half of the deceased brother’s estate.

And Rabbi Yirmeya can say to you: I am the one who says

that the law is reconsidered; I can say this

even according to the Rabbis.

Because

the Rabbis said that only there

that he does not receive the path

only because the purchaser said to him

the following:

If you remain silent, you remain silent.

But if not -

I will return the document to its owners, and you will not be able to conduct a legal proceeding with them.

And by virtue of this, he loses his path.

But here,

where the doubtful claimant and the sons of the levir come to divide the levir’s estate—

can one say this ["

If you remain silent, you remain silent"]!

d.

A doubtful claimant and a levir who came to divide the estate of the grandfather,

the father of the brothers.

The doubtful claimant said

about himself:

This man [

I myself]

is the son of the deceased, and half

of the grandfather’s estate

is mine

of mine

.

Whereas the

levir said: You are my son, you are my son,

you are my son,

and you have nothing, not even a little

and you may take nothing from the grandfather’s estate!

The levir is therefore -

certainly

an heir,

while the

other

doubtful claimant -

only a

doubtful

heir.

And a doubtful claimant

who is an

heir cannot dispossess a certain

heir.

e.

A doubtful claimant and the sons of the levir who came to divide the estate of the grandfather,

The doubtful claimant said

about himself:

This man is the son of the deceased, and half,

of the grandfather’s estate,

is mine!

And

if

the sons of the levir said

to him: You

are our brother, and you have a share with us,

and you must divide with us and receive your share as though you were our brother.

It follows that, together with his claim to half of the estate, the doubtful claimant admits that he has no share in the other half of the estate; rather, all of it belongs to the sons of the levir.

Conversely, if there were two sons of the levir, they would admit to the doubtful claimant that he is entitled to one-third of the estate [since, according to their claim, the estate must be divided among the three of them].

Therefore,

half

of the estate

that he admits belongs to them,

the doubtful claimant admits to the sons of the levir that it belongs to them—

they take it,

the sons of the levir take it for themselves.

One-third

of the estate

that they admit belongs to him,

the sons of the levir admit to the doubtful claimant that it is due to him—

he takes it,

the doubtful claimant takes it.

And after they divided the estate in accordance with their admissions [half plus one-third, which is five-sixths],

one-sixth remains,

one-sixth of the estate remains undivided, and they dispute to whom it belongs.

And this portion of the estate

is property of uncertain ownership, and they divide it

between them: they receive half of the one-sixth together, and he receives half of the one-sixth.

v. And if the doubtful claimant dies, and the

grandfather and

the

levir

dispute who is the heir

of the doubtful claimant’s estate.

The grandfather of the doubtful claimant claims that the grandson who died was the son of his deceased son, and that he therefore precedes the levir in the inheritance. For when one of the brothers dies, or when one of the grandchildren dies without sons and there is no levirate marriage [and his father is no longer alive], the father or grandfather inherits the entire estate, and not the brothers.

But if there is levirate marriage, the brother who performs levirate marriage acquires the entire estate, and not the father or grandfather.

Whereas the levir claims that the doubtful claimant who died was his son, and that he therefore precedes the grandfather as his heir.

Or

the

grandfather and

the

doubtful claimant

disputed who is the heir

of the levir’s estate,

when he has no other son—

The grandfather claims that the doubtful claimant was the son of the first brother who died, and therefore that the grandfather is fit to inherit the estate of his levir son.

Whereas the doubtful claimant claims that he is the son of the levir, and that he therefore precedes the grandfather in inheriting his estate.

It is property of uncertain ownership, and they divide it.

Mishna:

A woman awaiting levirate marriage,

who is bound to the levir and awaits his performing levirate marriage with her,

who received an inheritance,

from her father—

Beit Shammai and Beit Hillel agree [

for they dispute below in the Mishna concerning the inheritance of a woman awaiting levirate marriage]

that

she has the right—

to

sell

them and

give

them as a gift.

And

if she did so, the sale [or the gift]

is valid!

And if

the woman awaiting levirate marriage dies,

the woman awaiting levirate marriage—

what is to be done with her marriage settlement,

which is owed to her from her husband’s estate, since he died before her and she is entitled to collect her marriage settlement from his estate?

And likewise—what is to be done with the property that she inherited from her father, whose definition is

“property that enters

with her to her husband

and leaves with her

from him”?

That is, what is to be done with usufruct property, such as land, slaves, or livestock, that a woman brings to her husband as usufruct property, where the principal belongs to her and the produce belongs to her husband?

Do only the heirs of the woman’s paternal family inherit it, as is the law with regard to any woman who dies without a husband and without sons, in which case the heirs of her paternal family inherit her, and not her husband’s heirs?

Or, since she is a woman awaiting levirate marriage [who awaited him, but he did not perform levirate marriage with her], does the levir also have a share in her inheritance?

[Regarding iron-sheep property, see Tosafot. In the book She’elat David, in Even HaEzer, this sugya and the matter of iron-sheep property are explained at length.]

Beit Shammai say: With regard to

“usufruct property,”

they divide it

between

the husband’s heirs,

that is, the levir, who is the heir of the deceased brother,

and the father’s heirs,

of the woman.

For according to Beit Shammai’s definition, a woman awaiting levirate marriage has the status of a “doubtful married woman.”

And since a husband inherits his wife who is married to him, and here it is uncertain whether she has the status of being married to the levir or not, the levir therefore receives half of this property, while the heirs of the yevama’s father receive the other half, by virtue of the uncertainty.

But with regard to her marriage settlement, Beit Shammai agree with Beit Hillel that it remains in the presumptive possession of the husband’s heirs, and that her father’s heirs have no share in it, for the reason that will be explained in the Gemara.

And Beit Hillel say: The property

remains in its presumptive possession

as it stands. Therefore:

a. The right to collect the

marriage settlement

owed to her from the estate of her deceased husband remains

in the presumptive possession of the husband’s heirs.

That is, the heirs of her paternal family are not entitled to collect her marriage settlement from the estate of her deceased husband, because this property is now in the possession of the husband’s heirs.

b.

Property that enters and leaves with her -

is in the presumptive possession of the father’s heirs.

Since even if she had already undergone levirate marriage, the levir would have had only the right to consume the produce, while the property itself would have belonged to her, now that she died without undergoing levirate marriage, it remains in the presumptive possession of her paternal family.

But if he had already

taken her in marriage,

the levir,

she is his wife in every respect,

and he is her sole heir.

Provided that the marriage settlement is recorded -

against the estate of her first husband.

The levir does not become obligated to provide her with a marriage settlement, since “Heaven has granted him a wife.”

Gemara:

The Gemara assumed that the first clause of the Mishna, which states: “A woman awaiting levirate marriage who received an inheritance,” is speaking of a case where she received the property through her father’s inheritance while she was awaiting levirate marriage.

And therefore we inquire:

What is different in the first clause,

when she received the property while she was awaiting levirate marriage, and she is alive,

that they do not dispute,

with Beit Hillel, but agree with them that the property is in her sole presumptive possession, and she is not considered a doubtful married woman, since she may sell and give it away, and her sale and gift are valid—

and what is different in the latter clause,

if she dies,

that they dispute,

with Beit Hillel, and hold that her status is that of a doubtful married woman, and her heirs divide her marriage settlement and usufruct property with the levir?!

And we answer:

Ulla said: The first clause

of our Mishna is speaking of a case

where she fell

to levirate marriage

while betrothed,

and while she was awaiting levirate marriage from betrothal, she received the inheritance from her father’s household.

And

if

the latter clause

of our Mishna is speaking of a case

where she fell

to levirate marriage

while married,

and her father’s property came to her while she was awaiting levirate marriage from marriage.

The Gemara explains Ulla’s distinction and its rationale.

Below, on the following page, the Gemara cites the statement of the Mishna in tractate Ketubot, where Beit Shammai and Beit Hillel dispute the case of a betrothed woman who received property from her father: Beit Shammai permit her to sell it ab initio, while Beit Hillel say that she should not sell it ab initio; however, if she sold it, her sale is valid.

And Ulla holds

that the

bond of a betrothed woman -

creates a “doubtfully betrothed woman.”

Therefore, in the first clause of the Mishna, which speaks of a woman awaiting levirate marriage who received property from her father while betrothed, when she was betrothed to her husband she could sell it [ab initio according to Beit Shammai, and according to Beit Hillel, if she sold it, her sale is valid]—

when her husband dies without having married her, and she becomes a woman awaiting levirate marriage from betrothal, she may continue to sell her paternal property ab initio, as she would have done ab initio while she was married, according to Beit Shammai.

And she may do so by means of a kal va-homer, since now she is not actually the levir’s wife, but is merely bound to him, and is a “doubtfully betrothed woman” to him.

Whereas Beit Hillel hold that only a truly betrothed woman may not sell her paternal property that came to her while she was betrothed.

But with regard to a woman awaiting levirate marriage, who is merely a “doubtfully betrothed woman,” they agree with Beit Shammai that she may sell ab initio the property she received while awaiting levirate marriage from betrothal.

And in the latter clause, which speaks of a married woman whose husband died, where the property from her father came to her while she was awaiting levirate marriage from marriage— and

the bond of a married woman creates a “doubtfully married woman.”

And since when a married woman sells property that came to her, the husband takes it from the purchasers, here too, since the bond of a married woman creates a doubtfully married woman, the property is uncertain.

According to Beit Shammai, dividing the property is preferable.

Whereas according to Beit Hillel, maintaining the property in its presumptive possession is preferable.