The mishnah on 126b states that a person on his deathbed can verbally apportion his property in a manner that does not accord with the Torah’s law of inheritance provided he uses the language of “gift” rather than “inheritance.” The mishnah also permits the fading father to divide his property in writing through his will. Once again, this division, if it does not follow the Torah’s prescription for inheritance, is only effective if the father terms it a gift. The mishnah then says something a little inscrutable about the language in the will:
If he wrote in his will, whether at the beginning, middle or end, that he is granting them the property as a gift, his statement stands.
The Gemara is primarily concerned with understanding why the mishnah felt the need to specify beginning, middle and end. The following explanation is given:
When Rav Dimi came from the land of Israel to Babylonia, he said that Rabbi Yohanan says: “Such and such a field will be given to so-and-so and he will inherit it,” — this is a case where it is phrased as a gift at the beginning. Where he instructed: “And he will inherit it and it will be given to him,” — this is a case where it is phrased as a gift at the end. Where he instructed: “He will inherit it and it will be given to him and he will inherit it,” — this is a case where it is phrased as a gift in the middle.
Rabbi Yohanan clarifies that this mention of beginning, middle and end refers to how the language of gift is situated in relation to the language of inheritance, which also exists in a will. As opposed to the oral statement, where the mishnah stated that once inheritance is mentioned a division cannot be made that contradicts the Torah’s rules of inheritance, when mentioned in the will, so long as there is language of both inheritance and gifting — wherever the latter mention is situated — the division can be treated as a gift and the father’s wishes are upheld.
The Gemara proceeds to limit this principle:
And this pertains specifically to a case where the two terms are employed with regard to one person and one field. But with regard to one person and two fields, or one field and two people, it does not.
If the will says, “Reuven will inherit this field and it will be given to him,” then the behest is effective, even if it’s more than Reuven would receive by virtue of inheritance. But if the will says, “Reuven will inherit this field and this other field will be given to him as a gift,” only the latter field — where the language of gift is used explicitly — is given to him. When inheritance and gift language are used together with reference to the same matter, in a written document, we assume the gift language is intentional and primary; but when they’re used to refer to separate entities, we don’t apply this gift language across the board.
Rabbi Elazar disagrees:
Even in a case where the two terms are employed with regard to one person and two fields, or one field and two people, it works. But with regard to two fields and two people, it does not.
Rabbi Elazar believes that if the term gift is utilized once for two fields given to a single person, or utilized once for any individual field split between two people, we can uphold it. Only for completely separate inheritors and fields does he require the language to be repeated.
Everyone agrees that in the case of a written will (as opposed to an oral behest), the mention of inheritance doesn’t automatically invalidate the father’s attempt to divide his property differently. We expect this language to be in a will, and we allow the gift language to override it. But the rabbis disagree about how specifically the language of gifting needs to be applied for it to be effective. Then, as now, it was likely worthwhile to have an expert draw up one’s will to ensure the language accomplishes exactly what the bequeather wishes.
Read all of Bava Batra 129 on Sefaria.
This piece originally appeared in a My Jewish Learning Daf Yomi email newsletter sent on November 1, 2024. If you are interested in receiving the newsletter, sign up here.
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