Siman 160

Since every yevamah is forbidden to perform chalitzah or to perform yibbum within three months of her husband's death, as was written in siman 164, therefore during the entire first three months she is maintained from her husband's property, for she is delayed on his account, and she is like any widow who is maintained from her husband's property. And just as with every widow who is maintained from her husband's property, her handiwork belongs to the heirs, as was written in siman 95, so too with a yevamah, her handiwork belongs to the yavam during this time, for the yavam is the heir. And even though one who is maintained from the property of a yavam does not have her handiwork belong to the yavam, as will be explained, this is because it is not by the fundamental law that she is maintained from the property of the yavam, but rather because of a penalty, as will be explained, and in that case there is no enactment of handiwork in exchange for maintenance; but during the first three months, when by the fundamental law she is maintained from the property of the husband, she is as she was during the lifetime of her husband, in that her handiwork is in exchange for her maintenance (the Beit Yosef wondered at this, and see Beit Shmuel subsection 1).

After three months, she is not supported from the property of the husband nor from the property of the yavam. And even though every widow is supported from the property of the husband as long as she has not married another, as this is among the conditions of the ketubah as written in siman 93, this is because she does not marry another out of respect for the husband; therefore, they instituted maintenance for her. But the yevamah is bound to the yavam; therefore, she has no maintenance from the husband's property when it is in her power to undergo yibbum or chalitzah (Rashi, Yevamot 41b). And from the property of the yavam she also has nothing as long as she has not undergone yibbum (ibid.), for she is no better than any arusah, who has no maintenance until she enters the chuppah. And if he does not want to perform yibbum or chalitzah, she shall summon him to the beit din and they will command him to perform chalitzah or yibbum. And if he does not obey the law, they shall grant her maintenance; but that which she summoned him between him and her, as long as she did not summon him in a beit din, it is nothing.

And our sages, of blessed memory, said (ibid.): If he stood in judgment and fled, she is supported from the property of the yabam; meaning, she sued him in beit din to either perform yibbum or release her, and he fled, she is supported from the property of the yabam because we penalize him (Rashi). And even though according to the essential law he should be obligated, for it is no worse than an arusah whose time to be married arrived and he did not marry her, in which case he is obligated in her sustenance as is written in siman 56, and indeed some say so (the Ramban and the Rashba), nevertheless, it can be said that his obligation is not from the essential law. For it is not similar to an arusah, whom he is obligated to marry, whereas with a yevamah he can perform halizah for her and not be obligated in her sustenance. And since it is by way of a penalty, it appears that this is specifically when he fled because of her, in that he does not want to release her; but if he fled due to another matter, it is not relevant to apply a penalty in this case (so wrote the Hagahot Maimoniot in chapter 18 of Ishut in the name of Rashi, and I did not find this in Rashi). And likewise, if he became ill and did not flee, a penalty is also not relevant (so wrote the Tosafot in the name of Rashi, and I also did not find this in Rashi).

However, most of our teachers ruled that even if he fled due to another matter, or if he became ill and did not flee, he is liable for her sustenance (Tosafot, the Rosh, and Nimukei Yosef ibid.). And it is likewise explicitly stated in the Yerushalmi Ketubot (Chapter 5, Halacha 4) that if he became ill or went to a distant land, it is equivalent to fleeing and he is liable for her sustenance. According to this, it appears they hold that it is a legal obligation and not a penalty, like the opinion of the "some say" that we brought. And even though in the case of illness, even by law one should not obligate him, as we have established regarding a betrothed woman whose time arrived and he became ill, that she is not entitled to sustenance as written in siman 56, this is because he became ill before the time arrived. But if at the arrival of the time he was not ill and the obligation of sustenance fell upon him, even if he became ill afterward, his obligation is not vacated from him (the Rosh). According to this, here too, if he became ill some time before the completion of the three months, he is not liable for her sustenance.

Nevertheless, our teachers wrote that it is a penalty and not the law (Tosafot and the Rosh), and the proof is from the fact that we do not find that they instituted for him her handiwork; on the contrary, in the Gemara (Ketubot 107a) it implies that her handiwork is not his, and if by law he were obligated to provide her sustenance, they should have instituted her handiwork in exchange for her sustenance as with a husband himself (the Rosh). And why did they penalize him? Because he did not perform yibbum immediately at the conclusion of the three months when she claimed from him to perform yibbum or to perform chalitzah. Therefore, it appears that if at the arrival of the time she was a niddah and afterward he fled, she does not have sustenance (Keneset HaGedolah).

They further wrote that specifically when he consented to yibbum and fled is he liable for her maintenance; but if he did not consent except to perform chalitzah, it does not appear that the sages instituted maintenance for her from the yabam even if he fled, since his end is not to perform yibbum but rather to perform chalitzah. And so too, even when he consented to yibbum, specifically when he fled or became ill is he liable for her maintenance; but if he did not flee and did not become ill, even though he delays for a short time from performing yibbum, he is not liable for her maintenance, for it is not common that he would delay from performing yibbum since he is before us and consented, as for a short time that one is accustomed to delay, they did not institute maintenance for her (ibid.). And it is a simple matter that if he stood in beit din and did not promise either to perform yibbum or to perform chalitzah, and pushes her off from one delay to another, that they compel him for maintenance and other matters until he releases her. And we have already explained that her handiwork is hers always as long as he has not performed yibbum, even when she is being maintained, and only before the completion of the three months is her handiwork his for the reason we explained in section 1.

Some say that specifically when he stood in judgment after the three months and fled, he is liable for her sustenance; but if he stood in judgment within the three months and fled after the three months, he is not liable for her sustenance (Rivash, section 4). Our teacher, the Rema, ruled accordingly. And there is no reason for this, for what of it if he stood in judgment earlier? Certainly, if he fled before the three months, even if it continued afterward for a long time, since he was not here at the time the obligation fell upon him, he is exempt. But if he fled afterward, why should he be exempt? And so it appears primary, and perhaps their intention is also thus (see Beit Shmuel section 3 and the Gra section 2, and examine it closely). And it has already been explained that all the laws that apply to one who fled also apply to one who became ill.

This is the wording of the Rambam in the eighteenth chapter of Ishut, law 16: If the yevamah demanded to enter into marriage or to perform chalitzah, and he stood in beit din and fled, or if he became ill, or if the yavam was in the countries of the sea, she is sustained from the property of the yavam without an oath at all. Thus far his words. It is clear from his words that even if he did not consent to yibbum but only to chalitzah, he is liable for her sustenance. And it appears to me that even according to the opinion we wrote in section 6, nevertheless, in our countries where they have the custom only of chalitzah, they agree with the Rambam that he is liable for her sustenance when he fled or became ill after the three months and when he stood in judgment with her. For if not so, he would be able to leave her an agunah forever. And since the essence of the obligation is by way of a fine, as I wrote, if we were to say that in our countries he would not be liable for her sustenance, this law would be nullified entirely and she would remain an agunah forever.

And that which he wrote, "or he was in a distant land," his intention is not that he went to a distant land after he stood in judgment, for if so, he should have said so; rather, his intention is that he was already in a distant land, and she or her agent brought him to judgment there, immediately he is liable for her מזונות. Since he does not dwell with her in the same province, his law is like one who fled or became ill (Kesef Mishneh). And that which he wrote, that we do not administer an oath to her, his intention is according to what he wrote there regarding a widow who is supported from the property of orphans, that she is not supported except with an oath, as he wrote there in law 19; regarding this he says that here an oath is not necessary.

If he left her pregnant, she is supported from the husband's property until she gives birth, for she is restrained because of him, as it is impossible for her to perform chalitzah or yibbum while she is pregnant, as was written in siman 164. And if she gave birth to a viable child, such that she does not require chalitzah, she is like all widows who are supported from their husbands' property until the collection of their ketubot. And if she gave birth to a possible miscarriage, whose law is only to perform chalitzah and not yibbum, she does not have maintenance, but she takes her ketubah immediately (see Beit Shmuel subsection 6, and it requires further study). And such is the law for all those who come forward for chalitzah and not for yibbum. And so too in this time in our lands where we do not perform yibbum, they take their ketubot immediately like other widows, and it will be explained in siman 165, and there the communal enactments regarding this will be explained. And even a yevamah who is fit for yibbum, and in a place where they perform yibbum, if the husband commanded before his death that she be supported from his property, she is supported until the yibbum even after three months (Knesset HaGedolah).

If she fell before a minor yavam and must wait until he grows up, she has no mezonot at all. From the property of the minor she has none, for it is impossible for him to fulfill the mitzvah until he grows up; and from the property of the husband she has none after three months, for this is not called being delayed from him, since from his side she is able to perform chalitzah or yibbum after this time, and if it is because the yavam is not yet fit for this, from Heaven they have penalized her (Gemara). But she takes her ketubah immediately, for presumably he will not perform yibbum but rather will perform chalitzah for her (thus it appears, and see Knesset HaGedolah and Be'er Heitev subsection 4), even in a place where they perform yibbum. For it is explained in the Gemara (44a) that they give him advice that is appropriate for him, that if he is a youth and she is an old woman, they tell him to perform chalitzah and not perform yibbum; and how could we withhold her ketubah for such a long time? And also mezonot she does not have, as I have written.

Our teacher, the Rema, wrote in section 3: Some say that this law, that she is not sustained from a minor yabam, refers to his properties, and even from the dowry that she brought to her husband and he took possession of it. However, if he did not take possession of the dowry, such as if it is still placed in the hands of a trustee, she is sustained from her dowry. All the more so in a case where she says that they should give the properties into her hand and she wants to maintain the principal until the youth grows up and to be sustained from the profit, that they give the money into her hand. Thus far his words. The source of the law is from our teacher Peretz, cited in the Shiltei HaGibborim in the Mordechai, chapter HaCholetz, and there it is explained that it was in the first year after the marriage, and they relied on the enactment that the husband does not inherit in the first year, and they also relied on Rabbeinu Tam, of blessed memory, that as long as it was placed in the hands of a trustee, the husband did not acquire them. Nevertheless, they required the woman to take a minor oath that the principal will be intact until the yabam grows up; see there. And it appears to me that this is simple: that when she has nichsei melog, she is sustained from them, for regarding nichsei melog the yabam is not called "muhcak." And even from nichsei tzon barzel, she is certainly able to consume the fruits, or half of the fruits, according to what will be explained, for the yabam does not have all the fruits of nichsei tzon barzel according to several poskim. Therefore, I wonder why she would not be sustained from the dowry she brought to her husband and he took possession of it, for a dowry has the law of tzon barzel as written in siman 85, and at the very least she has half the fruits as will be explained, and it requires further study. (And one must say that our teacher Peretz holds like the poskim that all fruits of nichsei tzon barzel are his, and regarding the Rema it requires some further study, and delve into this.)

But if properties fell to a shomeret yavam while she was a shomeret yavam, all agree that she has the ability to sell her properties even ab initio. And even though regarding an arusah we maintain in siman 90 that when properties fell to her while she was an arusah she should not sell ab initio, and only ex post facto if she sold or gave it away is it valid, the power of the yavam is not as strong as the power of the arus; for the arusah is his complete wife and one who has relations with her is punished with stoning, whereas a shomeret yavam is only under a negative prohibition, and also perhaps he will perform chalitzah for her. Therefore, his power is not as effective as the power of the arus. And even if the yavam performed maamar with her, it is nothing, for maamar with a yevamah does not effect a full acquisition. There are some of the Rishonim who hold that properties that fell to her after he performed maamar with her, she should not sell ab initio, like an arusah (the Me'or, chapter HaCholetz), but all the other Rishonim did not write so (and so it appears in Yevamot 39a, that according to Beit Hillel maamar is nothing in this matter). And there is no difference in all this whether she fell to yibum from erusin or from nissuin. However, the properties that fell to her while she was still under her husband, the yavam has a right in them as will be explained, and she cannot sell. But if she is a shomeret yavam from erusin and they fell to her when she was an arusah during the lifetime of the arus, she also has the ability to sell ab initio. And the reason is that this is a simple matter, that the yavam is no better than the husband; and since regarding the husband himself while she was an arusah, even though she should not sell ab initio, nevertheless if she sold or gave it away it is valid, as written in siman 90, therefore the yavam's power is weaker in this than the power of the husband, and she has the ability to sell even ab initio. For since the yavam has nothing in her but zika, his hand is weaker than her hand (Rashi, Yevamot 39a, according to Abaye; and even according to Rava his hand is not better than her hand. And one must further study Rashi, Ketubot 83a, s.v. "Nafka mina," see there and examine it carefully).

The Tur wrote: If properties fell to her while she was a shomeret yavam, she may sell or give them away and it is valid, etc. In what case does this apply? Regarding nikhsei melug, but regarding nikhsei tzon barzel she may not sell because the yavam has a right in them. Thus far his words. Our teacher, the Beit Yosef, wondered about this, for how is it relevant to say regarding properties that fell to her while she was a shomeret yavam that they are nikhsei melug or nikhsei tzon barzel? And it is forced to say that while she was a shomeret yavam she brought them to him as nikhsei melug or as nikhsei tzon barzel. Thus far his words. And I wonder greatly at his wonderment, for behold, in the Gemara there it is explicitly stated so, for on the Mishnah which said "properties remain in their status," etc., and "properties that enter and exit with her are in the status of her heirs" when she dies and not in the status of the husband's heirs (and this refers to nikhsei melug and nikhsei tzon barzel), Rava established it there as referring to properties that fell to her when she was a shomeret yavam, see there. Behold, it is explicit like the words of the Tur. And so wrote the Ran, of blessed memory, in Ketubot (chapter 8), and this is his wording: It emerges now according to the system of Rashi, of blessed memory, that nikhsei melug that fell to her when she was a shomeret yavam all belong to the heirs of the woman. Thus far his words. And so wrote the Rashba, of blessed memory, in the sugya of Yevamot there. And perforce it must be said that this is the intention, that she brought them while she was a shomeret yavam under the category of nikhsei melug or under the category of nikhsei tzon barzel (and so wrote the Bach). Alternatively, it is possible to say in its plain sense that at the time she married the husband, she stipulated with him that all properties that would subsequently come into her possession would have the status of nikhsei tzon barzel or the status of nikhsei melug. And since the yavam is the heir to all the husband's rights, it emerges automatically that these properties that fell to her when she was a shomeret yavam follow the first stipulation, and so it appears to me to be the primary explanation.

And know that there is a dispute among our teachers, the Rishonim, regarding the matters of the yavam's rights to her property, both regarding what fell to her while she was a shomeret yavam and regarding what fell to her while she was under her husband. And the dispute is regarding three things: regarding the matters of her right of sale, whether it is within her power; regarding the matters of consuming the produce of her property, whether the yavam consumes it while she is still a shomeret yavam; and regarding the matters of inheritance when she dies, whether the yavam inherits her property when he has not yet performed yibbum nor performed chalitzah for her, as will be explained with the help of Heaven.

The opinion of the Rambam, of blessed memory, in chapter 22 of Ishut is that regarding all her property that fell to her while she was a shomeret yavam, whether they are tzon barzel property or melog property, the yavam has no right in them, neither to inherit her when she dies—and all the property returns to her heirs—and likewise he does not consume the fruits, and likewise regarding sale, for she is able to sell ab initio. And regarding property that fell to her when she was married under her husband, if she dies, her heirs inherit all her melog property and half of the tzon barzel property, and the yavam inherits half of the tzon barzel property and her ketubah, which is to say the maneh and the matayim. And regarding fruits, he holds that the yavam does not consume them at all while she is a shomeret yavam, even from the tzon barzel property that she brought to her husband. And regarding sale, it is not explicitly explained in his words, but from the implication of his wording there, it appears that she cannot sell at all from the property she brought to her husband, even from the melog property that fell to her while she was under her husband. And so it appears explicitly to be the opinion of the Rif in the chapter "HaCholetz" like the opinion of the Rambam (for he holds that the entire sugya of the Shas there and the interpretation of Rava is only according to Beit Shammai, but according to Beit Hillel, the Mishnah is interpreted according to its plain meaning, that it refers to the property she had while she was under her husband, and therefore the Rif omitted the entire sugya).

The opinion of Rashi, of blessed memory, is that nichsei melug that fell to her while she is a shomeret yavam all belong to the heirs of the woman, even if he performed maamar upon her, and she may sell them ab initio, and certainly he does not consume the fruits. Regarding nichsei tzon barzel that fell to her while she is a shomeret yavam, the heirs of the husband and her heirs divide them when she dies, aside from the ketubah of one hundred or two hundred of the husband, which belongs to the heirs of the husband alone. And according to the opinion of Rabbeinu Tam in Tosafot ibid., even the nichsei tzon barzel belong to the heirs of the husband alone, and he is the yavam. But property that fell to her while she was under her husband, everything belongs to the yavam, and her heirs have no portion in this, even her nichsei melug (and more will be explained regarding this); and consequently, she has no ability to sell at all. And from nichsei tzon barzel that fell to her while she was a shomeret yavam, since they divide them in her inheritance, she has the ability to sell half of them; and according to Rabbeinu Tam, that all of them belong to the heirs of the husband, she has no ability to sell from nichsei tzon barzel at all. And this is when she fell from marriage, but when she fell from betrothal, everything is hers and her heirs', and she has the ability to sell as I have written. And the law of the consumption of fruits is like the law of inheritance.

And know that regarding what we wrote, that according to Rashi, of blessed memory, property that fell to her while under the husband, even nichsei melug, everything belongs to the heirs of the husband, who is the yavam—so it appears to me from the sugya in Yevamot. Since according to him the Mishnah deals with property that fell to her while she was a shomeret yavam, it is explicitly clarified that regarding property that fell to her while under her husband, her heirs have nothing in them. And so Rashi wrote explicitly in Ketubot (83b) in the heading "Nichsei Melug," and this is his wording: And Rava disagrees with Abaye and says, if they fell to her while she was under him, everyone agrees the hand of the husband is superior to her hand, and when he died his brother stood to perform yibbum in his place and he is like him; and if she died while she was a shomeret yavam, her heirs have nothing in them, and our Mishnah refers to where they fell to her while she was a shomeret yavam. Thus far his words. Behold, it is explicit according to our words that the yavam is in the place of the husband and he is like him; and just as the husband inherits all her property, nichsei tzon barzel and nichsei melug, so too the yavam.

But the Rashba, of blessed memory, in Yevamot there and the Ran, of blessed memory, in Ketubot there wrote according to the approach of Rashi, of blessed memory, that regarding nichsei melug that fell to her while under the husband, her heirs divide with the yavam when she dies, see there. And I am very wondered by this. And it is true that from the wording of Rashi in Yevamot there, in the heading starting "for his hand is stronger than her hand," and even Beit Hillel admit that the husband's heirs take in the property, thus far his words, it implies somewhat like their words, that they take a portion in the property and Beit Hillel admit to Beit Shammai that the husband's heirs divide with her heirs in nichsei melug, see there. But from Ketubot it implies explicitly as I have written, and the wording of Rashi in Yevamot is according to the approach of the sugya there, see there, and it requires further study. (And the Gra, in subsection 14, wrote that regarding nichsei tzon barzel and nichsei melug that fell to her while under her husband, according to Rashi in both of them they divide, and according to Tosafot both of them belong to the husband's heirs, etc., thus far his words. And it is a wonder, for regarding nichsei tzon barzel even according to Rashi they belong to the husband's heirs, as the Rashba and the Ran wrote. And there is a further difficulty, for Tosafot do not disagree except regarding tzon barzel, see there carefully. And his words regarding Rashi are only if we rule like Abaye according to the opinion of the Gaon brought by Tosafot there, page 39a, heading starting "even though," and it requires great further study).

And regarding the sale of assets, the Rashba, of blessed memory, wrote that whatever is in the possession of her heirs when she dies, she is permitted to sell during her lifetime; and whatever is in the possession of the husband's heirs when she dies, she does not have permission to sell during her lifetime. And regarding the consumption of produce, he holds from the perspective of logical reasoning that the yavam does not consume the produce of nikhsei melug even when he performs yibbum, for the sages did not institute produce for the yavam at all; for with the husband himself, the institution of produce is in exchange for her redemption, and the yavam is not obligated to redeem her, for she has no ketubah against the yavam and she also has no ketubah conditions from him. However, from the Shas in Yevamot there, it implies explicitly that whatever right the yavam has in the body of the land, he has in the consumption of produce. Therefore, the Ran, of blessed memory, wrote that the yavam certainly consumes half of the produce even when she is a shomeret yavam, according to the measure of the right he has in the body of the land as an inheritance when she dies; and when he performs yibbum, he consumes all the produce like the husband himself. And granted that he is not obligated in her redemption, but he inherits all the rights of his brother. See there.

The opinion of the Tur is that regarding nikhsei melug that fell to her while she is a shomeret yavam, the yavam has no right to them at all, as has been written. And regarding nikhsei tzon barzel that fell to her while she is a shomeret yavam, according to Rashi, when she dies they divide them, and according to Rabbeinu Tam, all of it goes to the yavam. And likewise regarding consuming the fruits of the tzon barzel, according to Rashi, she and the yavam divide them, and according to Rabbeinu Tam, the yavam consumes all the fruits. And likewise regarding selling them, she is not permitted; and it is implied from his words that she is not permitted to sell even half, for since he has a right to half of them, they are like partners, and as long as they have not divided in beit din, neither of them is permitted to sell even a portion, as each has an interest in all the properties (Bach, and the difficulty of the Beit Yosef is answered). And properties that fell to her while she was under her husband, in nikhsei tzon barzel, the yavam consumes all the fruits, and if she dies, he inherits her. And likewise he inherits her ketubah and the additional ketubah. And regarding her nikhsei melug, they divide the fruits, and likewise if she dies, her heirs and the yavam divide her inheritance. And regarding selling, she is not permitted at all for the reason we wrote. And this is the opinion of the Rosh, and likewise is the opinion of the Ra'avad in chapter 22 of Ishut (and they also hold like the opinion of the Rashba and the Ran, that in nikhsei melug they divide even what fell to her under her husband, unlike what we inferred from Rashi, of blessed memory).

The words of our teachers, the authors of the Shulchan Aruch, are somewhat puzzling in this matter. This is his wording in section 6: He does not eat the fruits of the nikhsei melug of a shomeret yavam; and in the nikhsei tzon barzel that she brought to his brother, he only has half of their fruits. And there is one who wrote that even in them he has no fruits at all until he enters into marriage, and the first view is primary. And some say that even nikhsei melug that fell to her while she was under her husband, their law is like nikhsei tzon barzel and they shall divide the fruits, and so too they shall divide her inheritance if she dies. And in a place where the fruits are hers, she can sell the land according to her share in the fruits. If she died while she was a shomeret yavam, her heirs inherit her nikhsei melug and half of the nikhsei tzon barzel; and so too if the yavam gave her a gift, her heirs inherit it. And the heirs of the husband inherit the essence of her ketubah and the tosefet and half of the nikhsei tzon barzel. And the heirs of the husband are obligated in her burial. And some say that all nikhsei tzon barzel of hers are in the possession of the heirs of the husband like the ketubah, and one does not extract from their hand if they are in possession. Thus far his words.

And behold, regarding what was written that the yavam has no usufruct from nikhsei melog, this is the approach of the Rambam. But regarding what was written that in nikhsei tzon barzel he has half of the usufruct, it requires investigation who it is that holds this; for according to the Rambam, he has no usufruct at all as long as he has not performed yibbum, and this is the "there is one who wrote" that he cited. And according to the opinion of Rashi, it is true that he consumes half of the usufruct, but this is regarding nikhsei tzon barzel that fell to her while she was a shomeret yavam, and not regarding nikhsei tzon barzel that fell to her under her husband, for in that case the husband consumes all the usufruct, as the Tur wrote. And according to Rabbeinu Tam, even regarding what fell to her while she was a shomeret yavam, he consumes all the usufruct of nikhsei tzon barzel, as the Tur wrote. And it must be said that he follows his own approach, as he wondered about the Tur, that while she is a shomeret yavam the categories of tzon barzel and melog do not apply at all; therefore he holds that according to Rashi and the Ra'avad, in all nikhsei tzon barzel he consumes only half of the usufruct. But it requires investigation, for there is not one of the Rishonim who holds this (and if his intention is to the Ma'or in the chapter "HaCholetz," behold, he also holds regarding usufruct like the Rambam, and the Milchamot holds like the Tur, see there).

And that which he wrote, that there are those who say that even regarding nikhsei melug that fell to her while she was still under her husband, they divide the fruits and the inheritance, and she is permitted to sell half—this is according to the opinion of the Tur, and only regarding the sale do they disagree with him, as he wondered in his great work about what the Tur ruled, that she cannot sell at all, see there. And that which they wrote afterwards, that if she died her heirs inherit all of her nikhsei melug, this is the opinion of the Rambam, and not like what our teacher, the Rema, wrote in the "there are those who say" that we brought, and he did not provide a gloss afterwards because he relied on what he wrote previously. And that which he wrote, that when the yavam gave her a gift her heirs inherit, it is simple, for this is like nikhsei melug; and the same law applies if the husband gave her a gift, the yavam does not inherit her, as it is like nikhsei melug (Ba'er Heitev in the name of the Rashba). And that which he wrote, that the heirs of the husband are liable for her burial, so it is in the Gemara, for her burial is in exchange for her ketubah; and similarly, the yavam is not liable for her medical treatment or for her redemption (Beit Yosef). And that which he wrote, that there are those who say that all nikhsei tzon barzel are in the possession of the heirs of the husband, this is the opinion of all the Rishonim except for the Rif and the Rambam, as has been explained. And it is obvious that we do not extract from their hand if they are the possessors, and when they are not the possessors, it is a legal doubt and they divide.

And there is a question regarding this according to the opinions of the poskim that have been explained, that there are properties from which the yabam consumes the fruits: what shall be done when his brother had several wives and he has the ability to perform yibbum with whichever he desires, yet he is forbidden from performing yibbum with two? From whom shall he consume the fruits? For if we say he shall consume from all of them, this is not logical, as he only performs yibbum with one. And if he consumes from one of them, each one will say, "Consume from that other one." And it appears to me that he may consume from whichever one he desires, for he has the ability to say, "I will perform yibbum with you." And if he afterwards performs yibbum with another, he must repay her, for he should not have consumed from her. And also, the one with whom he performed yibbum does not need to repay him for what he consumed from the other, for she can say to him, "You should have consumed from mine, and since you did not consume, it was not your intention then to perform yibbum with me, and by law you did not consume." But regarding hindering their sale, it appears to me that he can hinder all of them, for they have no loss in this. And regarding their inheritance, there is no question here, for it is obvious that when one of them dies, he has no connection with her, and he is compelled to perform yibbum with another. And this is what our teacher, the Beit Yosef, wrote in section 8: Reuven who died and had two wives, and they remained bound to the yabam, and one of them died, the yabam has no claim to the properties because the second one is before him. Thus far his words. And if the second one died, he inherits her and not the first. And if it is not known which one died first, he takes nothing, for their heirs are certain and the yabam is a doubt, and a doubt does not extract from a certainty, as will be explained before us (Beit Shmuel, subsection 13).

And so too, a woman of uncertain shomeret yavam status who died, such as where the husband had children and it is not known who died first, and she requires chalitzah due to doubt, and the yevamah died—the heirs of the husband, who is the yavam, do not inherit from her; rather, her heirs inherit from her. For her heirs are certain heirs and the yavam is a doubtful heir, and a doubt does not override a certainty, as will be explained in siman 163; see there.

That which we have said, that when the yevamah dies the yavam inherits according to what has been explained, there is a dispute among the poskim if the father of the yavam is alive as to who is the heir. For there are those who say that the yavam is the heir, and even though the father precedes all his descendants in inheritance, nevertheless, since the son was destined to perform yibbum with her and would have taken the inheritance of his brother, even though she died, he is called the heir (Mahariw). And there are those who say that the father is the heir, for as soon as she died the zikat hayevamin ceased and the inheritance fell before whoever precedes in the inheritance of the husband. Our teacher, the Rema, wrote that even though logic dictates according to the latter opinion, and so implies somewhat the wording "the heirs of the husband" in the Mishnah (38a), however, the sugya of the Gemara and the Yerushalmi in the chapter "Ha'ishah Shenafelu" implies that the yavam inherits from the shomeret yavam, and if so, the father has no portion in her inheritance; and if there are many yavamin, see below siman 165. Thus far his words. (See Beit Shmuel subsection 12).

He further wrote that all this applies in a place and time where they do not compel chalitzah, but in a place and time where they compel chalitzah, if so, she was not fit to be taken in yibbum; some say that the property is not in the possession of the yavam, and therefore if she dies he does not inherit her. Consequently, in countries where they compel chalitzah, he does not inherit her according to this opinion. Thus far his words. However, from the words of the Tashbetz brought by our teacher, the Beit Yosef—and this is the law we brought in section 26—it does not imply so, for if it were not so, why is there a need for the reason that a doubt does not remove from a certainty? Furthermore, several great authorities disagree with this (see Beit Shmuel sub-section 11; and know that in the Hagahot Ashri, chapter 8 of Ketubot, he raised a difficulty: how do the heirs of the woman collect? For she herself would only collect with an oath, and a person does not bequeath an oath to his children. And so wrote the Tosafot in Yevamot 38a. And see there in the Tuv Ta'am v'Da'at what he answered regarding this, and it is forced).