Babylonian Talmud

Rodkinson 1918 — source 14, scan section 31

known by tradition. As we have learned in a Boraitha, one must not say, concerning Trepheth (sickness which makes the animal illegal) : This is similar to this. And one should not be surprised, as, if one cuts a piece of the animal from one side, it 283 THE BABYLONIAN TALMUD. may remain alive; and from another side, and it dies imme- diately. R. Assi questioned R. Johanan : " If you, master, declare a Halakha to us, saying that such is the law, may we practise accordingly? And he answered: You shall not practise unless I tell you that such is for practice. Said Rabha to R, Papa and to R. Huna b. R. Joshua: If it should happen that my written resolution in a judgment should come to your hands, and you should see some objection concerning it, you shall not tear it before seeing me; for if I should have some reason to approve it I will tell you, and if not I will retract from it. But if the same should happen after my death, you-shall not tear it, and at the same time you shall not take it for an example for other cases. You shall not tear it, because, if I were alive, probably I would approve it by a good reason; and shall not take it for an example, as a judge has to act only according to his convic- tion and to that wdiich he sees with his own eyes. Rabha questioned : How is it when one bequeaths his estates to one son among others, while he is still in good health ? Shall we assume that R. Johanan b. Beroka's statement is concerning a sick person only, to whom the above-cited passage may apply, but not concerning one who is in good health (when it is not usual for one to divide his estate), or it does not matter, and one may bequeath his estate when he pleases? Said R. Meshar- shia to him : Come and hear the following : R. Nathan said to Rabbi : You have taught the following Mishna : If one has not written in the marriage contract, '* Male children borne of you by me shall inherit the amount mentioned in your marriage contract in addition to their share among their other brothers," he is nevertheless responsible in this respect, as this stipulation is made by the Beth Din (court). And Rabbi answered him : It is to be read in that Mishna, instead of " inherits," they shall " take " (which means a gift, and to this all agree that the father has a right). Thereafter, however. Rabbi said : My youth made me presume to contradict Nathan the Babylonian, as I see now — from the law that male children cannot collect their mother's marriage contract from encumbered estate — that Nathan, who declared the expression of the Mishna to be " in- herited " was right, as if the expression were as I declared, why, then, should they not collect from encumbered estates also? TRACT BAB A BATHRA (LAST GATE). 2.89 (Hence we see that one even in good health has the right to bequeath, etc., as the Mishna treats of one entering into mar- riage.) And who is the one who holds that one may give the preference to one of his sons among others, if not R. Johanan b. Beroka? Hence there is no difference if he does it while sick or in good health. Infer from this that so it is. Said R. Papa to Abayi : Let us see. According to both, no matter if the expression in the Mishna is " inherit " or " take," why should this hold good? Is there not a rule that one cannot grant to some one a thing which is not as yet in his hands? And even according to R. Meir, maintains that one may do so, it is when the thing is in existence, but not as yet in his hands. Here, however, concerning the marriage contract the male chil- dren are not at all in existence, and in such a case even R. Meir admits that one cannot. And if the answer to this question should be: When the court made a stipulation, it is different. Say then that only in a case where the stipulation of Beth Din holds, one can write so, even when he is in good health, but not otherwise? And Abayi answered: After all, it may be inferred that the Halakha prevails in accordance with R. Johanan b. Beroka, from the expression " inherit," as it could state " take " to which there is no opposition ; and the choosing of the expres- sion " inherit " shows that it agrees with R. Johanan. There- after, however, said Abayi : " What I said above is incorrect, as there is another Mishna : If one has not written in the mar- riage contract, ' The female children whom you will bear by me shall remain in my house after my death, and shall be fed from my estates until they shall marry,' he is nevertheless re- sponsible, as this is a stipulation of the Beth Din." Now we see that the two statements which ought to be written in the mar- riage contract are in one case because of inheritance and in the other because of a gift ; and in such a case even the opponents of R. Johanan admit that it is lawful. Said R. Nihumi, accord- ing to others R. Hananiah b. Minumi, to Abayi : But how do you know that one Beth Din has enacted both the stipulations mentioned above? Perhaps they were enacted by two differ- ent Beth Dins? R. Jehudah in the name of Samuel said: If one bequeath all his estates to his wife, it is to be considered that he makes her a guardian only. It is also certain that if he did so to his elder 290 THE BABYLONIAN TALMUD. son, he is considered a guardian only. But how is it if he has bequeathed all his estates to his younger son? It was taught: R. H'nilai b. Aidi in the name of Samuel said that the same is the case even when his younger son was in his cradle. It is certain that if one allot in his will an estate to a son and a stranger, the son is considered a guardian and the stranger acquires title to that which is bequeathed to him as a gift. The same is the case if to his wife and a stranger. It is also certain that when he had bequeathed his estates to his bride who was betrothed (and yet not married), or to his divorced wife, that it is a gift and they acquire title. The schoolmen, however, were doubtful when he did so to his daughter if there were sons, or to his wife if he left brothers; and also to his wife, who had no children, but stepsons. Shall we assume that he appointed any one of them as guardian only, for the purpose that she should be respected by the heirs as long as she lived, or he made them a gift and they acquire title to the estate. Said Rabhina in the name of Rabha: The women mentioned above do not acquire title, as they are considered guardians; except the bride and also his childless wife if she is together with her stepsons, and therefore acquire title). R. Avira, however, said in the name of the same authority that all the above-mentioned women acquire title except his childless wife, if he left brothers; and also his childless wife if she is together with her stepsons.