Many of us are familiar with the aphorism that to assume makes an ass out of u and me. But today the Gemara does just that with regard to a specific type of bequest.
Rav Yehuda says that Shmuel says: A person on his deathbed who writes a document granting all his property to his wife has merely rendered her a steward. It is also obvious that if he writes a document granting all his property to his adult son, he has merely rendered him a steward.
In the Gemara’s hypothetical, a dying man draws up a hasty will bequeathing all of his assets to his wife or son. But the rabbis assume that the man did not intend the wife or son to have the entire estate forever, merely to act as steward for his assets and disburse them to the true heirs. A second statement, from Rav Hanilai bar Idi, extends this reasoning to a minor son who is “lying in his crib.” Even this tiny child, who obviously cannot act as executor for many years, is presumed to be steward rather than sole heir.
This idea — that in certain circumstances we can assume a person intended something contrary to what they actually said or wrote — is a rare but not unprecedented approach to halakhah. But it’s particularly difficult to explain here: Why would we assume that a person who wrote a will leaving their entire estate to one person did not actually mean it? The medieval law codes (the Mishneh Torah and the Shulchan Aruch) posit that the reason is the dying man was anxious to ensure that the other heirs honor his widow or this one son who now holds the purse strings.
But what if the Gemara’s assumption is wrong and the dying person was deliberate in his bequest? Doesn’t the court have an obligation to honor a written will to the letter? How can we assume that the deceased meant something contrary to what he wrote?
In an excellent analysis of this dilemma, Rav Moshe Taragin of Yeshivat Har Etzion explains this halakhic ability to assume a person’s intent, called umdana. An example of umdana is when a person wills his assets to an eldest child, not knowing that they had died in a far away country. In that case, the rabbis reason, the deceased would want to disburse his holdings to other inheritors instead. (See Tosafot to Kiddushin 49b.)
In the case on today’s daf, however, it’s harder to make the assumption that the deceased would want something different from what he wrote because it’s not entirely logical that a person would bequeath his assets to his wife or son and not really mean it. We might like to think that it’s in order to encourage his other beneficiaries to respect his widow or their brother, but how do we know this for sure? We do not. And yet, this is how the Gemara rules. Why?
Perhaps the sages are concerned with family unity and protection of the widow. Making her an administrator for the dead man’s property, rather than his sole heir, is designed to engineer deference (rather than resentment) from his other heirs, at least until his assets are disbursed to them. Similarly in the case of a son, assuming that a total bequest to one child is meant to ultimately include others can foster cooperation — rather than enmity — between siblings.
Read all of Bava Batra 131 on Sefaria.
This piece originally appeared in a My Jewish Learning Daf Yomi email newsletter sent on November 3, 2024. If you are interested in receiving the newsletter, sign up here.
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