In your will are you obligated to provide the inheritance equally amongst all the inheritors or may you favor one or more over the rest? In the Mishna on daf TB Baba Batra 130a Rabbi Yoḥanan ben Beroka holds that you may divide your estate anyway one with two provisos. “Rabbi Yoḥanan ben Beroka says that if he said this about one fit to inherit from him, his statement stands.” (Sefaria.org translation) Only one who is legally able to inherit can be designated to inherit as much of the estate as the bequeathing person desires is the first proviso. In other words, the person cannot disinherit his entire family and give his estate to an outsider as an inheritance. The second proviso the Gemara teaches concerns the firstborn. The double portion the first born receives is a Torah law and cannot be abrogated. After the firstborn receives his double portion, the man may bequeath his estate as he wishes as long as he follows the first proviso.
The case under discussion is a critically ill person, a shekhiv mera’-שְׁכִיב מֵרָע. In modern terms, the person is in hospice. He may not die immediately, but his days are numbered. Because of his tenuous situation, the rabbis were lenient and only required verbal statements instead of the usual document with signed witnesses.
Daf
TB
Baba Batra 131 wants to know may we extend Rabbi Yoḥanan ben Beroka’s position
to a healthy person. The condition of (banin
dikhrin-בְּנִין דִּיכְרִין) even when it is not explicitly written in
the ketubah proves that even a
healthy person can bequeath his estate to whomever child he wishes. “Rav
Mesharshiyya said to Rava: Come and hear a resolution of your
dilemma from a baraita, as Rabbi Natan said to Rabbi Yehuda
HaNasi: You taught in your Mishna in accordance with the opinion
of Rabbi Yoḥanan ben Beroka, as we learned in a mishna (Ketubot
52b): If the husband did not write for her in her marriage contract: Any
male children you will have from me will inherit the money of your marriage
contract in addition to their portion of the inheritance that they
receive together with their brothers, he is nevertheless obligated
as though he had written it, as it is a stipulation of the court and
consequently takes effect even if it is not explicitly stated. This mishna is
in accordance with the opinion of Rabbi Yoḥanan ben Beroka that one may add to
the share of some of his sons at the expense of the others.” (Sefaria.org translation)
If you
remember from our study of massekhet
Ketubot, the rabbis instituted the condition
of male children (banin dikhrin-בְּנִין
דִּיכְרִין) to encourage the father of
the bride to endow his daughter a large dowry. The rabbis were afraid that
fathers of the bride wouldn’t provide a worthy dowry for fear that his daughter
would predecease her husband, the husband would remarry or already have a
second or third wife with children. The husband would die and his children from
the other marriages would inherit his the entire estate. This condition would
ensure the original father would be happy that the money he gave to his
daughter would go to his grandchildren and nobody else.
This
condition of banin dikhrin-בְּנִין
דִּיכְרִין is nowhere to be found in our modern ketubot or enforced. By the time of the Goanim this condition was
annulled for two reasons. First of all, fathers were so generous to the
daughters that there was little or no inheritance left for the sons. Secondly,
the enforcement of the excommunication when not observing this condition was no
longer possible. Nevertheless, Rav Hai Gaon[1]
believed that the condition banin dikhrin-בְּנִין דִּיכְרִין was never annulled.
There were some places that had the custom of collecting money for the banin
dikhrin-בְּנִין
דִּיכְרִין and there are some places they can collect money for the banin
dikhrin-בְּנִין
דִּיכְרִין.
Today not
only is this condition not found it in any ketubah
and it is never enforced.
[1] Hai ben
Sherira (Hebrew: האיי בר שרירא) better known as Hai Gaon (Hebrew: האיי גאון), was a medieval Jewish theologian, rabbi and scholar who served as Gaon of the Talmudic
academy of Pumbedita during the early 11th century. He was born in 939 and
died on March 28, 1038.[1][2][3] He received his Talmudic education from his father, Sherira
ben Hanina, and in early life acted as his assistant in teaching.[4] In his forty-fourth year he became associated with his
father as "av bet din," and with him delivered many joint
decisions. According to Sefer HaKabbalah of Rabbi Abraham ben David (Ravad), he was the last of the Geonim. (https://en.wikipedia.org/wiki/Hai_ben_Sherira)
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